In Depth

How the EU’s lawyers may hit back at Boris Johnson’s Brexit plans

Ursula von der Leyen announces that UK is on formal notice over Internal Markets Bill

The European Union has launched legal action against the UK over Boris Johnson’s bid to override parts of the Brexit withdrawal agreement.

European Commission President Ursula von der Leyen confirmed today that a letter would be sent to Britain to kick-start the EU’s pre-litigation process.

The announcement came after the Internal Market Bill, which will unilaterally alter elements of the Brexit withdrawal agreement breaking international law, passed through the House of Commons on yesterday.

What legal action can the EU take?

The Internal Market Bill contains a number of clauses that effectively override parts of the Northern Ireland protocol found in the original withdrawal agreement signed last year.

The backtracking on the Brexit treaty provoked anger in both Westminster and Brussels, with von der Leyen saying previously that she was “very concerned” by the bill, which “breaks international law and undermines trust”.

Despite the proposed legislation gaining assent to the Lords, von der Leyen has confirmed that the EU will uphold its side of the deal, saying “the Commission will continue to work hard towards a full and timely implementation of the Withdrawal Agreement. We stand by our commitments”.

Lawyers for the bloc have suggested that EU courts have the potential to “impose a lump sum or penalty payment” on the UK.

Brussels could also use the dispute settlement mechanism under the withdrawal agreement, “which may ultimately also result in the imposition of financial sanctions by the arbitration panel”, the document says.

The lawyers “say it is unlikely a case could be launched before the end of the year”, the BBC reports. But legal action could be taken at the European Court of Justice or through the dispute settlement mechanism after the transition period ends on 31 December, the lawyers suggest.

And this could lead to “significant financial penalties”, as the EU believes the bill represents a “clear breach” of the withdrawal agreement.

However, Politico says out that the legal road is “long and uncertain”, with it being “far more likely that the two sides would reach a political agreement before any process could be completed in the courts.”

With the bill unlikely to pass through parliament until December, if both sides show willing, there is still time to reach a compromise.

What is the mood in Brussels?

Johnson’s decision to upend the withdrawal agreement has further soured the already fractious relationship between the UK and the EU.

MEP Manfred Weber, head of the main center-right group in the European Parliament, has warned that “no-deal is becoming more likely every day”.

In early September, an EU official told Politico that the UK’s recent conduct was “shocking” and a “carpet-bombing”.

“It’s always hard to make a rational analysis of the moves of a populist government,” the official said. “But this can no longer be seen as a political strategy to build up to a compromise. It’s a clear intention to pave the way toward a no-deal.”

Another EU source added that “in four years of negotiations, this is the absolute low”.

Emergency talks took place between EU official Maros Sefcovic and UK Cabinet Office Minister Michael Gove this week, prior to the commons vote, with the former reiterating once more that “the Withdrawal Agreement is to be implemented, not to be renegotiated — let alone unilaterally changed, disregarded or disapplied.”

In much the same vein, after the legal action was announced a senior EU diplomat told the Financial Times that “in the end, if there is a deal on the trade talks there will have to be a ‘grand bargain’ where the UK drops the offending clauses of the internal market bill if it wants the deal to be ratified on the EU side.”

Politicians from other parts of the globe have also condemned Johnson’s plans to renege on the treaty.

Speaker of the US House of Representatives Nancy Pelosi has warned that there is “absolutely no chance” of the US signing a post-Brexit trade deal with the UK if the Northern Ireland peace process is jeopardised.

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