European Commission President Ursula von der Leyen announced on Wednesday that the EU had taken legal action against the UK, which has not withdrawn legislation that nullifies elements of the withdrawal agreement and violates international law. The EU has taken legal action against the UK after Boris Johnson failed to respond to Brussels` request to abandon laws that would replace the withdrawal agreement and violate international law. Therefore, a textual argument can be made that the parties should only take those that would jeopardize the UK`s withdrawal from the Eu, in accordance with Article 50, paragraph 2, of the TUE. The argument that the power of British ministers to establish an internal law incompatible with certain provisions of the withdrawal agreement and the resulting non-application of the direct effect on that treaty does not prevent the TFUE and the TFUE from “no longer applying to the State”. Therefore, the argument would conclude that, in such a scenario, the negative obligation of Article 5, the second sentence, would not be violated. The assertion that the UK`s internal market law violates this good faith clause of the withdrawal agreement has been clarified in political, academic and civil society debates in the United Kingdom. The Bingham Centre for the Rule of Law stated: “By introducing legislation in Parliament that would authorize the deliberate violation of the VA, the United Kingdom would likely violate its negative obligation to Article 5 to refrain from taking action that jeopardizes the achievement of the objectives of the agreement.” Brussels has compared Downing Street`s trick to negotiations with a “gun on the table.” The Commission`s letter marks the beginning of a lengthy trial that could be submitted to the European Court of Justice. The EU Court of Justice in Luxembourg could impose hefty fines every day if offences are prosecuted. After the referendum on 23 June 2016, some thought that the day (of the exit) would never come.
However, the EU treaties are no longer applicable to the UK on 31 January 2020 and since then both sides have been involved in a legal and political psychodrama of Brexit. The latest twist in the conspiracy came on 1 October 2020, when the European Commission announced the opening of infringement proceedings against the UK for alleged breach of the EU-UK withdrawal agreement. On the face of it, it appears that the European Commission has acted quite preemptively in the opening of infringement proceedings.