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Brussels triggers legal action in reaction to UK Northern Ireland legislation

The European Commission is to re-activate its paused legal action against the United Kingdom. It simultaneously launched a second dispute settlement case – and it released new negotiation proposals to reduce paperwork at the intra-UK customs paperwork. 

The decision to litigate, announced on Wednesday (15 June) by commission vice-president Maroŝ Šefčovič, is in response to the UK’s announcement on Monday  that it was taking steps to unilaterally disapply parts of the Northern Ireland protocol.

At the same time, the commission has further fleshed out how some of its proposals for adapting the protocol, to ease some of the bureaucracy surrounding the movement of goods between Great Britain and Northern Ireland, could work in practice.

These proposals were first put forward by Šefčovič last October, and have apparently been resuscitated by the commission now to underline its claim that it remains committed to negotiating in good faith with the UK on ways to streamline the protocol’s provisions.

In committing to reinforced legal action, the commission has also sent a message that it has not yet reached the stage of seeking trade sanctions against the UK, as had been feared in some quarters.

‘Let’s call a spade a spade – UK action is illegal’

Šefčovič was unequivocal in his condemnation of the UK’s plan to take unilateral action on the protocol – which, for the moment, remains only a draft legislative proposal.

“Let’s call a spade a spade: this is illegal,” he told a press conference on Wednesday.

“Let there be no doubt: there is no legal, nor political justification whatsoever for unilaterally changing an international agreement,” Šefčovič added.

“This UK bill is extremely damaging to mutual trust and respect between the EU and the UK. It has created deep uncertainty and casts a shadow over our overall cooperation. All at a time when respect for international agreements has never been more important.”

The commission first initiated legal action against Britain in March 2021, after it unilaterally extended the ‘grace periods’ which were granted in late 2020 to give the country time to comply with its commitments under the protocol. The government recently extended these grace periods indefinitely.

That legal action was put on pause in October 2021 in an attempt to facilitate a negotiated settlement. But the commission has clearly calculated that this initiative has not worked.

New legal action against UK over Northern Irish port checks

Yet at the same time Šefčovič said the commission would now initiate two fresh legal actions against the UK.

The UK stands accused of:

  • failing to carry out the necessary controls at border control posts in Northern Ireland, by ensuring adequate staffing and infrastructure
  • failing to provide the EU with essential trade statistics data to enable the EU to protect the single market.

All of these cases could end up being head by the European Court of Justice, which under the EU-UK Withdrawal Agreement has the power to impose hefty fines on the UK if it loses the cases under review.

‘One 3-page form per lorry’ –Šefčovič’s target for GB-NI trade

In parallel to launching litigation, the commission has produced technical documents outlining how it could streamline the processes under the protocol in the areas of customs and sanitary and phytosanitary checks.

At the heart of the customs paper is a proposal to widen the scope of the proposed ‘trusted trader’ scheme, allowing businesses based in Great Britain to register for this status as well as those in Northern Ireland.

The paper also sets out a ‘super reduced’ set of customs data which traders would need to declare with each movement.  The latter would reduce the requirements from more than 80 key data elements under the current provisions to just 21.

The SPS paper for its part would leave a requirement for just one single simplified certificate, signed by the UK competent authority, for each lorry with a mixed load of retail goods moving into Northern Ireland.

According to Šefčovič, the net result of these changes would mean that only three pages of documentation would be needed for each lorry load of goods being delivered from a British supermarket to one of its stores in Northern Ireland.

EU ‘focused on practical solutions’

The commission vice-president insisted that Brussels was focused on practical and workable solutions. He contrasted the EU proposals with the UK’s plan, published earlier this week, for a dual regulatory regime inside Northern Ireland.

“A dual set of rules – EU and UK – would lead to a mountain of paperwork and bureaucracy, enough to bury a small business in Northern Ireland that wants to profit from access to both the UK’s internal and EU’s Single Market at once,” Šefčovič warned.

“Ask milk producers in Northern Ireland how they can produce two sorts of milk, one for the UK and one for the EU. Let’s focus on practicalities,” he added.

The implementation of these proposed new rules would be dependent on renewed negotiations between the EU and the UK . This is something which has not happened since talks ceased in February, in the run-up to Northern Ireland’s Assembly elections in May.

Šefčovič stressed that “despite today’s legal action, our door remains open to dialogue”.

He added: “We have always said that our package of proposals has never been a take-it-or-leave-it offer. It can evolve. But it is not an unconditional offer. There must be safeguards included that protect the Single Market.”

The ball is now in the UK’s court to respond to the first EU court case on the grace period extensions.

Šefčovič said that if the UK did not reply to the latest action within two months, the EU would refer the case to the Court of Justice.

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