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EU Brexit infringement case: What is it and should the UK be worried?

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The entrance to the European Court of Justice in Luxembourg.
The entrance to the European Court of Justice in Luxembourg.   -   Copyright  AP Photo/Geert Vanden Wijngaert
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The European Commission initiated legal proceedings against the UK on Thursday over a contentious Brexit bill but with fewer than 100 days to go until the end of a transition period, it is doubtful it will yield many results.

One expert told Euronews that in the event the infringement proceedings run their full course and the UK is found to be at fault by an EU court, there is not much the bloc can do if London decides to go rogue.

Euronews breaks down what it all means

What is an infringement procedure?

The European Commission can initiate legal action against any member state it believes is not properly implementing EU law — these are called infringement proceedings.

There are several steps to such a procedure.

First, the Commission sends a letter of formal notice to the member state concerned and sets out a time frame for a response.

If Brussels deems the reply to be unsatisfactory and that the country is indeed failing to fulfil its obligation under EU law, it then sends a reasoned opinion — a formal request to comply with the bloc's law — and once again sets a deadline for a response.

If the member state still does not comply, the Commission can then decide to refer the matter to the Court of Justice of the European Union (CJEU).

Most cases are settled before they are referred to the court.

If the CJEU rules against the member state, the latter must then take the necessary steps to comply and if it once more fails to do so, the Commission can then request that the court imposes a financial penalty.

How common are they?

Very common — there were 800 pending infringement proceedings on December 1, 2019, up from 692 a year before. The average number of infringement cases per member state was 29.

Spain, Italy and Germany were the most likely to have drawn Brussels' ire with a respective 57, 49 and 47 pending cases against them.

With 33 cases against it, the UK was in 10th position.

What are the EU and UK saying?

Brussels says a UK bill approved by MPs on Tuesday is in breach of Article 5 of the Withdrawal Agreement — a Brexit treaty ratified earlier this year — which calls on both sides to "take all appropriate measures to ensure the fulfilment of the obligations" laid out in the document.

The bloc had repeatedly called on the UK to remove controversial provisions from the Internal Market Bill, which would allow London to override commitments made in the Withdrawal Agreement, in particular over the thorny issue of a hard border in Ireland.

Britain argues, however, that the bill is necessary to "create a legal safety net to protect the integrity of the UK’s internal market" and that the Northern Ireland Protocol in its current form would lead to a de-facto border between the province and the rest of Great Britain.

The UK now has a month to respond to the Commission's letter of formal notice.

Can it amount to much?

The UK officially exited the European Union on January 31 and entered a transition period during which it remained bound by EU law. This transition period comes to an end on December 31, meaning that there are now fewer than 100 days to go until London and Brussels fully part ways.

According to Commission statistics, the average duration of an infringement case is 34.8 months.

However, as Michael Dougan, a professor of European Law at the University of Liverpool, told Euronews: "The Withdrawal Agreement provides that the CJEU will continue to exercise jurisdiction over existing cases through to their completion in accordance with Union law."

"The problem is," he continued, "if the UK is intent on acting like a rogue state, ignoring not just the Withdrawal Agreement but also any CJEU ruling, there is not much the EU can do about it."

"The main recourse would be political and diplomatic, for example, halting any further negotiations or cooperation. Though, of course, the UK’s reputation as a law-abiding international actor would sink even further into the mud."

Negotiations between the EU and the UK have been deadlocked for months. Both sides have said that an agreement must be found in mid-October so that their parliaments have enough time to approve it to enter into effect on January 1, 2021.

Failure to do so would mean reverting to World Trade Organisation rules and the reimposition of tariffs on goods and services and consequently, long delays at borders.

Some have suggested the Internal Market bill is a negotiating ploy by the UK to call the EU's bluff.

Johannes Ungerer, a lecturer in German law and EU law at Oxford University, told Euronews that for the EU the best outcome would be for the contentious bill "to be amended (or not be passed at all)."

"This is mainly a political issue for the UK, who might consider amending or dropping the Bill as an aspect in the ongoing negotiations about the future EU-UK relations. Insofar it is important to keep the surrounding timeframe in mind: An agreement on the future relations is required until the end of October; the Internal Market Bill is unlikely to be passed beforehand. Therefore, for the UK, the best outcome might be to influence the negotiations to its advantage, which might render passing the controversial (parts of the) Bill obsolete," he added.

The US has also warned the UK against moving ahead with its Internal Market Bill, with Congress members from both sides of the aisle underlining that a free trade agreement between the two countries would not be struck.