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It has not done so and faces national and international criticism, the absence of new international trade agreements 鈥� particularly with the USA and India 鈥� and litigation before the Court of Justice of the European Union (CJEU).

Britain has taken significant unilateral measures in breach of the law, and it has been agreed that it would face consequential penalties, once determined by the CJEU.

In one now precedent case of a breach of EU law by Britain, the quantification of what lump or penalty sum should be paid by it for the breach has now been the subject of an opinion by Advocate General Anthony Collins, delivered on 8 December.

Rule of international law

Article 26 of the Vienna Convention on the Law of Treaties 1969 (headed 鈥�Pacta sunt servanda鈥�) provides that 鈥渆very treaty in force is binding upon the parties to it and must be performed by them in good faith鈥�. Article 27 states that 鈥渁 party may not invoke the provisions of its internal law as justification for its failure to perform a treaty鈥�. Non-compliance with treaty duties is a breach of the rule of international law.

The Treaty on the Functioning of the EU (TFEU) provides for what happens when disrespect for EU-law obligations surface and are held by the CJEU to have been breached by a member state. It identifies the commission as the regulator and the CJEU as the exclusive forum to determine the breach and the 鈥渓ump sum鈥� or a 鈥減ayment penalty鈥� for it, as specified in article 260.

Unfortunately, article 260(1) does not indicate within what period the offender state must comply with the CJEU judgment. In his opinion, Advocate General Collins says: 鈥淪ettled case law is to the effect that the importance of immediate and uniform application of EU law requires the process of compliance to be initiated at once and to be completed as soon as possible鈥� (see paragraph 17).

Importantly, article 259 TFEU provides: 鈥淎 member state which considers that another member state has failed to fulfil an obligation under the treaties may bring the matter before the Court of Justice of the European Union.鈥� So the UK is facing litigation from many sides.

The protocol

In the 2016 referendum, England and Wales voted for (and Scotland and Northern Ireland voted against), the Conservative government鈥檚 Brexit proposal, which was only implemented into domestic law three-and-a-half years later.

However, the UK鈥檚 legal duties under EU law 鈥榬emain鈥� until whenever the terms to which it agreed, and which apply to Northern Ireland, validly expire 鈥渨ithin the next 12 months鈥�, that is, 2024, according to the British Government's press release on 9 February, and after the Assembly has reassembled following elections in NI. Britain鈥檚 duties under international law will always continue.

The Withdrawal Agreement and Northern Ireland Protocol, after the tight referendum result on 26 June 2016, was contracted on 19 October 2019 and then transposed into UK domestic law on 23 January 2020, subject to an agreed transition period to end on 31 December 2020.

Brexit provides that Northern Ireland remains in the EU single market until the protocol expires as planned on 1 January 2025. However, its life can be extended for a further four or eight years 鈥� but only by a majority of the members 鈥減resent and voting鈥� in a Northern Ireland Assembly.

Prof Christopher McCrudden (Queens University Belfast and University of Michigan) addressed concerns to the Irish Centre for European Law conference on 11 November 2022 that the 鈥渢ake-back-control attitude鈥� of the British Government pushes aside respect for, and adherence to, the rule of international law:

鈥淟ast year, yet another attempt to breach the protocol, in the Internal Markets Bill, was only narrowly averted by concerted EU and US pressure. The Retained EU Law Bill will repeal a swathe of previous EU law without replacing it, a significant proportion of which is necessary for the UK to comply with the protocol. The recently enacted Elections Act breaches the protocol in its provisions on the voting rights of EU citizens residing in Northern Ireland. But it is not just that these measures undermine the protocol 鈥� in doing so, they also undermine the Belfast/Good Friday Agreement.鈥�

Apart from Britain鈥檚 indefinite extension of the Brexit transition period, its failure to apply EU laws to protect the integrity of the EU, to respect its harmonised goods standards, and to facilitate the free movement of goods and people within the EU internal market, the most significant illegal unilateral measures are the Northern Ireland Protocol Bill and the Retained EU Law Bill.

In relation to the latter (sometimes also called the 鈥�EU Freedom Bill鈥�), the Law Society Gazette of England and Wales reported on 19 January: 鈥淎s the Retained EU Law Bill enters its final stage in the House of Commons today [18 January 2023], the Law Society said the bill 鈥榳ould rock legal certainty in the UK and undermine the country鈥檚 status as an internationally competitive business environment鈥�.鈥�

Lubna Shuja (president of the Law Society of England and Wales) commented that the speed at which the government proposed to review retained EU law was 鈥渁 recipe for bad law-making鈥�.

This involves some 1,400 pieces of legislation to be scrapped and then possibly reinstated in redrafted forms. The Law Society has urged the government to extend the timeline for reform and remove the deadline of 31 December 2023 for reviewing retained law.

The president added that its clause 7 takes the 鈥渉ighly unusual step鈥� of giving powers to the law officers 鈥� the attorney general, the solicitor general, and the advocate general 鈥� to interfere in civil litigation after a case has concluded, which, she said, was 鈥渃ontrary to the interests of justice and the rule of law鈥�.

Widespread criticism

Also open to widespread criticism, the Northern Ireland Protocol Bill was introduced to the House of Commons on 13 June 2022 and awaits royal consent before enactment. In the meantime, the highest court in the UK has already confirmed the Withdrawal Agreement as binding, legal, enforceable, and not unconstitutional.

The UK must observe it and not breach it (and article 27 of the Vienna Convention) by promulgating the Northern Ireland Protocol Bill as domestic law. The judgment of the UK Supreme Court in Re Allister, delivered on 8 February 2023, has upheld the Northern Ireland Court of Appeal judgment and concluded that 鈥渋t would dismiss all the grounds of appeal and answer in the negative all the questions in relation to which the Court of Appeal gave leave鈥�.

It upheld the Court of Appeal decision of March 2022 that the Brexit laws 鈥減revail over any previous historic UK primary constitutional legislation, especially the Act of Union 1800鈥�.

If it becomes part of UK law, it scraps many of the UK鈥檚 duties under the protocol, which, per its article 16(1) and subject to deeply complex conditions, does actually foresee and provide for the taking of unilateral 鈥榮afeguard measures鈥� by either the UK or the EU.

The protocol, for its uncertain lifetime and by which there is now a customs border between Great Britain and Northern Ireland, is legal, binding, and not in breach of UK constitutional law.

This unilaterally drafted bill may be held by the exclusively competent CJEU to be a breach of the Withdrawal Agreement and, therefore, of international law.

UK parliamentary sovereignty, however, will not pre-empt or limit the jurisdiction of the CJEU under the Withdrawal Agreement to decide upon the legality of such unilateral measures and its power to measure the financial penalties to be borne by the UK for doing so.

Advocate general鈥檚 opinion

Mr Collins, in his opinion (arising from a UK breach of the EU-wide regulation of the use of fuel types for pleasure crafts) states: 鈥淚t is settled case law that infringement proceedings are based on an objective finding that a member state has failed to fulfil its obligations under EU law.

鈥淎 member state may thus not rely on provisions, practices, or situations prevailing in its domestic legal order to justify a failure to observe those obligations. Moreover, the court鈥檚 case law provides no support for the distinction that the United Kingdom seeks to draw between legal and political difficulties, which it recognises cannot justify undue delay in complying with a court judgment, and practical problems or obstacles, which it considers may do so.鈥�

The publicised legal opinion of Advocate General Collins, prepared for the CJEU, explains the laws and regulations on how it should quantify and determine the sum to be paid for a particular breach of EU law by the UK while still an EU member 鈥� and also by it during the transitory phase under the Withdrawal Agreement and pending the expiry of the Northern Ireland Protocol. Much of what is set out below is inspired by Mr Collin鈥檚 written opinion.

In its 2018 judgment in Commission v United Kingdom, the CJEU held that, by allowing the use of marked fuel for the purpose of propelling private pleasure craft, even where that fuel is not subject to any exemption from or reduction in excise duty, the UK had failed to fulfil its obligations under Council Directive 95/60/EC of 27 November 1995 on fiscal marking of gas oils and kerosene.

On 21 December 2020, the commission brought the present action under article 260 TFEU against the UK, seeking a declaration that it had failed to comply with the judgment in Case C503/17 and requesting that the court impose a financial penalty.

Incoming tide of claims

Mr Collins delivered his opinion on what sum the court should impose and how it should be assessed. This opinion will be a guideline for the incoming tide of claims against Britain for its breaches of its Brexit duties and TFEU duty under article 260 鈥渢o take the necessary measures to comply with the judgment of the court鈥�. It is liable, therefore, to pay.

UK secondary legislation made on 28 June 2021 gave effect to the provisions of its Finance Act 2020 and prohibited the use of marked fuel to propel private pleasure craft in Northern Ireland with effect from 1 October 2021.

By letter of 11 February 2022 to the court, the commission indicated that, for that reason, it withdrew the head of claim in the application to impose a daily penalty. It nevertheless maintained the head of claim to impose a lump-sum payment for non-compliance between 17 October 2018 (the date of the judgment in Case C503/17) and 30 September 2021 (the date when the UK first complied).

GDP issue

Mr Collins (at paragraph 3) points out that, at the expiry of the agreed Brexit transition period on 31 December 2020, the UK was obliged to comply with the judgment in Case C503/17 in respect of Northern Ireland only.

In ruling upon this action, in his opinion, the court is thus required to determine whether this mitigates the seriousness of the infringement and/or has the consequence that the gross domestic product (GDP) of Northern Ireland, as distinct from that of the entire UK, is to be used to calculate the lump-sum payment.

Mr Collins (at paragraph 58) opines: 鈥淭he United Kingdom鈥檚 argument that this merits a lower lump-sum payment suffers from a core deficiency that it could be interpreted to mean that an infringement by a 鈥榮mall鈥� member state is inherently less serious than an infringement by a 鈥榣arge鈥� member state.鈥�

In footnote 49, he writes: 鈥淎pplying those (鈥榮mall鈥�) adjectives to the population of the member states, five have a population approximately the same as, or smaller than, Northern Ireland: Estonia, Cyprus, Latvia, Luxembourg and Malta.鈥�

He continues that, therefore, 鈥渢he court鈥檚 case law does not support that proposition.鈥� At paragraph 52 he writes that 鈥渋t should be borne in mind that the court has held that the internal allocation of central and regional powers has no bearing on the application of article 260 TFEU, since the member state concerned is always answerable to the European Union for compliance with its EU-law obligations鈥�. Thus, domestic devolution of national responsibilities is no escape route or excuse.

He further explains (paragraph 72): 鈥淭he objective of imposing a lump-sum payment is to punish past failure to comply and to deter future non-compliance. The United Kingdom did not comply with the judgment by the assessment date, and it is the United Kingdom 鈥� not Northern Ireland 鈥� that is, in principle, responsible for ensuring that that will not recur [protocol, article 12(1)].

It would, therefore, be inappropriate to take into account the GDP of Northern Ireland, instead of that of the entirety of the United Kingdom, with respect to any non-compliance after the expiry of the transition period.鈥�

The advocate general further comments: 鈥淭he United Kingdom鈥檚 contention that the lump-sum payment should be reduced to reflect the reduced scope of the United Kingdom鈥檚 EU-law obligations following its withdrawal from the European Union is illogical. It would be persuasive only if the United Kingdom no longer had any obligations with respect to the European Union, which is not the case ... if anything, the lump-sum payment ought to be increased, rather than decreased, in order to achieve a sufficient deterrent effect.鈥�

The UK, in this first once-off Case C-503/17, where it failed to comply with the CJEU judgment against it, in flagrant breach of article 260 TFEU, agreed to pay 鈥渁 lump sum鈥� 鈥� not a penalty payment.

In the opinion of Mr Collins, taking account of the facts and law as presented by both sides at the CJEU hearing on 28 September 2022, the UK should now be ordered to pay 鈧�17 million. The commission seeks the CJEU鈥檚 order for a lump-sum payment by the UK of 鈧�38,743,056. The UK has offered to pay 鈧�250,000.

The order is expected in the coming months. It will hopefully be effective as a red notice to the UK and to all EU member states of the consequences for any ignored duty to take the necessary measures to fulfil obligations under the treaties, as article 260 expressly requires.

Costs of CJEU litigation

It is a plain term of EU law, as simply presented by Mr Collins, that 鈥渦nder article 138(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party鈥檚 pleadings鈥�.

The UK continues to surf the wave crest of a whirlpool of criticism, unrest, legal complaints, and financial penalties consequent on an ever-rising tide of Brexit breaches.

The advocate general鈥檚 opinion helps all to anticipate how costly each and every proven breach is. The next staged commentary could be about the mechanics of debt collection and enforcement of proven breaches of international law.

Look it up

CASES:

• , European
  • Commission v United Kingdom of Great Britain and Northern Ireland, 17 October 2018

• Case C692/20, European Commission v United Kingdom of Great Britain and Northern Ireland, , 8 December 2022
• [2023] UKSC 5

LEGISLATION:

•  (1998)
•  (UK)
•  (UK)
•  (UK bill)

Read and print a PDF of this article here.

Duncan Grehan is a solicitor and member of the Law Society鈥檚 EU and International Affairs Committee.