The end of the Commission`s direct proceedings before the Court of Justice for alleged breach of the Withdrawal Agreement by the United Kingdom after the expiry of the transitional period could indicate why the institution has just initiated infringement procedures. This, in turn, could help to understand why the Commission asserted the substantive reprimand for the breach of the duty of good faith. As stated in previous articles in the area of the Bingham Centre`s comments, after 31 December 2020, the Commission could only initiate dispute settlement procedures against the United Kingdom for breach of the main text of the Withdrawal Agreement, including the obligation of good faith under Article 5 of the VA and the obligation to confer national effect on the Treaty under Article 4 av. This general dispute settlement procedure is based first of all on the « cooperation and consultations » between the United Kingdom and the EU in the Joint Committee established by the cocoon for at least three months before a request for the establishment of an arbitration panel can be submitted by written notification in accordance with Article 169 AV. This clause is a legal means of ensuring that the transitional period, immediately after withdrawal, maintains a « sham » of the supranational constitutional order concerning the United Kingdom. The permanent jurisdiction of the Court of Justice of the European Union is confirmed in Article 131, 131 AV. This replica of the EU legal order also works reflexively with regard to the Withdrawal Agreement: Article 131 concludes that « this competence of the ECJ, as defined by paragraph 1 of the ECJ, also applies to the interpretation and application of this agreement during the transitional period » (emphasis ed here only). The EU « today sent the UK a letter of formal notice for non-compliance with its obligations under the Withdrawal Agreement. This marks the beginning of a formal infringement procedure against the UK, » von der Leyen said in a brief statement.
However, nuances may result from the discrepancy between the wording of the positive commitment and the negative commitment in Article 5 AV. While the first clause concerns the « commitments » of the agreement, the objective of the second sentence is its « objectives ». This linguistic distinction could be distinguished. While the parties must take measures to ensure the fulfilment of the obligations which therefore relate to any clause of the main text and the protocol, the obligation for the parties to refrain from any action could relate only to measures likely to undermine the objective of the agreement. An explicit definition of the « objective » of the Agreement is defined in Art. 1 AV: « the terms of the United Kingdom`s exit. of the European Union. and of. (Euratom) ». The Legal Council of EU member states said they would have an additional four years to sue the UK for any alleged breach of the Withdrawal Agreement in 2020. The ECJ retains powers over the UK during the transition period, including the interpretation and implementation of the Withdrawal Agreement. European Commission President Ursula von der Leyen announced on Wednesday that the EU had taken legal action against the UK after it failed to withdraw laws that would repeal elements of the withdrawal agreement and violate international law.
The notification letter marks the EU`s formal administrative response to the UK Single Market Act 2019-21, proposed by the UK Government on 9 September 2020. This step marks a shift from the hypothetical phase of academic, civil society and political assertions that Clauses 44, 45 and 47 may constitute a series of actual and potential breaches of the UK`s obligations under the main text of the Withdrawal Agreement (VA) and the Protocol on Ireland/Northern Ireland (PNIP) to the actual decision of these claims before the competent judicial authorities. . . .