EU prepares legal action against UK over protocol

Two legal routes for redress: infringement procedure or dispute resolution mechanism

Lawyers in the European Commission are drawing up formal notice documents for the United Kingdom, the first step in legal action against London to compel it to stick to agreements signed on post-Brexit arrangements for Northern Ireland.

It comes after Britain announced it would unilaterally extend grace periods on certain checks in Northern Irish ports and airports that had initially been granted to allow supermarkets and other businesses more time to adjust their supply routes.

In response to the UK’s move, the commission warned it would use the legal means available in the trade deal and protocol on Northern Ireland to compel Britain to implement the agreement.

The first step may come within days. The commission’s vice-president and co-chairman of the joint committee with Britain, Maros Sefcovic, briefed ambassadors of the 27 member states on the situation and the legal options ahead on Tuesday.


Ultimately, this process can lead to fines or the imposition of retaliatory tariffs on trade with Britain if the EU's complaints are upheld

There are two legal routes for redress, The Irish Times understands.

The first is the launch of an infringement procedure, which starts with a formal letter of notice and can end up in the European Court of Justice. This is a process that the commission initiated previously over Britain’s introduction of the Internal Markets Bill in breach of the protocol last year and which can ultimately lead to fines.

The second option would be to go through the dispute resolution mechanism set out in the withdrawal agreement, under which the commission could argue that Britain has breached good-faith provisions. Ultimately, this process can lead to fines or the imposition of retaliatory tariffs on trade with Britain if the EU’s complaints are upheld and the UK does not reverse course, though this prospect is still some way off.

Officials dismayed

The British government's announcement of the unilateral extension of grace periods, which was done without notifying Mr Sefcovic, followed the appointment of the UK's combative former chief negotiator David Frost to lead relations with the bloc.

The move dismayed officials in Brussels who had been hoping for a reset in relations and led the European Parliament to delay a vote on ratification of the EU's free-trade deal with the UK, which must be held by the end of April.

Trade and industry figures in Britain have also called for a more conciliatory approach, after Lord Frost said the EU needed to shake off “ill will” towards the UK.

The British government insists that its move does not breach the withdrawal agreement and was a modest step required to keep supermarket shelves stocked.

The “temporary operational steps” are “lawful and consistent with a with a progressive and good faith implementation of the protocol”, wrote Lord Frost.

But the surprise announcement was widely decried in Brussels as another attempt to breach international law following the attempt to override Northern Ireland’s arrangements through domestic law last September that would make it more difficult to find pragmatic solutions to make implementation easier.

“It’s a clear indication that they are not reliable,” said an official.

Naomi O’Leary

Naomi O’Leary

Naomi O’Leary is Europe Correspondent of The Irish Times