‘This is illegal’: EU starts new legal proceedings against UK over protocol plans

No justification for unilaterally changing an international agreement, says Maroš Šefčovič

The European Commission has begun two new legal proceedings against Britain on Wednesday after London published plans to override some post-Brexit rules governing Northern Irish trade, and resumed another challenge it had previously paused.

On Monday, the commission had said it was likely to recommence legal action against the UK in response to the legislation announced by the British government which would set aside parts of the Northern Ireland protocol.

The commission proceedings could result in the European Court of Justice (ECJ) imposing fines, although these would likely be more than a year away.

London has proposed scrapping some checks on goods from the rest of the United Kingdom arriving in the North and challenged the role of the ECJ to decide on parts of the post-Brexit arrangement agreed by the EU and Britain.

European Commission vice president Maroš Šefčovič, who oversees EU relations with former EU member Britain, said there was no justification for unilaterally changing an international agreement

“Let’s call a spade a spade. This is illegal,” he told a news conference, adding it cast a shadow on relations at a time when international co-operation was even more important, a reference to the alliance against Russia’s invasion of Ukraine.

The three legal proceedings do not relate to Britain’s new plans, but to the EU belief that Britain has failed to implement the protocol that governs North trading.

The two new suits charge Britain with failing to ensure adequate staff and infrastructure to carry out checks in Northern Ireland and not providing the EU with sufficient trade data.

The other, paused a year ago to improve the atmosphere around talks, relates to the movement of agri-food products. Mr Šefčovič said that the EU might take the case to the ECJ if Britain failed to address the EU’s charges within two months.

Mr Šefčovič said Brussels still wanted to resume talks with Britain to resolve difficulties in shipping British products to Northern Ireland.

“We decided that our response should be measured, should be proportionate. And we are offering not only legal action here today but we’ve been fleshing out what concretely we could do,” he said.

Tánaiste Leo Varadkar has said that “the jury is still out” on whether British prime minister Boris Johnson was trustworthy.

The recent actions of the British government – introducing legislation to amend the North protocol – “were not the actions of a trustworthy government” he told Newstalk’s Pat Kenny show. “It’s not right what they’re doing.” The protocol was a legal document, and the British government should honour its international obligations, he said.

Mr Varadkar said he thought it was a mistake to introduce legislation as the protocol as it had been written was open to modification.

The “vast majority” of MLAs did not want the UK government to have the power to over-ride the wishes of the people of Northern Ireland, he said.

When asked about his relationship with Taoiseach Micheál Martin, Mr Varadkar dismissed reports in Sunday newspapers that their relationship was difficult. He said his relationship with Fianna Fáil was very good and was getting better with time.

Mr Varadkar declined to respond to a question about the possibility of the DPP taking a case against him for sharing information. He said he would not speculate on what the DPP was going to do, adding the matter was up to the DPP.

Elsewhere, British ambassador to Ireland Paul Johnston said the UK government does not want to scrap the Northern Ireland Protocol in its entirety but that its experience in the past 18 months was that it had not been working “as well as we would want”.

“It’s not representing the balance of the Good Friday Agreement, and therefore we’d like to make changes, we’d like to make changes ideally through negotiation with the European Union, and the protocol itself provides for such changes to be made, that the agreement can be superseded in whole or in part,” he told RTÉ Radio’s Morning Ireland.

“We haven’t got there yet so we’re introducing this legislation still in the hope that as we take the legislation forward there will also be scope to take negotiations forward, so we’re proceeding at the moment with these two tracks open to us and obviously we’re going to be talking and listening and consulting.”

Mr Johnston said the legislation was a framework and that the legislation provided an opportunity to move into negotiation phase.

“We spent a lot of time examining the European Commission’s proposals from last October, talking to them about it, hundreds of hours of discussion and we acknowledge that they were an important effort by the commission to address some of the issues that had arisen, but when we analysed them in more detail we saw that they were really an effort to mitigate the situation that we would be in if we had full implementation of the protocol which no one is really talking about any more,” he said.

“So though they would involve a reduction in the checks and the bureaucracy — that theoretical situation high point which we’ve never been at, they would actually leave us in many respects worse off than we are today with the grace periods and they wouldn’t address some of the other issues.”

Mr Johnston said the British government was clear that the legislation being brought forward was lawful in terms of international law obligations related to the “overriding priority for us of preserving and protecting the Good Friday Agreement in all its elements”.

“We acknowledge obviously that there is a lot of debate around the proposals, and we’re talking to our partners, to the Taoiseach, many senior officials only yesterday, and we’re very keen to continue that dialogue.”

Both sides continued to clarify misunderstandings, to address points in dispute and discuss the way forward, as both shared an understanding of the overriding importance of peace and stability in Northern Ireland and the protection of the Good Friday Agreement and the need to get the Executive up and running, he said.

“We would like to see this happening straight away without preconditions. But we keep on bumping up against this position that the European Commission and the European Union refuse to consider reopening aspects of the protocol even though that’s provided for in the text itself.

“We set out last summer in a command paper the changes we would like to make, we’ve offered 17 non papers to the commission — documents setting out some of the changes we would want, we’ve been very clear about the changes we would want,” Mr Johnston said.

“The prime minister, the northern secretary and the foreign secretary have all been very clear with the DUP that there was an important election in May, those election results should be respected, the Executive should be up and running, delivering for the people of Northern Ireland without preconditions, all of that should be happening in parallel with the process to address the problems of the Protocol. We’re very frustrated that hasn’t happened.”

Mr Johnston said he did not know the details of when the second reading of the legislation would be brought forward, but he did know the British government wanted to proceed with the legislation but also wanted to see powersharing restored “for the benefit of everyone in Northern Ireland as soon as possible” — Reuters, additional reporting: Vivienne Clarke