The UK has already breached the Withdrawal Agreement (WA) when it tabled amendments to a Brexit bill, a leaked EU document has alleged, as it hints it could take Boris Johnson to court.
Britain may have already breached the WA by tabling changes to the internal market bill, a leaked EU legal opinion published in The Guardian has claimed.
The European Commission believes Boris Johnson broke terms of the Agreement by taking steps to introduce draft legislation that would override key aspects of the WA.
‘Already by tabling the draft bill and pursuing the policy expressed therein, the UK government is in violation of the good faith obligation under the withdrawal agreement (article 5) because this bill jeopardises the attainment of the objectives of the agreement’, the commission lawyers wrote.
The document said EU member states could pursue ‘legal remedies’ against Britain through the European Court of Justice (ECJ) before the end of the Brexit transition period which could see the UK hit with significant fines and trade sanctions, the paper reports.
The legal opinion goes on to say that any implementation of the bill would be in ‘clear breach of substantive provisions of the protocol’ concerning the flow of goods between Northern Ireland and Great Britain and EU state-aid rules.
The EU lawyers wrote: ‘Once the bill is adopted (as proposed), the Commission may initiate infringement proceedings against the UK for breach of the good faith obligations.
‘Even before the bill is adopted, it could be defendable to bring infringement proceedings on the same grounds.’
They added: ‘Given the length of the pre-litigation phase, it is unlikely that the case against the UK can be brought to the court before the end of the year.
‘However, infringement procedures for facts occurred before the end of the transition period can be brought to the court during four years after the end of the transition.’
It said the ECJ could ‘impose a lump sum or penalty payment’ on the UK, or Brussels could use the dispute settlement mechanism under the withdrawal agreement, ‘which may ultimately also result in the imposition of financial sanctions by the arbitration panel’.
‘In case of non-payment or persisting non-compliance, the complaining party is entitled to suspend its obligations arising from the Withdrawal Agreement (with the significant exception of the provisions relating to citizens) or from the future EU/UK agreement,’ it read.
A EU diplomat told The Guardian Brussels had been caught off-guard by the changes.
‘In four years of negotiations this is the absolute low. They could at least have tried to fudge it,’ the source said.
‘UK ministers are getting the powers to overrule not only international but also national law? By now we’re well used to seeing this in other parts of the world but Britain?
‘We still strive to come to an agreement within the limited time that remains as the basis for future relations. The importance of a functioning governance clause has only increased after the last couple of days.’
The development comes as cabinet minister Michael Gove has arranged to meet senior EU official Maros Sefcovic in London on Thursday to discuss the situation while UK and EU officials brace for a ‘extraordinary meeting’ of the Joint Committee in the capital.