Brexit Bulletin—EU considering next steps as UK declines to respond to Withdrawal Agreement breach notice

Brexit Bulletin—EU considering next steps as UK declines to respond to Withdrawal Agreement breach notice

The European Commission is said to be considering next steps having received no reply from the UK to its letter of formal notice for breach of the Withdrawal Agreement. The Commission sent the letter of formal notice to the UK on 1 October 2020, after the UK government failed to address the EU’s concerns over the United Kingdom Internal Market Bill, which continues to progress through Parliament. The UK was given a month to submit its observations in response to the letter of formal notice. The Commission has since reported that no response was received in that timeframe. Laura Rees-Evans, senior associate at Fietta LLP, comments on the latest development.

What’s next?

The Commission’s statement on the notice sets out the next steps as follows: ‘The UK has until the end of this month to submit its observations to the letter of formal notice. After examining these observations, or if no observations have been submitted, the Commission may, if appropriate, decide to issue a Reasoned Opinion.’

Rees-Evans comments on the next steps, noting that this is not the only infringement action pending against the UK:

‘The “reasoned opinion” is the next step in any “infringement proceeding”, issued if the Commission concludes that a Member State (or, in this case, the UK) has failed to fulfil its obligations under EU law. In essence, it is a formal request to comply with those obligations.

The Commission issued a reasoned opinion to the UK just last week, in another infringement proceeding commenced since the UK’s departure from the EU—that relating to the absence of action by the UK to terminate its intra-EU bilateral investment treaties. In that case, the Commission has threatened legal action before the Court of Justice of the European Union (CJEU) if the UK does not take action within the next two months.

The infringement proceeding regarding the UK Internal Market Bill is, however, distinct and unique among the (many) pending proceedings the Commission has commenced against the UK since the UK’s departure from the EU, in that it concerns exclusively the UK’s alleged “non-compliance with obligations under the Withdrawal Agreement”, specifically Article 5. That implicates the dispute resolution provisions of the Withdrawal Agreement, as I discuss in further detail in a Future of Law blog post (here).’

For background reading and analysis on the dispute, and what this means in practice, see: Brexit Bulletin—EU sends formal notice to UK for Withdrawal Agreement breach, LNB News 01/10/2020 121. For further reading on the reasoned opinion on intra-EU bilateral investment treaties, see: European Commission issues reasoned opinion to UK for failure to terminate intra-EU BITs.

Meanwhile, negotiations on key transition workstreams continue, including intensified talks on the future UK-EU relationship and implementation of the Withdrawal Agreement. The UK Internal Market Bill continues line-by-line examination in a Committee of the House of Lords. Earlier in its passage in the Lords, a majority of Peers approved a motion of regret at the Second Reading of the Bill, stating ‘that this House regrets that Part 5 of the Bill contains provisions which, if enacted, would undermine the rule of law and damage the reputation of the United Kingdom’. See: Brexit Bulletin—Lords approve regret motion at Second Reading of UK Internal Market Bill, LNB News 20/10/2020 91.

For Bill Tracker updates on the UK Internal Market Bill, see: LNB News 10/09/2020 3.

Source: Withdrawal Agreement: European Commission sends letter of formal notice to the United Kingdom for breach of its obligations

For further detail, see: LNB News 03/11/2020 98.


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About the author:
Holly joined LexisNexis in July 2014 and works primarily on the PSL Public Law module. Holly read law at university and qualified as a solicitor in private practice. Before starting her legal career, she gained experience working in local government and spent a year studying politics. Prior to joining LexisNexis, Holly worked in the Global Technology and Sourcing team at BP, supporting a variety of global procurement and compliance projects. Upon joining LexisPSL, she worked in the Commercial and LexisAsk teams before assisting with the development and launch of the PSL Public Law module. Holly looks after a number of core public law subject areas, including Brexit.