The European Commission has launched a formal infringement process against the UK by sending the UK government a letter of formal notice for breaching its obligations under the Withdrawal Agreement. The UK government has one month to reply to this letter.
By failing to withdraw the contentious parts of the Internal Market Bill (the Bill), the UK government has breached its obligation to act in good faith set out in Article 5 of the Withdrawal Agreement. If adopted, the Bill would violate the Protocol on Ireland/Northern Ireland; it would allow the UK authorities to disregard the legal effect of the Protocol’s substantive provisions under the Withdrawal Agreement. The Bill has passed to the Lords after MPs in the House of Commons voted 340-256 in favour.
Different steps in the infringements procedure: Article 258 of the Treaty on the Functioning of the European Union (TFEU) gives the Commission, acting as Guardian of the Treaties, the power to take legal action against a Member State that is not respecting its obligations under EU law. The infringement procedure begins with a request for information (a Letter of Formal Notice) to the Member State concerned, which must be answered within a specified period, usually two months. If the Commission is not satisfied with the information and concludes that the Member State in question is failing to fulfill its obligations under EU law, the Commission may then send a formal request to comply with EU law (a Reasoned Opinion), calling on the Member State to inform the Commission of the measures taken to comply within a specified period, usually two months. If a Member State fails to ensure compliance with EU law, the Commission may then decide to refer the Member State to the Court of Justice. However, in almost 95% of infringement cases, Member States comply with their obligations under EU law before they are referred to the Court. If the Court rules against a Member State, the Member State must then take the necessary measures to comply with the judgment. In the specific case of Member States that have failed to implement Directives within the deadline agreed by the EU's Council of Ministers and the European Parliament, the Commission may request the Court to impose a financial penalty on the Member State concerned the first time the Court rules on such a case. This possibility, introduced by the Lisbon Treaty, is laid down in Article 260 (3) of the TFEU.
Sidley Austin LLP provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship.
Attorney Advertising - For purposes of compliance with New York State Bar rules, our headquarters are Sidley Austin LLP, 787 Seventh Avenue, New York, NY 10019, 212.839.5300; One South Dearborn, Chicago, IL 60603, 312.853.7000; and 1501 K Street, N.W., Washington, D.C. 20005, 202.736.8000.