EU starts legal action vs. UK for violating Northern Ireland Protocol

Last week, the UK unilaterally extended a number of temporary grace periods agreed by the UK and EU in December that had exempted for several months a wide range of goods arriving in Northern Ireland from Great Britain from the EU customs procedures that applied as of January 1 after the UK’s post-exit transition period ended and it was no longer in the EU’s single market and customs union. Regarding the UK’s unilateral action as a violation of the Protocol on Ireland/Northern Ireland contained in the 2019 EU-UK Withdrawal Agreement, the EU announced it would take legal action and on Monday agreed to begin an infringement proceeding against the UK.

The 135-page Protocol sets out the arrangements the EU and UK agreed are necessary after the UK’s exit in order to address the unique circumstances on the island of Ireland—specifically, those needed to maintain the necessary conditions for continued North-South cooperation, avoid a hard border between the Republic and Northern Ireland, and protect the 1998 Good Friday/Belfast Agreement in all its dimensions. Those arrangements include Northern Ireland remaining in the EU’s single market for goods and adhering to the rules and regulations of the single market and applying the EU’s customs code and its border checks, declarations, certificates, and other procedures to goods arriving in Northern Ireland from Great Britain. In effect, the Protocol created a border in the Irish Sea for trade between Great Britain and Northern Ireland to replace the land border between Ireland and Northern Ireland.

The Withdrawal Agreement provided for a transition period after the UK left the EU on January 31, 2020 until midnight on December 31, 2020, during which it remained in the EU’s single market and customs union. On December 24, the EU and UK concluded the Trade and Cooperation Agreement that was provisionally applied, pending approval by the European Parliament, as of January 1, 2021. But given the termination of the transition period, as of that date the UK was no longer a member of the EU’s single market and customs union, meaning that, in accordance with the provisions of the Protocol, all goods and products arriving in Northern Ireland from Great Britain would be subject to the EU’s customs code and procedures.

In anticipation of that moment, in December European Commission Vice President Maroš Šefčovič and Chancellor of the Duchy of Lancaster and Cabinet Office Minister Michael Gove, the co-chairs of the EU-UK Joint Committee that oversees implementation of the Withdrawal Agreement, announced a series of arrangements that would temporarily exempt animals, plants, chilled meats and other agri-food products, medicines, parcels and other goods arriving from Great Britain and destined for consumption in Northern Ireland from the EU border checks and customs procedures that would otherwise have applied after the transition period ended at midnight on December 31, 2020. Colloquially known as grace periods, the exemptions varied in length but most were for three months and thus would expire as of April 1, 2021.  

Two decisions announced on January 29 set the stage for the dispute that unfolded last week. One involved the EU’s use of Article 16 of the Protocol, the “safeguards” provision, to block shipments of the Covid vaccine from the EU to the UK. Facing significant delays in AstraZeneca’s production and delivery of its Covid vaccine to EU member states and a serious lag in vaccinations, the EU announced that, in accordance with Article 16, which allows either party to take action unilaterally should the application of the Protocol give rise to “serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade,” it would introduce export controls to prevent the shipment of vaccines from the EU to the UK, notwithstanding the fact that the UK had delivery contracts with the vaccine producers.

The other decision announced that day was British Prime Minister Boris Johnson’s appointment of Lord David Frost to serve as his representative for Brexit and international policy. Frost, who had advised him on Europe when he was Foreign Secretary in 2016-18 and, after he became prime minister in July 2019, had served as the UK’s chief negotiator in the last six months of the withdrawal negotiation and then, after the UK’s January 31, 2020 exit, as chief negotiator of its post-Brexit relationship with the EU, would become his representative for Brexit and international policy rather than national security adviser as he had announced last June when he nominated him for a life peerage. Three weeks later, on February 17, Johnson elevated Frost to the cabinet, appointing him Minister of State in the Cabinet Office. With that appointment, he took over Gove’s responsibilities as co-chair of the EU-UK Joint Committee and co-chair of the EU-UK Partnership Council, responsible for overseeing the implementation of the TCA. He assumed the new positions on March 1.

Needless to say, all of the parties in Northern Ireland immediately objected to the EU’s use of Article 16 of the Protocol to block exports of the Covid vaccine to the UK, as did the Irish and British governments. Northern Ireland’s First Minister Arlene Foster called it “an absolutely incredible act of hostility.” Simon Coveney, the Irish foreign minister tweeted, “The Protocol is not something to be tampered with lightly, it’s an essential, hard-won compromise, protecting peace and trade for many.” Johnson’s spokesperson said, “The UK has legally-binding agreements with vaccine suppliers and it would not expect the EU, as a friend and ally, to do anything to disrupt the fulfilment of these contracts” and reiterated “the importance of preserving the benefits of the Belfast/Good Friday agreement.” Johnson spoke with Ireland’s Taoiseach Micheál Martin, who spoke with Commission President Ursula von der Leyen and conveyed the need to create an export authorization mechanism for the vaccines that would not make use of the Protocol to block deliveries to the UK. Later that evening, the Commission issued a statement saying it would not use Article 16 to block shipments of the vaccine to the UK.

Several days later, on February 2, Gove wrote Šefčovič, his co-chair of the Joint Committee, and in a long letter conveyed the shock, anger and disappointment in Northern Ireland and the UK as a whole that the Commission was ready to impose customs processes on goods crossing the border between Ireland and Northern Ireland immediately and without advanced notification and due process, and was willing to use Article 16 of the Protocol to do so. He said there was an urgent need to restore confidence in and protect the Good Friday Agreement and to take steps to assure that the Protocol affected everyday life in Northern Ireland as little as possible. Toward that end, he proposed that the grace periods agreed by the Joint Committee in December that exempted specific goods shipped from Great Britain to Northern Ireland from the EU customs procedures and checks for several months be extended. Specifically, he proposed that the grace periods for supermarkets and their suppliers and for parcels, including mail, scheduled to end on April 1 be extended to 2023; that the arrangements on the movement of medicines agreed in December be extended to 2023; that measures be taken to ensure the continued tariff- and quota-free movement of steel into Northern Ireland; that a bilateral arrangement be made to address the barriers that exist in regard to the movement of pets between Great Britain, Northern Ireland and Ireland; and that the unique circumstances in Northern Ireland and Ireland that apply to the movement of plant products be addressed.

On February 3, Gove and Šefčovič met virtually with Foster and Deputy First Minister of Northern Ireland Michelle O’Neill and reiterated their full commitment to the Good Friday Agreement and to the proper implementation of the Protocol, and Gove and Šefčovič agreed the EU and UK “would immediately work intensively to find solutions to outstanding issues, to be addressed through the Joint Committee.” On February 11, Gove and Šefčovič met again and reiterated their full commitment to the Good Friday Agreement and the proper implementation of the Protocol, agreed they would spare no effort to implement what had been agreed at their December meeting, and would intensify the work of the Specialized Committee on the Protocol to address the outstanding issues. They met again on February 24 and again reiterated their full commitment to the Good Friday Agreement and the proper implementation of the Protocol, said they would continue to engage with business groups and other stakeholders in Northern Ireland, and would work to give effect to the solutions agreed in December. Gove noted the UK would provide a new operational plan with respect to supermarkets and their suppliers and additional investment in digital technology for traders. But notwithstanding the EU’s repeated expression of its commitment to address the UK’s concerns, none of the grace periods were extended.

On March 1, Frost assumed his new position as minister and co-chair of both the Joint Committee on the Withdrawal Agreement and the TCA Partnership Council. Two days later, Brandon Lewis, the Secretary of State for Northern Ireland, issued a ministerial statement that said the three-month grace period scheduled to end on April 1, during which agri-food moving from Great Britain to Northern Ireland was exempt from the EU’s Export Health Certificates, would be extended for six months until October 1 and that certification requirements would then be introduced in phases alongside the roll-out of a digital assistance scheme. Describing it “as part of the pragmatic and proportionate implementation of the Northern Ireland Protocol,” he said the government was taking “several temporary operational steps to avoid disruptive cliff edges as engagement with the EU continues through the Joint Committee.”

Following the announcement, Šefčovič issued a statement in which he expressed the EU’s “strong concerns over the UK’s unilateral action, as this amounts to a violation of the relevant substantive provisions of the Protocol on Ireland/Northern Ireland and the good faith obligation under the Withdrawal Agreement.” And, referring to provisions in the UK’s draft of its Internal Market Bill last year that would have violated provisions in the Withdrawal Agreement, he said, “This is the second time that the UK government is set to breach international law.” Continuing,  he said, “This also constitutes a clear departure from the constructive approach that has prevailed up until now, thereby undermining both the work of the Joint Committee and the mutual trust necessary for solution-oriented cooperation. It is equally disappointing that the UK government has resorted to such unilateral action without informing the EU’s co-chair of the Joint Committee. Issues relating to the Protocol should be dealt with through the structures provided for by the Withdrawal Agreement.” He also noted that at the last EU-UK Joint Committee meeting a week earlier, the UK had “reiterated its commitment to the proper implementation of the Protocol, as well as the implementation without delay of all decisions taken in the Joint Committee in December 2020.” In concluding, he said he would call Frost later that day and inform him that the Commission “will respond to these developments in accordance with the legal means established by the Withdrawal Agreement and the Trade and Cooperation Agreement.”

After that phone call, Frost tweeted, “I spoke to @MarosSefcovic this evening about the limited and temporary operational measures we have announced today for Northern Ireland.” But it  didn’t help smooth the ruffled feathers that the next day the UK extended another of the grace periods agreed in December. This one, for parcels for business-to-business deliveries, which had been exempted until April 1 from the EU’s required customs declarations, was extended for six months to October 1. In a subsequent interview, Šefčovič said the UK decisions had been a “very negative surprise” that had undermined the work done by EU and UK officials to resolve problems faced by companies trading across the Irish Sea. The EU, he said, was working on preparing an infringement proceeding against the UK for violating the Withdrawal Agreement: “We are currently preparing it and it would be really something coming to our table very soon. The most precise term I can give you is really very soon.” 

Reacting to the dispute, last Thursday the European Parliament, which had planned to set the date for its vote on the TCA that day, decided not to do so. The EU and UK had agreed the TCA would apply provisionally as of January 1, 2021, pending approval by the Parliament, and the provisional application would end on February 28, 2021 unless another date were to be agreed by the EU-UK Partnership Council. On February 10, the Commission, which was encountering difficulties in translating the 1246-page TCA into identical text in its 24 official languages so the Parliament could proceed with its review, proposed that the Council extend the provisional application to April 30, 2021. On February 23, the UK, albeit with some complaining, agreed to the extension. The Parliament will presumably schedule its vote on the TCA and approve it at some point prior to April 30. But the UK’s decisions last week won it no friends in the EU and the Parliament’s decision to delay setting a date for the vote was an easy way for it to send a clear message to Downing St.: “Don’t expect us to approve the TCA if you violate the terms of the Withdrawal Agreement.” David McAllister, the Parliament’s lead spokesman on UK relations, said the UK’s decisions were “unnecessary and untimely. The EU side has offered to discuss the flexibilities allowed by the protocol framework, but the UK government has again chosen the slippery slope of acting outside the framework of the protocol…These developments are unhelpful, to say the least.” Coveney, Ireland’s foreign minister, put it more bluntly: “The EU are negotiating with a partner they simply can’t trust.”

In an oped in Sunday’s Telegraph, Frost said,  “Unfortunately, the action taken by the EU in late January on their vaccines regulation, and the improper invocation of Article 16, has significantly undermined cross-community confidence in the Protocol. As the government of the whole of our country we have to deal with that situation—one that remains fragile. That is why we have had to take some temporary operational steps to minimise disruption in NI. They are lawful and are consistent with a progressive and good faith implementation of the Protocol. They are about protecting the everyday lives of people in Northern Ireland, making sure they can receive parcels and buy the usual groceries from the supermarket.” Continuing, he said, “With Boris Johnson as Prime Minister, our agenda is one of an outward-looking country, confident we can work with others towards common goals. That is our hope for our ties with our European friends and allies too. I hope they will shake off any remaining ill will towards us for leaving, and instead build a friendly relationship, between sovereign equals. That is what I will be working towards, acting constructively when we can, standing up for our interests when we must—as a sovereign country in full control of our own destiny.” Alluding to the EU’s threat of an infringement procedure, he said, ”Without this threat of disruption, we can continue our discussions with the EU to resolve difficulties arising from the Protocol constructively—and we aim to do so.”

Nevertheless, on Tuesday, after hearing from Šefčovič, the EU’s General Affairs Council, consisting of the member states’ ambassadors to the EU, agreed to launch a formal infringement proceeding against the UK, the first step of which will involve issuance of a letter of formal notice to the UK of its violation of the Withdrawal Agreement that includes a request for a response within a specific period of time, such as a month or two. After receiving the response, the EU may, depending on what the UK says in its response, issue a “reasoned opinion” requesting remedial action within a specified period of time, after which, again depending on the UK’s response, it could take the UK to the European Court of Justice. Šefčovič reportedly also proposed that the EU issue a second letter to the UK, warning that its actions were a breach of Article 167 of the Withdrawal Agreement that obliges the parties to consult and act in good faith in implementing it. That could trigger the agreement’s dispute resolution mechanism that would allow the EU, after discussing the issue with the UK for up to three months, to request a five-person arbitration panel to intervene and issue a ruling in six to 12 months, after which, if the UK failed to comply with the ruling, the EU could suspend parts of any other agreement it has with the UK, including the TCA.

Given that the dispute began when the EU attempted to use Article 16 of the Protocol to block the export of Covid vaccines produced in the EU to the UK, it was perhaps inevitable that, following the EU’s decision to begin the infringement procedure, there would be some defensive finger-pointing over why it had sought to block the export of vaccines to the UK in the first place. In his weekly briefing note, Charles Michel, the president of the European Council, said he was shocked the EU had been accused of “vaccine nationalism,” that it has “never stopped exporting vaccines,” that “the UK and U.S. have imposed an outright ban on the export of vaccines or vaccine components produced on their territory,” and the EU “has simply put in place a system for controlling the export of doses produced in the EU.” British Foreign Minister Dominic Raab told him his assertions about a UK ban on the export of the vaccine or vaccine components were “completely false” and he expressed the UK’s concern that the “false claim has been repeated at various levels within the EU and the Commission.” But Michel was not about to concede the point; he tweeted in response: “Glad if the UK reaction leads to more transparency & increased exports, to EU and third countries. Different ways of imposing bans or restrictions on vaccines/medicines. EU is providing vaccines for its citizens and rest of the world.”

Clearly, both sides need to step back, take a deep breath, and then do what they should be doing—in the case of the UK, working with the EU to ease the flow of goods from Great Britain to Northern Ireland while adhering to the terms of the Protocol; in the case of the EU, dropping the infringement proceeding and focusing instead on its most important challenges—assisting the recovery of its Covid-stricken economy and ramping up distribution to its citizens of the Covid vaccine, in which it lags far behind the rates achieved thus far in the UK and U.S.  

David R. Cameron is a professor of political science and the director of the MacMillan Center’s Program in European Union Studies.