EU’s legal action has fatal flaw: Legal expert exposes bloc’s huge mistake in Brexit move

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European Commission President Ursula von der Leyen has confirmed the bloc will start legal action against Boris Johnson’s move to override parts of the Brexit deal reached with the EU last year. The EU chief said a “letter of formal notification” would be sent to the UK, giving the Government a month to respond.

She condemned the Government’s Internal Market Bill, which outlines the changes to the Brexit deal, and said it breaches “good faith”.

A Downing Street spokesman said they would respond to the letter “in due course”.

If the EU is not satisfied by Britain’s response, the matter could escalate to the Court of Justice of the European Union (CJEU).

But Steve Peers, a Professor of EU Law, Human Rights Law and World Trade Law at the University of Essex, has pointed out a fatal flaw in the bloc’s approach.

When explaining the legal process on Twitter Mr Peers said: “The Commission is using the infringement procedure, which applies if Member States allegedly breach EU law.

“It applies to UK too for now, due to Art 131 of the withdrawal agreement, which gives CJEU (Court of Justice of the European Union) its usual jurisdiction during the transition period, including over the agreement.

“Starting the infringement process doesn’t establish by itself that UK has broken the law.”

He said if the UK makes no changes to the Internal Markets Bill after the deadline, the European Commission can escalate the matter to the CJEU and ask for a ruling on the point of law.

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He said if the case ended up being heard in the Court, and it rules in the EU’s favour, Britain will be bound to uphold the ruling.

Mr Peers said the CJEU currently has jurisdiction over Britain, but he points out a key stumbling block – that the Internal Markets Bill outlines a clause that would prevent CJEU rulings from having any impact at domestic level.

He said: “IF the Court rules in the Commission’s favour it’s binding on the UK at international level.

“But the bill, if passed, purports to block any impact of CJEU rulings at domestic level.

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“Someone might try to litigate in UK courts on that.”

The law professor said the EU would then be forced to enter into arbitration, which could see fines imposed on Britain for failing to adhere to the terms of the Withdrawal Agreement.

The bloc could also decide to suspend parts of the deal.

But he said the two sides are likely to make compromises in the coming weeks.

Mr Peers said: “But ultimately this may be political theatre on the EU side, to match the UK.

“There are lots of ‘off ramps’ in an infringement proceeding – most of these cases are settled before they ever reach the CJEU.

“Possible for case to be dropped if the bill is amended as part of a deal.”

But the UK Government has shown no signs of backing down.

An official spokesman said: “We have clearly set out our reasons for introducing the measures related to the Northern Ireland protocol.

“We need to create a legal safety net to protect the integrity of the UK’s internal market, ensure ministers can always deliver on their obligations to Northern Ireland and protect the gains from the peace process.”

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