Push for powers to fine Britain for EU law infringements after leaving

EU NEGOTIATORS want to be able to impose huge fines on Britain for breaking European laws for years after Brexit, it has emerged.

The European Commission believes the European Court of Justice (ECJ) should have the power to rule on British infringements of EU laws that occurred at any time before the March 2019 withdrawal, and to levy financial penalties.

This attitude is a further hurdle for David Davis, the Brexit Secretary, who returns to Brussels today for his second round of face-to-face negotiations.

According to EU negotiating papers, the European Commission, leading the talks for the EU, wants the ECJ to be able to hear a case if “facts relating” to it occurred at any point before Brexit day. EU officials have put no statute of limitations on potential lawsuits.

Bart Van Vooren, an associate lawyer in the Brussels office of the global law firm Covington and Burling, said: “The way that infringement proceedings are brought is very much under the discretion of the commission … and they are extremely politicised.” Mr Van Vooren said there would be huge fallout in bringing a case after Brexit. “But never say never,” he added.

There are currently 84 infringement proceedings against Britain, at different stages. The average duration of the cases is 36.9 months, according to commission figures.

Ending the supremacy of the ECJ over British law is a red line for the UK government in the negotiations. After Brexit, the UK would no longer have any British judges in the court.

A Government spokesman said: “It would be impossible to predict how long the ECJ would continue to issue judgments in respect of the United Kingdom. That is not in our interests.”

He added that the UK was clear the ECJ could only rule on “pending” cases that were referred to it before Brexit day. But there is no agreed UK-EU definition on when a case is “pending”.

Mr Van Vooren said the EU would compromise on its current stance. “This is a maximalist position,” he said, “When you ask for a salary increase, you don’t begin by asking for just €100 more – you go bigger than that.”

The Government spokesman pointed out that the ECJ had never fined the UK for non-compliance with EU law. The court’s role will come up during today’s talks between David Davis and his opposite number Michel Barnier, as the EU wants the rights of its citizens in the UK after Brexit to be guaranteed by the European court.

Britain insists these rights will be guaranteed under UK law and in the withdrawal agreement, which will be binding under international law and immune from parliamentary tampering.

Mr Davis will tell Mr Barnier that the UK has made good progress since they met a month ago, by introducing the Great Repeal Bill into Parliament, and will make citizens’ rights his personal priority for the talks.

Ahead of the negotiations, he said: “Protecting the rights of all our citizens is the priority for me going into this round and I’m clear that it’s something we must make real progress on.”

Meanwhile, Fabian Picardo, Gibraltar’s chief minister, said he has received “cast-iron assurances” from Mr Davis that the territory will not be excluded from any agreement to secure a better post-brexit trade deal by the EU and Spain; a scenario that Mr Picardo warned would be a “failure” by the UK negotiating team.