April 12, 2021
Nico Huergo
On March 15th, the European Union sent a letter of formal notice to the United Kingdom over breaches of its Brexit treaty with the EU. Centered upon the Irish border question, the legal action taken by the EU is in response to the UK’s unilateral decision to extend the grace periods on establishing a custom check on goods travelling from Britain to Northern Ireland. The formal notice states that the UK is in violation of international law by taking these measures and that it is the second time in six months that the UK has breached its agreement with the EU (European Commission, 2021). The actions taken by the Commission could lead to Britain being taken to court by the EU although this is certainly not guaranteed (Parker 2021).
The question of Northern Ireland was one of contention in the Brexit negotiations. Maintaining the peace achieved by the Good Friday Agreement was of utmost importance to both sides.[1] The implementation of a hard border in Ireland was impossible as it threatened the peace; however, the UK was leaving the EU and because of that, some goods needed to be inspected before entering the single market. Thus, the Northern Ireland Protocol was developed. Under this protocol, Northern Ireland essentially remains part of the single market and it is governed by EU rules on goods and trade. A new “regulatory” border between Northern Ireland and Great Britain has been implemented which requires goods from the UK travelling to Northern Ireland to undergo a customs check. A 3-month grace period was put in place for supermarkets to adapt to new customs checks and avoid shortages. This grace period was set to expire at the end of March, but the UK unilaterally announced it would extend this period to October, and it announced moves to make the trade of parcels and plants easier as well (Edgington & Morris, 2021).
These unilateral decisions by the UK are at the center of the EU’s complaint against the British government. This formal notice sent to the British government by the Commission is known as an “infringement” case. Per the complaint, the UK has one month to respond, submitting observations for consideration by the Commission. The Commission may then decide to take the matter to the European Court of Justice which can impose penalties or a fine on the UK if it finds that it breached the agreement. The EU can go to the ECJ because, under the Northern Ireland Protocol, the UK is still subject to ruling by the ECJ in regard to legal matters included in the protocol—meaning that the EU can treat Britain like a member state for violating said protocol (Wishart, 2021). This process could be a drawn out one—taking up to 3 years—but it can be sped up and is binding for the British government.
The other step taken by the EU in response to Britain’s unilateral decision is to inform the UK of its intention to use the dispute-resolution mechanism put in place as part of the Brexit deal if Britain refuses to reply to or comply with the infringement case. Under this mechanism, the EU would accuse the UK of “not acting in good faith” and an arbitration panel would be established to determine whether the UK violated its agreement. A ruling affirming a violation of the agreement by this arbitration panel would result in fines being levied against the British government which, if not paid, could result in the EU suspension of certain aspects of the Brexit agreement and the subsequent trade deal signed in December (Wishart, 2021). In other words, a British failure or refusal to pay the fines could result in tariffs being imposed.
The situation is certainly a tricky one. Both sides want to avoid implementing a hard border between Ireland and Northern Ireland. The risk of reigniting the conflict is too great. However, the EU wants to maintain the integrity of the Single Market and avoid having Ireland being a back route for British goods to avoid proper inspections and taxation. Britain, on the other hand, wants to avoid isolating Northern Ireland from the Union and is being pressured by Unionists to find another solution—with one group even formally withdrawing its support for the Good Friday Agreement (Colchester & Norman, 2021). Proceeding with legal action may further strain the relationship between the two which has recently been exacerbated by a row over vaccine exportation and a fight over the diplomatic status of the EU’s ambassador to the UK (WSJ). Each side must tread carefully as this is likely to play out over the next few years, but for now, the divorce drama over Brexit continues as Britain and the EU try to navigate their new relationship.
Further Reading
A united Ireland – Irish unification is becoming likelier | Leaders | The Economist
Reference List
Colchester, M., & Norman, L. (2021, March 17). Vaccine-Export Fight Hastens Decline in EU-U.K. Relations. The Wall Street Journal. https://www.wsj.com/articles/eu-threatens-tightening-vaccine-export-ban-11615985024.
Edgington, T., & Morris, C. (2021, March 15). Brexit: What is the Northern Ireland Protocol and why are there checks? BBC News. https://www.bbc.com/news/explainers-53724381.
The European Commission. (2021, March 15). Withdrawal Agreement: Commission sends letter of formal notice to the United Kingdom for breach of its obligations under the Protocol on Ireland and Northern Ireland. https://ec.europa.eu/commission/presscorner/detail/en/ip_21_1132.
Parker, G. (2021, March 15). EU launches Brexit legal action against UK. Financial Times. https://www.ft.com/content/80670e39-1b23-4714-a945-c3b0e3dd9b2f.
Wishart, I. (2021, March 11). Here’s How EU Could Take Brexit Legal Action Against the U.K. Bloomberg. https://www.bloomberg.com/news/articles/2021-03-11/here-s-how-eu-could-take-brexit-legal-action-against-the-u-k.
[1] The Good Friday Agreement was signed in 1998 as an agreement between the British and Irish governments. It determined how Northern Ireland would be governed and ended a period known as the Troubles which was a 30-year period of conflict in Northern Ireland between Irish Nationalists and Unionists. The agreement created a power-sharing agreement between Nationalists and Unionists. It also opened the border between Ireland and Northern Ireland which has been threatened by Brexit.