Tuesday, 27 Oct 2020

Brexit row: Von der Leyen told ‘there is nothing EU can do’ – legal action to backfire

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European Commission President, Ursula von der Leyen, confirmed earlier this month that the EU will take legal action against the UK over the Internal Market Bill. She said: “We had invited our British friends to remove the problematic parts of their draft Internal Market Bill by the end of September. “This draft bill is, by its very nature, a breach of the obligation of good faith laid down in the withdrawal agreement.

“Moreover, if adopted as is, it will be in full contradiction to the protocol on Ireland and Northern Ireland.”

The Internal Market Bill was passed by Parliament, but not without days of controversy, as well as anger from Brussels.

While Brussels takes the legal route, one expert believes the process could ultimately prove futile.

Michael Dougan, a professor of European Law at the University of Liverpool, told Euronews that in the event the infringement proceedings run their full course and the UK is found to be at fault by an EU court, there is not much the bloc can do if London decides to go rogue.

He said: “The Withdrawal Agreement provides that the Court of Justice of the European Union (CJEU) will continue to exercise jurisdiction over existing cases through to their completion in accordance with Union law.

“The problem is, if the UK is intent on acting like a rogue state, ignoring not just the Withdrawal Agreement but also any CJEU ruling, there is not much the EU can do about it.

“The main recourse would be political and diplomatic, for example, halting any further negotiations or cooperation.

“Though, of course, the UK’s reputation as a law-abiding international actor would sink even further into the mud.”

The process of the legal action – known as an infringement procedure – goes as follows.

First, the Commission sends a letter of formal notice to the member state concerned and sets out a time frame for a response.

If Brussels deems the reply to be unsatisfactory and that the country is contravening EU law, it then sends a reasoned opinion — a formal request to comply with the bloc’s law — and once again sets a deadline for a response.

If the member state still does not comply, the Commission can then decide to refer the matter to the CJEU.

Most cases are settled before they are referred to the court.

If the CJEU rules against the member state, the country in question must then take the necessary steps to abide by the rules, otherwise the Commission can then request that the court imposes a financial penalty.

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MSPs in Holyrood voted against the Internal Market Bill by votes to 28 amid the Brexit trade talks.

The Scottish government argues that Holyrood’s consent is required under the Sewel Convention – which says the UK government will normally consult devolved bodies before passing a law that affects powers they exercise.

However, the Scottish Tories argued that the legislation will protect jobs and deliver “significant” new powers.

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