The European Commission has launched legal action against the UK, after MPs passed the Internal Market Bill, which overrides parts of the withdrawal agreement. The EU had set Britain an end of month deadline to withdraw the clauses in the Bill, which it said broke international law. The Commission said it would “not be shy” in taking “legal remedies” unless the UK backed down over the provisions on state aid and export declarations on goods from mainland Britain to Northern Ireland.
Downing Street refused the same day and the Bill was passed earlier this month by 340 votes to 256.
President of the European Commission Ursula von der Leyen 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 deadline lapsed [on Wednesday]. The problematic provisions have not been removed. Therefore [on Thursday morning], the Commission has decided to send a letter of formal notice to the UK Government. This is the first step in an infringement procedure.”
Brexit panic: EU’s negotiating tactics unravelled as ‘lack of good will’
Meanwhile, the talks on the future trade relationship continue – but with little progress in sight.
As tensions are set to rise in the coming days and the clock ticks down, Lee Rotherham, the former director of Special Projects at Vote Leave, explored the rationale behind why the UK Government might genuinely feel unsafe in the arrangements as they stood.
He wrote: “So, as we approach an eschatological moment in the Brexit talks, now seems an appropriate moment to consider the declared objectives of the EU negotiators that might generate legitimate concerns.
“Of course, there is the backdrop – the dire track record of the EU itself, from stitching up John Major over his Social Chapter opt out and then David Cameron over his Eurozone bail out opt out.
“Then there is the methodology itself, from Michel Barnier demanding the backstop be locked in first before discussing anything else (the Sequencing blackmail scandal – a stance which risked an instant ‘hard border’), to the first draft text listing transition ending at some point before the end of the year ’20XX’.
“But let’s instead simply focus on the cornerstone of the EU’s negotiating mandate, specifically what Team Barnier were instructed to get out of the negotiations and how they set about the mission.”
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Prime Minister Boris Johnson
President of the European Commission Ursula von der Leyen
First of all, Mr Rotherham argued the problem that clearly arises from the negotiating mandate, published earlier this year, is that it has generated gaps the negotiator is able to interpret, as well as conflictions that he has been able to deploy as an anchor against pursuing Free Trade options.
For example, the Council notes that “Article 184 of the Withdrawal Agreement provides that the Union and the United Kingdom are to use their best endeavours, in good faith and in full respect of their respective legal orders, to take the necessary steps to negotiate expeditiously the agreements governing their future relationship referred to in the Political Declaration and to conduct the relevant procedures for the ratification or conclusion of those agreements, with a view to ensuring that those agreements apply, to the extent possible, as from the end of the transition period”.
Mr Rotherham explained: “Two important instructions here emerge from almost the same breath. The first implicitly recognises that the UK has a different legal tradition and democratic framework.
“This is an acknowledgement that has been signally forgotten over the UK seeking domestic safeguards from the Commission seeking to force EU rules on the internal UK market.
“The second is a clear instruction to get the deal done within the set time frame. Yet two explicit deadlines, over Fisheries and the Services Deal, have signally not been pursued by the Barnier Team with the called-for level of energy.”
Moreover, the former Vote Leave strategist claimed that proof of “lack of good will” is contained in Paragraph 33.
This states that “the parties should, consistently with Union rules, address issues relating to the return or restitution of unlawfully removed cultural objects to their countries of origin”.
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UK’s chief Brexit negotiator David Frost with his EU counterpart Michel Barnier
EU’s chief negotiator Michel Barnier
Mr Rotherham added: “It transpired that when the negotiating objectives were being discussed, Greece, reportedly with Italy’s backing, inserted a clause demanding the Elgin Marbles back.
“While clearly negotiating mandates are set to protect national interests, the inclusion of this into a free trade agreement (FTA) when not even covered in the existing EU treaties is absurd, particularly for a country that is particularly engaged in protecting global heritage at risk (this author successfully proposed the policy behind establishing a Cultural Protection Fund in 2016; and the British Museum which houses the Marbles itself is heavily engaged in outreach with counterparts in for example Iraq).
“The objective does perhaps serve some other Member States’ interests in seeking to undermine not simply UK museum holdings (by peculiarly setting precedent over their own), but also the auction market. In the context of the shenanigans that underlay the EU’s droit de suite (Artists’ Resale Rights) legislation, as a serious contribution to generating a lasting agreement based on mutual trust, it falls dramatically short.”
He concluded for his piece on Briefings for Britain: “The subsequent track record of the EU in twisting the text of signed treaties to get its own way at UK expense is justification enough for the UK to include a safety valve in future UK-EU relations.
“The attempt by Greece to shovel in the issue of the Elgin Marbles should naturally encourage negotiators to review the small print, but it has always been the approach of Barnier that should encourage us be alert as to pitfall clauses in the end text – ever since he was caught on camera stating that he intended to tell UK negotiators ‘brutally, but calmly’ that continued UK payments into the EU were non-negotiable, but that this should not be admitted publicly.
“It is clear from his speeches that the EU’s negotiator has been seeing the talks not so much as an opportunity for safeguarding trade on the EU side, but as a mechanism to manage a threat.
“Perhaps he would have been more engaging had he not been thwarted in his bid to become Commission President.”