Market Bill: is the EU’s legal action against the UK premature?
Update 4th Nov: To challenge a decision, one needs this decision to be taken. In the same way, before a breach of law occurs, there is no breach of law.
DISCLAIMER: Please keep in mind the topics of Public International Law and EU Law are very complex. This blog only draws some hypotheses basing its reasoning on a number of available official sources, essentially online ones. This is not a definitive view or legal advice of any kind. The views expressed below could evolve upon new information.
Thank you for understanding. Contributions and comments are welcome, as usual. You can leave comments at the end of this post too.
Update: Sat 31st Oct- 4th Nov 2020
The UK Government didn’t respond by 31st Oct to a deadline set by the European Union for replying to its legal notice regarding the Prime Minister’s Market Bill.
The Government published its Legal position a month ago.
Our analysis is that a) ignoring the deadline was the right move and b) the EU appears persisting in breaching its own rules: that such a legal move is premature is constant since a case in 2000 between the Commission and the Netherlands (Holland).
The case is also premature for reasons already explained: before the Market Bill becomes statute law with Her Majesty’s Royal Assent, it is a draft and therefore can’t be considered as a decision or a legal Act of Parliament as such.
What a quite fantastic picture pencilled by the whole controversy and animated debates around the United Kingdom Internal Market Bill, hereinafter ‘Market Bill’!
The EU has indeed recently started an Infringement Procedure against the UK for allegedly breaching its international legal obligations under the Withdrawal bill.
To learn more about this procedure and its stages, here is an official summary.
In this case, the EU alleges that the only fact that the UK currently discuss the Market Bill in Parliament amounts to a breach of UK obligations under the Withdrawal Agreement.
The EU statement says that (Source here):
” Article 5 of the Withdrawal Agreement states that the European Union and the United Kingdom must take all appropriate measures to ensure the fulfilment of the obligations arising from the Withdrawal Agreement, and that they must refrain from any measures which could jeopardise the attainment of those objectives. Both parties are bound by the obligation to cooperate in good faith in carrying out the tasks stemming from the Withdrawal Agreement.
On 9 September 2020, the UK government tabled a Bill (‘United Kingdom Internal Market Bill’) that, if adopted, would flagrantly violate the Protocol on Ireland / Northern Ireland, as it would allow the UK authorities to disregard the legal effect of the Protocol’s substantive provisions under the Withdrawal Agreement. Representatives of the UK government have acknowledged this violation, stating that its purpose was to allow it to depart in a permanent way from the obligations stemming from the Protocol. The UK government has failed to withdraw the contentious parts of the Bill, despite requests by the European Union.
By doing so, the UK has breached its obligation to act in good faith, as set out in Article 5 of the Withdrawal Agreement. Furthermore, it has launched a process, which – if the Bill is adopted – would impede the implementation of the Withdrawal Agreement. As a result, the Commission has launched infringement proceedings today in line with the provisions of the Withdrawal Agreement.“.
The Treaty on the Functioning of the EU (TFEU) states the following about the Infringement procedure:
“According to the EU treaties, the Commission may take legal action – an infringement procedure – against an EU country that fails to implement EU law. The Commission may refer the issue to the Court of Justice, which in certain cases, can impose financial penalties.” (original source here).
It is good to remember at the margin that the Court of Justice of the EU (CJEU) has recognised that the Commission has discretionary powers in this area – for example, it may quite flexibly consider that there is sufficient evidence of a breach of Community Law. Such great latitude given to the Commission’s freedom in appreciating the existence of a breach of law is a source of concern because triggering a legal action appears driven by its discretionary own view and relative independence to the issue for being both party to the agreement and the judge deciding of the existence or not of a legal breach.
Ursula Von der Layen stated “This draft bill is, by its very nature, a breach of the obligation of good faith, laid down in the Withdrawal Agreement.”. She appears focusing on the intentions of the UK and the appreciation of their good faith before even the alleged breach of International Law coming from the current wording of the Market Bill discussed in Parliament.
Indeed, the Market Bill is currently in its Second reading, in the House of Lords (on 5th October 2020, more details on the whole procedure here). The Bill is not voted on yet and doesn’t exist. Its exact final intention and effects are not yet known because its content is still under discussion. Moreover, it could even be withdrawn by the Government at any time too.
The UK has published its official legal position here, to which the EU doesn’t refer, rather only pointing to the declaration of the Northern Ireland Secretary, a member of the government, who is known for having made declarations going in the sense of an apparent recognition of a breach of international law in, he said, a “specific and limited way” by the Market Bill’s project. It is not clear what he exactly meant by this, how far it is correct and also how it engages or not the Government who, as we just said above, published its official legal position, in which the conclusion is that there is no breach, also highlighting that “in the difficult and highly exceptional circumstances in which we find ourselves, it is important to remember the fundamental principle of Parliamentary sovereignty.”.
One fundamental question is, therefore: do ministers break any rule of UK law if they introduce in Parliament a bill that conflicts with a treaty? We believe that no. Because introducing the Bill for discussion is not yet having it become Statute Law. It is also a mark of UK sovereignty, and “That sovereignty, as the Supreme Court has recently acknowledged, includes the authority to make and unmake any law whatever.”, as remembered to readers John Finnis QC and John Larkin QC in The Spectator on 10th Sept.
The Withdrawal Agreement itself also offers the UK the possibility, in exceptional circumstances, to distance itself from certain of its obligations. What is happening appears therefore taking place under and in compliance with the Withdrawal Agreement itself.
And if there was a need to add one more key point to the debate about the articulation between sovereignty and EU Law, the German Constitutional Court of Karlsruhe in October 1986 decided in a case popularly known as Solange II concerning the conflict of law between the German national legal system and European Union law, that any EU law may be transposed into the German Constitutional order only if this EU law was compatible with this internal constitutional order.
We are not aware of any disposition in the TFEU or resulting CJEU judgment allowing the EU to engage in legal actions against a Member State on the sole basis of an allegation that this state member would or could breach EU law sometime in the future.
To challenge a decision, one needs this decision to be taken. In the same way, before a breach of law occurs, there is no breach of law (and presumption of innocence and conformity to the law).
What the EU appears willing to sue are the UK’s government intentions rather than established facts, which could only be a final version of the Market Bill voted by the Parliament and being granted Royal Assent from Her Majesty the Queen, thereby becoming an Act of Parliament.
Such an EU move – alleging that a project of a Bill in progress breaches international law – seems rather highly unusual given that, as said above, the bill is still being discussed, and its final wording is not yet established, hence the objective difficulty to know which intention of the UK legislator precisely the EU would refer to when pretending it breaches trust and international law…
Shall an EU Member State’s Parliament ask now the permission of the Commission to be allowed to sit and discuss any matters of their own national interest?
More broadly taken, this case recalls strangely what the reader will certainly have followed in its time: Miller Case 1 under Theresa May’s tenure.
Indeed, as analysed in a past blog in September 2019 just hours before the Decision of the Supreme Court related to the Prorogation of Parliament issue, we wrote that “Miller case 1 managed to bring to Court a decision that was not taken yet” while “shortly following similar case Yalland and Wilding on art 127 EEA was judged this time “premature”.
The legal action engaged by the EU seems to be premature and therefore null and void.
Discussions regarding the Market Bill are Parliamentary sovereign discussions, and this discussion certainly is not a breach of any International engagements yet. We believe anecdotic to mention that the UK Parliament (but it is true for any EU Member State’s parliament) doesn’t need anyone’s authorisation to sit and discuss any matter of interest.
Now, whether the final Market Bill will or not breach International law and/or dispositions of the Withdrawal Bill is another question yet to be analysed later, once the final text has become law and is known to us.
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