The European Commission Initiates Legal Proceedings Against the U.K. Over Its Trade Policy in Ireland

The European Union and the United Kingdom have engaged in seemingly interminable legal negotiations since 2016, when U.K. voters approved a motion to depart from the confederation in a “Brexit” referendum. Almost five years and three Prime Ministers later, the U.K. has yet to work out some of the details. Recently, the island of Ireland has become a cauldron of resentment between the two parties. Northern Ireland, which is part of the U.K., shares a long and unfortified border with the Republic of Ireland, an arrangement that both countries desire to maintain. Ensuring that a physical barrier would not separate the two countries required a provision of the Brexit agreement called the Northern Ireland Protocol. This Brexit fixture has been controversial among Unionist parties within Northern Ireland and its implementation would have dire consequences for trade between N.I. and the rest of the U.K. When Prime Minister Boris Johnson unilaterally postponed implementation of the Protocol in March, however, he sparked a legal conflict with the E.U. that has resulted in the confederation launching an “infringement procedure” against the U.K. on March 15, 2021.

The Northern Ireland Protocol was a necessary step to keep the border between Ireland’s two countries open after the U.K.’s departure from the E.U. The Protocol allows Northern Ireland to remain in the E.U. single market for goods, allowing goods to move freely between N.I. and the Republic of Ireland without inspection. If the two countries did not share the same market, border checkpoints would be required to inspect goods flowing between them; adherence to the regulations of each country would necessitate a hardened barrier to ensure no unchecked goods could move between them. The agreement had a price, however—as a result, goods arriving at N.I. ports from the rest of the U.K. will require examination by E.U. regulators to ensure they are up to standard, complicating trade between Great Britain and Northern Ireland even though they belong to the same country. The E.U. enforces strict rules at its checkpoints, where officials inspect produce such as meat, milk, fish and eggs to ensure they meet the high standards laid out. The consequences of this arrangement have already proven difficult for food suppliers in Northern Ireland. Some supermarkets have had difficulty maintaining stocks since the arrangement began on January 1, and there are concerns of further food shortages once the Brexit trade deal begins in full force. Hoping to avoid such a fate for Northern Ireland, Prime Minister Johnson extended a grace period for full implementation of the Protocol to October 1, which was previously expected to begin at the end of March, drawing the ire of E.U. officials and the Republic of Ireland. 

In response to the U.K.’s extension of the Protocol’s grace period without their permission, E.U. officials have spoken out against Britain’s unilateral action and have initiated legal proceedings against the country that may result in a ruling from the European Court of Justice. Maros Sefcovic, the Vice President of the European Commission, has condemned Britain for setting itself “on a path of a deliberate breach of its international law obligations and the duty of good faith.” As such, the European Commission has filed a formal infringement procedure against the U.K., which remains subject to the jurisdiction of the European Court of Justice under the Brexit agreement. U.K. officials have countered that extending the grace period was “lawful and part of a progressive and good faith implementation of the Northern Ireland Protocol” and have suggested that the E.U.’s legal filing was an overreaction to such a “low-key operational measure.” 

The European Commission’s Infringement procedure is designed to end in compromise and a good faith agreement rather than a final verdict from the Court of Justice; however, taking the case all the way through can have significant financial consequences for the country in question. The European Commission has initiated the procedure by sending Britain a formal notice for breaching the Northern Ireland Protocol. The U.K. has one month to respond to the accusation that they have violated the Protocol and the “good faith obligation” under that deal and either explain or remedy their actions. If the U.K.’s explanation does not satisfy the European Commission, the Commission will send the U.K. a formal request to comply with E.U. law and its own explanation of how the country is violating existing law. It is only if the U.K. does not comply with European law after this second step that the Commission may choose to bring the matter to the European Court of Justice. 

At this time, both sides seem certain that they can avoid the courts through compromise, and it is in the interest of each to do so. The U.K. might face financial penalties to the EU if they do not comply with the case. Furthermore, the E.U. intends to activate the dispute resolution mechanism of the Brexit treaty, which would set up an arbitration panel to determine whether the U.K. has violated the terms of the treaty. If the panel finds the U.K. guilty, the E.U. could suspend parts of the Brexit deal and the trade deal signed last December, possibly culminating in the E.U. imposing tariffs on the U.K.

The legal dispute over Northern Ireland was not the first incidence of a flare-up between the U.K. and Europe since the Brexit process began. Only last year, when Johnson indicated that he would override sections of the Northern Ireland Protocol, the European Commission threatened similar legal actions against the U.K., only for the country to relent. However, the food shortages threatening Northern Ireland and the Protocol’s profound unpopularity in the region may complicate diplomatic solutions. This incident marks yet another headache in the U.K’s plan to become independent of the E.U., a measure that provides them more legal autonomy, but one that also has increased friction with its neighbors.

Jacob Rosenzweig is from New York, New York studying History and Classics.


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