What this story told to @JamesCrisp6 *appears* to mean is that the Commission would no longer bring infraction proceedings against the UK in relation to NI (cases where the Commission brings a State before the ECJ where the Commission thinks it has breached EU law).
Article 12(4) of the Protocol means that the U.K. is subject to such proceedings (in relation to the application of customs, goods, VAT and State rules) under the Protocol as if it were a Member State.
Wouldn’t that mean rewriting Article 12(4) (rewriting being ruled out by the EU)?
I suppose not, if the Commission simply agreed that it wouldn’t bring such proceedings. (It has a very wide and generally unreviewable discretion there).
Instead the Commission could use the arbitration mechanism - though since the issue would normally be about the interpretation of EU law, the panel would have to refer it to the ECJ - so all a bit smoke and mirrors.
Meanwhile the U.K. courts would remain bound to follow the ECJ on these matters and in some cases required to refer cases in the domestic courts to the ECJ.
All a bit of a fig leaf, though.
And on my own special subject of Article 10 (State aid) it really makes no difference, as that isn’t generally enforced against Member States by infraction proceedings, but by binding Commission decisions.
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A thread on levelling up: it’s a constitutional issue.
Start with a good summary of the problem with the current government’s approach by @MarvinJRees, Mayor of Bristol. Lack of coordination and games of “scrambles”. (From modernleft.substack.com/p/bristol-mayo…)
Remember that the EU offered the current government a mobility chapter that would have allowed short term work eg by young people without much 💰 keen on ⛷ or 🏝 or improving their languages. But ultra-Brexitist dogma said “no”. independent.co.uk/news/uk/politi…
So young Brits (those without an 🇮🇪 grandparent or other EU citizenship) are denied opportunities open to every other young person west of Belarus.
Denial of reality (the need for a border somewhere given the current government’s choice of Brexit).
(I’d add that that understates the refusal to accept reality because, in truth, a hard land border of ~300 very wiggly miles running through the heart of communities many of whom regard it as illegitimate and most of whom will resent it isn’t actually a realistic option.)
This is a very timely and important contribution to the debate on what, exactly, Article 16 allows the U.K. (or, indeed, the EU) to do. Some key points.
This para makes the point that A16 does not on its face permit derogation from express legal obligations. It makes the point that there are different types of derogation: a complete derogation, or eg a derogation from an obligation matched with compensation for not performing it.
Art 16 is not a renegotiation clause. It is about *temporary* solutions, to last for as little time as possible.
Section 8C of the EU Withdrawal Act 2018 gives Ministers huge powers to legislate “for the purposes of dealing with matters arising out of, or related to, the Protocol (including matters arising by virtue of section 7A and the Protocol)”.
These are Henry VIII powers: they allow Ministers to rewrite any part of the statute book. Including the Withdrawal Act itself. See (2).