The EU’s Legal Action Against the United Kingdom, by Oliver Schmidtke

by Oliver Schmidtke, director of the Centre for Global Studies, University of Victoria


Addressing the nationalist-populist challenge to the Brexit negotiations 

The EU has opened an infringement procedure against the United Kingdom for violating the Brexit agreement. When the British government under Boris Johnson decided to challenge the Withdrawal Agreement with the European Union by tabling the UK Internal Market Bill in early September, it was a calculated affront of the other member states and bombshell for the ongoing Brexit negotiations. Essentially the Bill would allow the UK to unilaterally modify the mechanisms with which the Withdrawal Agreement commits all parties to keep the border open between the Republic of Ireland and Northern Ireland. The British Prime Minister deliberately chose a political move challenging the legal obligations stipulated in the Agreement with the EU that his own government signed in January.

There is widespread indignation in the international community but also in the United Kingdom over the violation of international law by the Johnson government.  And there is growing frustration in Brussels making it increasingly difficult to build the trust that one would need to move towards a Withdrawal Agreement. In this respect, the Internal Market Bill is likely to undermine the British negotiating position and increase the likelihood of the UK crashing out of the EU at the end of 2020.

The British government downplays its move by characterizing it as introducing a legal safety net to protect the integrity of the UK’s internal market. Yet, Prime Minister Johnson is well aware of the fact that the Bill is in flagrant violation of one of the central elements of the Withdrawal Agreement. Essential, it signals to the European Union: We are no longer committed to acting in good faith with our joint Withdrawal Agreement and we accept risking the failure of our negotiations on a final Brexit deal. In Brussels the British Bill has been characterized as negotiating with a ‘gun on the table’. In my view, this dramatic metaphor accurately describes the strategy that the UK government has decided to embark on.

There are two ways to interpret the UK’s decision to introduce the Internal Market Bill: First, this move can be interpreted as a strategy of strength and determination to ‘get Brexit done’ at all costs. The negotiation between EU and the UK is in a critical stage without much progress over the past weeks and months. In this context, the new Bill is a clear signal to Brussels. The UK’s willingness to compromise is limited; we will guard our national interest even if we violate international agreements and act in bad faith. Either you are willing to accept a Withdrawal Agreement on our terms or there won’t be a Brexit Agreement at the end of the year. Introducing the Bill is meant to project strength and resolve. Based on this attitude London hopes to give a jolt to the ongoing negotiations and tilt them in Britain’s favor.

An alternative interpretation would suggest that the Conservative government is caught up in its own ideologically driven commitment to Brexit without compromise. For Prime Minister Johnson, the completion of the Brexit process has become the overriding raison d’être of his government. He has appointed hardline Brexiteers to his government and marginalized those in his party that seek compromise with the European Union. In a way, the UK Internal Market Bill is another step in facilitating the no-deal scenario in which the UK will leave the European Union without an agreement and at a staggering economic price. From this perspective, London’s attitude is driven more by a hardening nationalist domestic agenda and populist rejection of the EU rather than a well-calibrated negotiation strategy with the rest of Europe.

Brussels is very careful not to escalate the conflict with London by introducing the infringement procedure. The EU has pointed out that it is a formal procedure and not a political act undermining its commitment to moving towards an implementation of the Withdrawal Agreement. And indeed, infringement procedures are a common tool that the Commission uses against its member states. On average these procedures take years.

Still, starting the infringement procedures now has the potential of leading to a legal showdown at the European Court of Justice and, potentially, large fines imposed on the UK for its breaches of existing agreements. In this regard, the European Union has launched an important legal process also sending out strong political signals that the EU is not willing to accept the UK’s move unchallenged. Still, the legal procedure will not lead to resolve the dispute. This tasks falls to the negotiators of the UK and the EU trying to move towards implementing the Withdrawal Agreement.

About the author: Oliver Schmidtke is Director of the Centre for Global Studies (CFGS) and Jean Monnet Chair in European Politics and History at the University of Victoria. Dr. Schmidtke, a former director of European Studies and president of the European Community Studies Association in Canada (ECSA-C), holds appointments in the departments of Political Science and History. Currently his research focuses on issues of democracy, populism, memory politics, the labour market inclusion of highly skilled immigrants as well as processes of political advocacy of migrant and minority groups.