European Commission launches infringement proceedings against UK in relation to NI Protocol

The European Commission has launched infringement proceedings against the United Kingdom for not complying with significant parts of the Northern Ireland Protocol.

By Joanne Knox
Wednesday, 15th June 2022, 12:27 pm

Despite repeated calls on the UK Government to implement the Protocol, it has “failed to do so”, which is a “clear breach of international law”, the commission said.

The aim of these infringement proceedings is to restore compliance with the Protocol in a number of key areas where the UK hasn’t been implementing it properly – ultimately with the goal of protecting the health and safety of EU citizens.

At the same time, the commission is today providing additional details on the possible solutions it put forward in October 2021 to facilitate the movement of goods between Great Britain and Northern Ireland.

Maroš Šefcovic, Vice-President of the European Commission in charge of Interinstitutional relations and Foresight, gives a press conference on the Protocol on Ireland and Northern Ireland.

Papers published today explain how the movement of goods between Great Britain and Northern Ireland can be significantly facilitated, and the commission is calling on the UK Government to engage “seriously and constructively” with these.

European Commission Vice-President, Maroš Šefčovič, commented: “Trust is built by adhering to international obligations. Acting unilaterally is not constructive.

“Violating international agreements is not acceptable. The UK is not respecting the Protocol.

“That is why we are launching these infringement proceedings today.

“The EU and the UK must work together to address the practical problems that the Protocol creates in Northern Ireland due to Brexit.

“I am still convinced that with genuine political will to make the Protocol work, we can reach our objectives.

“I call on my UK counterparts to engage in good faith and explore the full potential of the solutions we have put forward.

“Only joint solutions will create the legal certainty that people and businesses in Northern Ireland deserve.”

The commission has decided to take the infringement launched on 15 March 2021 to its second stage by issuing a Reasoned Opinion.

This infringement proceeding was launched as a result of the UK failing to properly implement the Protocol, notably regarding the certification requirements for the movement of agri-food.

It had been put on hold last year in a “spirit of constructive cooperation” to create the space to look for joint solutions with the UK.

However, the commission said the UK’s “unwillingness to engage in meaningful discussion since February – and this week’s unilateral action – goes directly against this spirit”.

If the government does not reply within two months, the commission will consider taking the UK to the Court of Justice of the European Union.

Under Article 12(4) of the Protocol, the Court of Justice has full powers provided for under the Treaties, including the possibility to impose a lump sum or penalty payment.

Secondly, the commission has also decided to launch two new infringement proceedings against the UK for:

- Failing to carry out its obligations under the EU’s sanitary and phytosanitary (SPS) rules. In particular, the UK is not carrying out the necessary controls, and is failing to ensure adequate staffing and infrastructure, at Border Control Posts in Northern Ireland. It has also issued guidance that has the effect of disapplying EU law.

- Failing to provide the EU with certain trade statistics data in respect of Northern Ireland, as required under the Protocol.

This marks the beginning of formal infringement processes, as set out in Article 12(4) of the Protocol, in conjunction with Article 258 of the Treaty on the Functioning of the European Union.

Today’s letters request the UK to take swift remedial actions to restore compliance with the terms of the Protocol. The UK has two months to reply to the letters and the commission stands ready to take further measures.

The commission’s overarching objective remains that of finding joint solutions with the UK within the framework of the Protocol. That is how “legal certainty and predictability can be ensured for people and businesses in Northern Ireland”, it said.

In two position papers, the commission has fleshed out the arrangements it put forward in October 2021 in the area of customs and sanitary and phytosanitary (SPS) rules.

The aim of publishing these texts is to show that solutions can be found within the Protocol.

The commission confirmed it remains ready to explore these solutions with the UK Government.

As outlined in October 2021, the EU is presenting a simplified model for the implementation of the Protocol, in which the flow of goods between Great Britain and Northern Ireland - in respect of goods destined to stay in Northern Ireland - is facilitated to a significant extent.

This facilitation is enabled by a series of safeguards to ensure the goods do not move into the EU’s Single Market.

The commission believes that these suggestions open the way to a resolution of customs and SPS-related implementation issues.

One example is how a truck transporting different food products (e.g. dairy, meat, fish, confectionary, fruit and vegetables, etc.) from Great Britain to Northern Ireland will now just need one certificate stating that all goods of different types, class or description meet the requirements of EU legislation. For example, if a lorry transports 100 different food products, only one certificate will be needed instead of 100 certificates.

Another example is of a business importing products of animal origin (e.g. yoghurt, cheese, chicken or turkey) into Northern Ireland from Great Britain, which will no longer be subject to the same level of checks and controls.

More than 80 per cent of the identity and physical checks previously required will now be removed.

This will significantly ease the process for bringing food supplies from Great Britain to Northern Ireland.

A further example provided by the commission is how certain products that are generally prohibited for import into the EU – e.g. sausages – will now be allowed to be imported into Northern Ireland from Great Britain, subject to them carrying individual certificates, for which specific models will be provided. Conditions and safeguards, such as a rapid reaction mechanism, will help protect the Single Market.

The European Union wishes to have a “positive and stable relationship” with the United Kingdom.

This relationship must be based on the full respect of the legally binding commitments that the two sides have made to one another, based on the implementation of the Withdrawal Agreement and the Trade and Cooperation Agreement. “Both parties negotiated, agreed and ratified these agreements,” the commission added.

“After long and intensive discussions between the EU and the UK, the Protocol is the solution found to reconcile the challenges created by Brexit, and by the type of Brexit chosen by the UK Government.

“The Protocol is an integral part of the Withdrawal Agreement. It avoids a hard border on the island of Ireland, protects the 1998 Good Friday (Belfast) Agreement in all its dimensions, and ensures the integrity of the EU’s Single Market.

“The EU has shown understanding for the practical difficulties of implementing the Protocol, demonstrating that solutions can be found within its framework,” it said.