Top Law Firm Including Former Senior EU Lawyer Says Backstop is Illegal Under EU Law

It’s not just the legality of the backstop under UK law and the Good Friday Agreement that is being challenged, now a leading legal firm has said that the backstop is also illegal under EU law.

HerbertSmithFreehills state in their latest ‘View From Brussels’ briefing that:

“on the basis of the EU’s own view of what is legally allowed under Article 50 and on the basis of which the negotiations proceeded, the backstop in its present form is illegal as a matter of EU law. The Attorney-General of the UK came to a similar conclusion in paragraph 17 of his advice to the government of 13 November 2018. It could also be argued that the backstop is inconsistent with the aim of the Treaty on the European Union to promote peace (expressed in its Article 3) since it is inconsistent with the institutional provisions of the Belfast/Good Friday Agreement and therefore undermines it.”

There is also a formalised legal procedure in the EU for ensuring the legality of an envisaged international agreement set out under Article 218(11) of the TFEU, which could force the ECJ to give a ruling before 29th March. The backstop is only being kept alive by bluster from the EU – and the acquiescence of the UK…

h/t Henry Newman

UPDATE: One of the two co-authors of the briefing note, Eric White, was the head of the Trade and WTO Group of the European Commission’s Legal Service until two years ago. If even he thinks it’s illegal…


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