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Here is a thread on the legal advice the European Commission has circulated to member states following the publication of the Internal Market Bill:
1/ The advice says the UK’s attempt to override elements of the NI Protocol are a “clear breach” of the Withdrawal Agreement and would allow the European Commission to take legal action on several grounds.
2/ The advice says the Withdrawal Agreement was ratified by both the EU and UK and entered into force on 1 February. “Since then, no Party can unilaterally change, clarify, amend, interpret or disapply it anymore."
3/ The draft says the Protocol “forms an integral part of the Withdrawal Agreement... If adopted as proposed, this bill will be in clear breach of substantive provisions of the Protocol…”
4/ While the Bill only gives the UK the option of taking unilateral measures contrary to the Protocol, simply proposing it means the UK is in breach of the Article 5 good faith requirement of the WA "because this bill jeopardises the attainment of the objectives of the Agreement.
5/ The European Commission can take legal action against the UK once the bill is adopted, but also before it is adopted. That legal action would not be ready before the end of the transition, but it can look back retrospectively, the advice says...
6/ “Given the length of the pre-litigation phase, it is unlikely that the case against the UK can be brought to the [European] Court [of Justice] before the end of the year.
7/ “However, infringement procedures for facts occurred before the end of the transition period can be brought to the Court during 4 years after the end of the transition,” the advice states.
8/ If the EU takes such legal action the ECJ could impose a lump sum or penalty payment on the UK, if London does not abide by any ruling on the court, if and when the ECJ establishes a breach of the treaty, the advice says.
9/ The EU could also use the dispute settlement mechanism under the Withdrawal Agreement, “which may ultimately also result in the imposition of financial sanctions by the arbitration panel.”
10/ The document states that if the UK does not comply with an ECJ ruling on the matter, or pay the fine, the EU is entitled to suspend its obligations arising from the Withdrawal Agreement, with the exception of the parts related to EU and UK citizens...
11/ ...or from the future relationship agreement, should one be reached.
