EU & UK avoid “sausage war,” make progress on some Protocol issues

At the G7 meeting in Cornwall last month, the other leaders sternly advised Prime Minister Boris Johnson not to violate the Protocol on Ireland/Northern Ireland contained in the 2019 EU-UK Withdrawal Agreement by unilaterally extending a temporary exemption from EU rules for chilled meats arriving in Northern Ireland from Great Britain scheduled to expire on July 1. It wasn’t obvious after Cornwall that Johnson would follow that advice. But last Wednesday, with time running out on the exemption, the UK and EU jointly agreed to extend it for three months. And while averting—at least for the time being—a “sausage war,” the EU and UK also made some progress in implementing the Protocol.

The Protocol, which, including annexes, is 63 pages, set out the arrangements the EU and UK agreed would be necessary after the UK’s exit from the EU in order to address the unique circumstances on the island of Ireland—specifically, those needed to maintain 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. The arrangements included most notably—and controversially—Northern Ireland continuing to adhere to the rules and regulations of the EU’s single market and applying the EU’s customs code and border procedures to all goods arriving from Great Britain or elsewhere outside the EU. In effect, the Protocol created a border in the Irish Sea for goods moving from Great Britain to Northern Ireland in order to avoid a hard border between Northern Ireland and the Republic.

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 the UK would remain in the EU’s single market and customs union. On December 24, the EU and UK concluded their Trade and Cooperation Agreement (TCA) that was provisionally applied, pending approval by the European Parliament, as of January 1, 2021. That meant that since, as of that date, the UK would no longer be in the EU’s single market and customs union, all goods and products arriving in Northern Ireland from Great Britain would, in accordance with the Protocol, 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 or use 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. The exemptions, known as grace periods, were granted to ensure that those goods would continue to be available to the citizens of Northern Ireland without delays or interruptions while businesses adapted to the new arrangements and procedures that would apply after the transition period ended. The grace periods varied in length but most were for three months and thus would expire as of April 1, 2021. 

In early February, Gove wrote Šefčovič and said there was an urgent need 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 in December be extended—specifically, 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 grace period for medicines also be extended to 2023; 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. Gove and Šefčovič met virtually on several occasions throughout February and at each meeting both sides reiterated their commitment to the Good Friday Agreement, the proper implementation of the Protocol, and finding solutions to outstanding issues. But notwithstanding those expressions of commitment, none of the grace periods were extended.

In late January, Johnson announced the appointment of Lord David Frost, who had served as the UK’s chief negotiator of the Withdrawal Agreement and the TCA, as his representative for Brexit and international policy, and three weeks later he appointed him Minister of State in the Cabinet Office. With that appointment, Frost took over Gove’s responsibilities as co-chair of the EU-UK Joint Committee and co-chair of the EU-UK Partnership Council that oversees implementation of the TCA. Frost assumed the new positions on March 1, and two days later Brandon Lewis, the Secretary of State for Northern Ireland, issued a ministerial statement that 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.”

Šefčovič immediately 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.” 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 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.”

On March 9, 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 involves the issuance of a letter of formal notice that includes a request for a response within a specific period of time. On March 15, the Commission announced it had sent a letter of formal notice to the UK “for breaches of substantive provisions of EU law concerning the movement of goods and pet travel made applicable by virtue of the Protocol on Ireland and Northern Ireland. This marks the beginning of a formal infringement process against the United Kingdom.” The letter requested the UK to carry out “swift remedial actions to restore compliance with the terms of the Protocol.” The EU gave the UK one month to reply to the letter.

Also on March 15, Šefčovič sent a “political letter” to Frost informing him that the UK’s unilateral action without any discussion or consultation with the EU constitutes a “breach of the mutual trust and spirit of cooperation that we managed to rebuild in the last months of 2020….and is a violation of Article 5(3) and (4) of the Protocol on Ireland/Northern Ireland…and amounts in itself to a violation of the duty of good faith provided for in Article 5 of the Withdrawal Agreement.” He informed Frost the Commission was initiating infringement proceedings and told him the letter of formal notice addresses “the breaches of the Protocol by UK authorities and asks for swift remedial actions to ensure compliance with the provisions of Union law made applicable by the Protocol.” He called on the UK government “to rectify and refrain from putting into practice the statements and guidance published on 3 March and 4 March 2021 and to provide the Union a credible roadmap, with clear deliverables and milestones for the implementation of the relevant rules and requirements of the Protocol for which implementation is deficient or delayed. I expect these actions to be implemented before the end of the month in order to restore trust.” He informed Frost that “should the UK government fail to enter into consultations in the Joint Committee in good faith, with the aim of reaching a mutually agreed solution by the end of this month, I intend to provide written notice to the Joint Committee to commence consultations under Article 169 of the Withdrawal Agreement, as a first step in the dispute settlement process set out in Title III of Part Six of the Withdrawal Agreement.”

On April 15, Frost and Šefčovič held an informal meeting in Brussels and reviewed the situation regarding the Protocol. Both sides said the meeting took place in a “constructive atmosphere.” Frost said intensive discussions between the co-chairs of the specialized committee on the Protocol “had begun to clarify the outstanding issues, and some positive momentum had been established.” But a number of difficult issues remained and he agreed there should be “intensified contacts at all levels” in the coming weeks. Šefčovič for his part emphasized the EU’s unwavering commitment to the Good Friday (Belfast) Agreement and to finding joint solutions that ensure the Protocol is fully implemented while upholding the integrity of the EU’s single market. He emphasized in particular that solutions could only be found through “joint actions and through joint bodies” and that “mutually agreed paths toward compliance are key for the full implementation of the Protocol.” In particular, he made it clear that “the implementation of the Protocol is a joint endeavor, which leaves no space for unilateral action.” To underscore the point, he said the Commission’s ongoing legal actions against the UK for breaching the substantive provisions of the Protocol, as well as the good faith obligation under the Withdrawal Agreement, would continue as long as necessary.

On June 9, Frost and Šefčovič met in London as the co-chairs of both the Joint Committee, charged with overseeing the implementation of the Withdrawal Agreement, including the Protocol, and the Partnership Council, charged with overseeing the implementation of the TCA. It was the first formal meeting of the Joint Committee since February, when Gove was still the co-chair, and the first meeting of the Partnership Council. Their discussion as co-chairs of the Partnership Council reportedly took place in a “constructive atmosphere” and focused on establishing an indicative timetable for upcoming meetings of the various Joint Committees established by the TCA and implementation of the TCA in the areas of sanitary and phytosanitary (SPS) measures, customs, fisheries, law enforcement and judicial cooperation, with the UK emphasizing the need to continue and deepen cooperation in regard to customs and SPS.

But the same could not be said of their discussion, as co-chairs of the Joint Committee, regarding the implementation of the Withdrawal Agreement. In the run-up to the meeting, a new issue pertaining to the Protocol had arisen, notwithstanding the fact that the UK was already on formal notice of an infringement proceeding. EU food safety rules allow frozen meats to enter the EU market from non-member states but not chilled meat products—e.g., sausages, mince, chicken nuggets, etc. In December, the EU agreed to a six-month grace period during which the prohibition against chilled meats wouldn’t apply to shipments from Great Britain to Northern Ireland to give businesses time to adapt to the new situation. The six-month grace period was scheduled to end on July 1 and some in the UK urged the government to extend the grace period—unilaterally if need be. Johnson, speaking in the House of Commons, made it clear the government would defend the right of people in Northern Ireland to have “free and uninterrupted access to goods and services from the whole of the UK” and implied the government would, if need be, unilaterally extend the grace period. Šefčovič urged the UK not to do so and instead align its rules regarding food and agriculture checks with those of the EU so as to reduce the number of inspections on goods arriving in Northern Ireland from Great Britain.

In his statement after the meeting, Šefčovič emphasized that the UK must abide by its legal obligations and perform the required inspections between Great Britain and Northern Ireland since they can’t be performed between Northern Ireland and Ireland. He noted there were still “numerous and fundamental gaps in the UK’s implementation of our agreement. These gaps need to be filled by mutually agreed compliance paths, with concrete deadlines and milestones for the UK to fulfil its existing obligations.  There is no other way around this….Today we are at a crossroad in our relationship with the UK. Trust—which should be at the heart of every partnership—needs to be restored…If the UK were to take further unilateral action over the coming weeks, the EU will not be shy in reacting swiftly, firmly and resolutely to ensure that the UK abides by its international law obligations….We discussed it at great length this morning, when I was clearly advising against unilateral action and I was explaining what our steps would be….Our patience is wearing very, very thin, and therefore we have to assess all options we have at our disposal.” Frost for his part said after the meeting the Protocol was being implemented “in a way which is causing disruption in Northern Ireland and we had some pretty frank and honest discussions about that situation….There weren’t any breakthroughs, there weren’t any breakdowns either and we’re going to carry on talking. What we really now need to do is very urgently find some solutions which support the Belfast Good Friday Agreement, support the peace process in Northern Ireland, and allow things to return to normal….We don’t see what risk is caused to Northern Ireland if chilled meats are imported there from GB.”

It was Johnson’s tough words leading up to that meeting, and those of Šefčovič and Frost after the meeting, that prompted the fears among many, including the G7 leaders who met in Cornwall a week later, of a “sausage war,” the first shot of which would be a decision by the UK to violate the Protocol by unilaterally extending the exemption from EU rules for chilled meats arriving in Northern Ireland from Great Britain. But last Wednesday “war” was averted—at least for the time being; the EU and UK agreed to extend the grace period for sausages and other chilled meats moving from Great Britain to Northern Ireland to September 30 while continuing to discuss a longer-term solution.

Calling it a “sensible extension” and a “positive first step,” Frost nevertheless noted there is still a need for a longer-term solution. He said the decision “is a very clear sign that the Protocol has to be operated in a pragmatic and proportionate way. The chilled meats issue is only one of a very large number of problems with the way the Protocol is currently operating, and solutions need to be found with the EU to ensure it delivers on its original aims: to protect the Belfast (Good Friday) Agreement, safeguard Northern Ireland’s place in the UK, and protect the EU’s single market for goods. We look to work energetically with the EU to do so.” He noted that the extension doesn’t require that rules in the rest of the UK align with future changes in EU agrifood rules. He didn’t mention, however, that the extension comes with several conditions—specifically, that the chilled meats entering Northern Ireland will be subject to a channeling procedure to ensure that they travel from their designated place of arrival to the destination supermarket in Northern Ireland; that they remain under the control of the Northern Ireland authorities at all stages of the procedure; that they are sold exclusively to end consumers in supermarkets located in Northern Ireland and not to other food suppliers; that they are accompanied by official certificates issued by the UK competent authorities; and that they are packed for end consumers and bear labels making it clear they are for sale only in the UK.  Finally, the UK agreed that while the exemption is in effect it won’t amend the rules applicable to meat products already in force in the rest of the UK.

Šefčovič and the EU spelled out those conditions in their statements Wednesday. But they also noted that the EU had agreed to several additional “practical solutions” in order to help implement the Protocol and facilitate everyday life for those living in Northern Ireland. The Commission will table a legislative proposal in the early autumn that will secure the long-term supply of medicines, including generic medicines, from Great Britain to Northern Ireland by changing the EU’s rules so regulatory compliance functions for medicines authorized by the UK for the Northern Ireland market can be located in Great Britain. The Commission also has identified a solution to ease the movement of guide dogs accompanying persons traveling from Great Britain to Northern Ireland as well as one that will facilitate the movement of livestock from Great Britain to Northern Ireland by removing the need for re-tagging when animals move multiple times between Great Britain and Northern Ireland. And the Commission will waive the requirement that drivers show their motor insurance Green Card when crossing into the Republic—important since a substantial number of Northern Irish motorists cross the border each day. Neither Frost nor the UK government acknowledged or commented on these additional measures announced by Šefčovič and the EU.

Implementation of the Protocol is still a work-in-progress. Nevertheless, at least two things are clear after last Wednesday’s announcements: First, a “sausage war” has been averted, at least for the time being. And second, notwithstanding the UK’s refusal to acknowledge the proposals put forward by the Commission, some progress has been made in implementing the Protocol.

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