EU infringement proceedings against UK over Protocol
15 June 2022by eub2 -- last modified 15 June 2022
The European Commission launched infringement proceedings against the UK on 15 June for breaking international law and provides further details on possible solutions to facilitate the movement of goods between Great Britain and Northern Ireland.
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Position papers on customs and sanitary and phytosanitary (SPS) rules
Why is the Commission coming forward with these papers now?
The Protocol on Ireland / Northern Ireland, an integral part of the Withdrawal Agreement, allows Northern Ireland businesses to remain part of the United Kingdom internal market, while also having full access to the European Union Single Market for goods. This creates unparalleled opportunities for the further growth and prosperity of the Northern Ireland economy.
It responds to the unique challenges created by the UK's decision to leave the EU, and by the type of Brexit chosen by the UK government. The Protocol was the solution agreed by the EU and the UK to avoid a hard border on the island of Ireland, protect the 1998 Good Friday (Belfast) Agreement in all its dimensions, and ensure the integrity of the EU's Single Market.
The EU has shown considerable understanding for the practical difficulties of implementing the Protocol, demonstrating that solutions can be found within its framework. That is why in October 2021 the European Commission put forward far-reaching and impactful arrangements to facilitate the flow of goods from Great Britain to Northern Ireland. They provided for, among other things, an "express lane" with drastically reduced and simplified customs procedures on an unprecedented scale. A series of factsheets outline the main features of these suggested arrangements.
Today, the Commission is providing additional details on these arrangements. The aim of publishing these papers is to show that solutions to the movement of goods between Great Britain and Northern Ireland can be found within the Protocol, and can be found quickly, as was the case with medicines. The Commission remains ready to explore these solutions with the UK government.
What is included in today's position papers?
The European Commission has today published two position papers covering the following topics: customs and sanitary and phytosanitary rules. These papers show that the Commission's solutions are workable and impactful. They provide additional details compared to the texts published in October 2021.
Flexible customs formalities to facilitate the movement of goods from Great Britain to Northern Ireland – 50% reduction in paperwork
This solution consists of measures that will simplify and make customs formalities and processes easier. It will cut the documentation currently needed for goods moving from Great Britain to Northern Ireland by more than a half. This is also subject to safeguards, such as the UK committing to providing full and real-time access to IT systems, a review and termination clause, as well as the UK customs and market surveillance authorities implementing appropriate monitoring and enforcement measures.
- The Commission is suggesting a durable solution based on:
- an expanded trusted trader scheme that includes operators based in Great Britain and more small and medium manufacturers in Northern Ireland, including when the goods are returned to Great Britain after processing;
- simplified customs formalities for all trusted traders if their goods are not at risk of entering the EU; and
- a super reduced data set for customs declarations (from more than 80 pieces of data to less than 30).
A solution for Northern Ireland on food, plant and animal health (i.e. "Sanitary and Phytosanitary issues") – leading to approximately an 80% reduction in checks
This solution would result in a Northern Ireland-specific solution in the area of public, plant and animal health (i.e. "SPS"). In practice, this means vastly simplified certification and a significant reduction (approximately 80%) of official checks for a wide range of retail goods moving from Great Britain to be consumed in Northern Ireland. One simplified form would be required for an entire truckload of goods. This is in addition to the solutions that the EU put forward on 30 June, which facilitate the movement of live animals from Great Britain to Northern Ireland.
In order to protect the integrity of the Single Market, this would be subject to a number of conditions and safeguards, such as the UK delivering on its commitment to complete the construction of permanent Border Control Posts, specific packaging and labelling indicating that the goods are for sale only in the UK, and reinforced monitoring of supply chains. In addition, safeguards would include a rapid reaction mechanism to any identified problem in relation to individual products or traders, and unilateral measures by the EU in case of failure by UK competent authorities or the trader concerned to react to or remedy an identified problem. These specific conditions and safeguards would provide a robust monitoring and enforcement mechanism that would make a significant reduction of checks possible without endangering the integrity of the Single Market.
When taken together, the facilitations for both SPS and customs rules will create an "Express Lane" for the movement of goods from Great Britain to Northern Ireland, while at the same providing for a robust monitoring and enforcement mechanism in order to protect the integrity of the Single Market.
But the UK said it does not agree with your suggestions. What is the point in coming forward with these papers? Is this likely to help the situation?
The unilateral action by the UK is a formula for uncertainty and unpredictability. Only joint solutions would bring certainty and predictability. The Commission believes that by coming forward with these position papers, it proves that solutions can be found and put in practice quickly within the framework of the Protocol. The Commission believes that these suggestions open the way to a resolution of customs and SPS-related implementation issues.
Is the Commission open to negotiating further?
The EU will not renegotiate the Protocol that reflects a delicate, long-negotiated balance, protecting the Good Friday (Belfast) Agreement in all its parts. But we have always been open to work jointly with the UK to facilitate the implementation of the Protocol in order to bring long-term legal certainty and predictability to the people and businesses in Northern Ireland. We never pursued a "take-it-or-leave-it" approach. This remains no less true than it was before the UK's most recent unilateral move.
The Commission stands ready to continue discussions with the UK in order to identify joint solutions for the benefit of people and businesses in Northern Ireland – but the solutions have to be within the framework of the Protocol and the necessary safeguards for the protection of the EU Single Market need to be in place.
The UK set out its position in its Command Paper last year. Why won't the EU engage with that?
The Commission has engaged with the UK on its Command Paper and has explained in full its opinion. The Commission's October 2021 papers address the same issues as those addressed in certain elements of the Command Paper.
However, a large proportion of the Command Paper would require the complete renegotiation of the Protocol, which the EU does not agree with for the reasons set out below.
In addition, some issues proposed in the Command Paper are not at all related to the practical impact of the Protocol or on trade flows, for instance when the UK seeks to remove any role for the EU institutions. The UK wants to simultaneously increase flexibility – and so risk for the EU's Single Market – while weakening the applicable governance structures.
Significantly, the UK has presented a dual regulatory regime as a solution to address the consequences of regulatory divergence between the EU and the UK. It would mean that the same product is subject to two different sets of rules and requirements depending on whether it stays in Northern Ireland or enters the EU.
This is not a solution because:
- It would create confusion for consumers, local producers, importers and other businesses regarding the applicable rules. The administrative burden would be extremely heavy.
- It would be very difficult to ensure monitoring and controls of goods, and properly protect consumers.
- It would pose a significant risk to the EU Single Market, particularly in the area of agri-food (spreading of infectious diseases across the island of Ireland), and other highly regulated goods such as chemicals, where safety and a clear understanding of the rules is key.
Why won't the UK's proposed Trusted Trader scheme work, as outlined in the Command Paper?
The UK has proposed a Trusted Trader scheme, which would mean that for goods remaining in Northern Ireland, UK traders would not be subject to any customs processes or regulatory compliance checks, while goods destined for Ireland and the rest of the EU Single Market would be fully policed. This system – which would be entirely based on traders' self-compliance – would create significant risks for the EU Single Market and would be open to all kinds of fraud.
The Protocol already provides for a type of Trusted Trader scheme and the Commission has long suggested that this should be explored further.
The only way to distinguish goods that remain in Northern Ireland from those that move to the EU is to have some form of customs processes. This will enable the EU to have access to the data that is necessary to perform risk-based controls. As part of the October 2021 package, the Commission has already proposed to cut in half all customs-related requirements. This is a significant reduction in paperwork.
There have already been cases in 2021 where goods were shipped to Northern Ireland, but the ultimate destination was in all likelihood the EU continental market (e.g. counterfeited products with a continental two-pin plug), or where the goods end up on the EU market (cigarettes for the black market).
Why won't the EU you renegotiate the Protocol?
Renegotiating the Protocol is unrealistic. No workable alternative solution has been found to this delicate, long-negotiated balance. Any renegotiation would simply bring further legal uncertainty for people and businesses in Northern Ireland. For these reasons, the European Union will not renegotiate the Protocol and is united in this position.
The Protocol was agreed jointly and ratified by both the EU and the UK to address the challenges Brexit - and the UK's chosen form of Brexit - created for the island of Ireland and to protect the hard-earned gains of the peace process. It is the solution that the UK government proposed to meet these aims.
The EU has shown that solutions for practical difficulties to implement the Protocol can be found within the framework of the Protocol. For example, a solution was found - and now is implemented - to ensure that the same medicines continue to be available in Northern Ireland at the same time as in the rest of the UK. Today's papers further highlight the potential of solutions within the Protocol.
Is the UK sharing the required data with the EU now?
While the UK has implemented certain improvements, it does not yet provide the EU with real-time access to the relevant UK databases that will enable us to carry out appropriate risk analyses, as required by the Protocol and Joint Committee Decision No 6. This hampers the EU's ability to protect the integrity of the Single Market, including the health and safety of its citizens. It also significantly damages trust and confidence in the ongoing discussions between the EU and the UK. That is why the Commission has begun infringement proceedings against the UK by issuing a Letter of Formal Notice.
Why is the Commission insisting on the oversight of the Court of Justice in Northern Ireland?
The Withdrawal Agreement makes EU rules on goods directly applicable in Northern Ireland. This is necessary so that Northern Ireland can benefit from full access to the EU Single Market for goods, and to avoid a hard border on the island of Ireland.
The Court of Justice of the EU is the only competent body for any disputes that may flow from the interpretation and application of EU law under the Protocol.
It is misleading to portray the Court as a biased court that would only defend EU interests. The Court has ruled against EU legislation and decisions by the European Commission on numerous occasions, including in the area of goods.
The Court protects the interests of Northern Ireland operators when operating on the EU Single Market as well as the interests of operators from the EU.
What other solutions has the EU found apart from the October 2021 package?
The Commission has been actively engaging with policy stakeholders, civil society and businesses in Northern Ireland to hear their experiences regarding the implementation of the Protocol. Based on this outreach and in addition to the October 2021 package, the Commission has already implemented a number of facilitations through targeted amendments of EU law that greatly facilitate the movement of live animals and animal products from Great Britain to Northern Ireland. As an example: according to standard EU rules, a sheep transported from Northern Ireland to a fair in Great Britain, but which remained unsold at the end of the event, had to wait 6 months in Great Britain before returning to its Northern Irish holding of origin. Thanks to this amendment of EU law, the sheep can now return to Northern Ireland without any waiting period. More information is available here.
Is the medicines issue now sorted out?
Yes. On 12 April 2022, the EU agreed to change its rules in record time to ensure the continued long-term supply of medicines from Great Britain to Northern Ireland, and to address outstanding supply concerns in Cyprus, Ireland and Malta - markets that have been historically supplied through or by Great Britain. The proposals were put forward by the Commission in December 2021, following extensive engagement with citizens, industry and other business representatives in the EU and the UK, in addition to extensive talks with the UK government to find this long-lasting solution.
Do checks and controls really need to take place on goods entering Northern Ireland?
The introduction of some checks and controls on goods moving to Northern Ireland from Great Britain is the direct consequence of the UK government's own choices. They are necessary to protect the integrity of the EU's Single Market, including human, animal and plant health.
The UK could have mitigated the consequences of Brexit for the island of Ireland but chose not to.
While there are limited checks and controls on goods moving between Great Britain and Northern Ireland, this means that there is no need for a border of any kind between Ireland and Northern Ireland. This protects and promotes the all-island economy and ensures that Northern Ireland has full access to the EU Single Market for goods.
It should also be recalled that Brexit has had an impact on trade flows between Great Britain and the European Union. Given its access to the EU Single Market for goods, Northern Ireland is in a very different situation.
The UK says that the application of the Protocol would worsen the status quo. Is this true?
First, the current trading arrangements are not the benchmark, as the UK side is currently breaking its international legal commitments by having introduced unilateral grace periods that disapply specific parts of the Protocol in the customs and SPS areas.
Second, Brexit - and the type of Brexit the UK government has chosen - has real consequences. The EU nevertheless wants to minimise those consequences for the people and businesses in Northern Ireland.
Third, the claim that the Commission's proposed solutions are more onerous than the current situation is wrong:
- Crucially, the Commission's package provides permanent solutions, thereby ensuring the legal certainty and predictability that business and stakeholders need, and far-reaching structural facilitations for moving goods from Great Britain to Northern Ireland;
- In the area of customs, they go further than the current situation, for instance for trusted traders moving goods not at risk, as the Commission's ideas:
-
- expand the scope of beneficiaries of the 'UK Trader Scheme' for Trusted Traders to businesses established in Great Britain (and not only in Northern Ireland), and to additional manufacturing sectors, including when the goods are returned to Great Britain after processing;
- significantly simplify the customs paperwork and reduce data requirements for customs declarations ('super reduced data set', from more than 80 data elements down to less than 30, including the simplification of the commodity code (CN-code) to be provided to describe the goods from 10 to 8 digits ).
- Likewise, in the sanitary and phytosanitary area, the EU's proposed solutions:
-
- expand the scope for food suppliers from supermarkets to all retailers, including for example the hospitality sector, schools, canteens – and any other place which sells food for final consumption;
- expand the product scope, by including items that are usually prohibited for import into the EU, such as chilled meat products. Food products of animal-origin from third countries can of course be supplied to Northern Ireland, including through Great Britain, provided that they comply with applicable EU sanitary requirements;
- provide for significantly reduced rates for identity and physical checks (more than 80 % compared to the applicable mandatory checks for animal-origin products under EU sanitary and phytosanitary legislation);
- official certification by the UK competent authorities will be required – this is also the case under the December 2020 UK unilateral grace periods.
The UK government says that the Good Friday (Belfast) Agreement is threatened by EU action. What does the EU say to that?
The EU has proven time and again its commitment to the Good Friday (Belfast) Agreement to preserve the hard-earned gains of the peace process. For example, the EU continues to support the PEACE+ programme of approximately €1 billion, together with the Irish and British governments.
Moreover, the Protocol respects the constitutional position of Northern Ireland within the UK. This is made clear in the preamble to the Protocol, recalling that "the United Kingdom's withdrawal from the Union presents a significant and unique challenge to the island of Ireland", and reaffirms that "the achievements, benefits and commitments of the peace process will remain of paramount importance to peace, stability and reconciliation there."
Article 1 of the Protocol makes explicit that the Protocol is "without prejudice to the provisions of the 1998 Agreement in respect of the constitutional status of Northern Ireland and the principle of consent". It contains "arrangements necessary to address the unique circumstances on the island of Ireland, to maintain the necessary conditions for continued North-South cooperation, to avoid a hard border and to protect the 1998 Agreement in all its dimensions."
How will the EU protect the integrity of the EU Single Market?
An integral part of our ideas to substantially reduce checks and controls between Great Britain and Northern Ireland is the specific ways to protect the integrity of the EU Single Market.
As a pre-condition for any such arrangement, the UK should deliver on its existing commitment to complete permanent Border Control Posts, label goods for sale only in the UK, and reinforce monitoring of supply chains.
As further assurances, our package includes a rapid reaction mechanism for any identified problem with individual products or traders, and unilateral EU measures if the UK authorities or the trader concerned fail to react to an identified problem.
Infringements
Why did the EU launch today's infringements?
In September 2021, the Commission decided to put on hold the ongoing legal action launched against the UK in March 2021 in a spirit of constructive cooperation to create the space to look for joint solutions, whilst reserving its rights if the discussions were no longer constructive. The UK's unilateral action goes directly against this spirit.
Therefore, the European Commission has today launched infringement proceedings against the UK for not complying with significant parts of the Protocol on Ireland/Northern Ireland. Despite repeated calls on the UK government to implement the Protocol, it has failed to do so. This is a clear breach of international law. The aim of these infringement proceedings is to restore compliance with the Protocol in a number of key areas where the UK hasn't been implementing it properly – ultimately with the goal of protecting the health and safety of EU citizens.
The Commission stands ready to launch any new infringement procedures that serve to protect the EU Single Market from the numerous risks that the UK's violation of the Protocol poses in terms of the health and safety of EU citizens.
What remedies does the EU have?
The aim remains the implementation of the Protocol. That is the only way to ensure legal certainty and predictability for people and businesses in Northern Ireland.
If the UK government does not reply to the Reasoned Opinion within two months, the Commission will consider taking the UK to the Court of Justice of the European Union. Under Article 12(4) of the Protocol, the Court of Justice has full powers provided for under the Treaties, including the possibility to impose a lump sum or penalty payment.
Other remedies are possible, including in relation to the Trade and Cooperation Agreement.
The UK has said it has been actively trying to make the Protocol work. Is this true?
The UK has invested little to no time in explaining the Protocol to people and businesses in Northern Ireland, nor did it prepare them adequately for the changes Brexit caused.
The UK has yet to deliver on all its fundamental obligations under the Protocol – such as:
- building the necessary infrastructure for performing sanitary and phytosanitary (SPS) controls (Border Control Posts); or
- providing the EU with effective real-time access to UK customs databases to enable the EU to protect its Single Market, for example by asking the UK authorities to carry out additional controls when justified.
The UK does not even comply with the terms it set out in its own unilateral declarations from December 2020 regarding the movement of agri-food products.
In February 2022, the EU proposed an ambitious calendar of discussions to find meaningful and lasting practical solutions. However, to date, the UK has not responded. At the same time, the UK has not fully explored the potential of the facilitations the Commission presented in October 2021.
The Commission stands ready to work with the UK. Only joint solutions will work. Unilateral action by the UK would make the work on possible solutions more difficult and undermine long-term legal certainty and predictability for the people and businesses in Northern Ireland.
What will happen if the UK's bill enters into force?
The Commission reserves the right to act at any time to protect the EU Single Market and to uphold respect for its agreements and international law.
A unilateral solution violating an agreement will never be tolerated by the EU.
Position papers on possible solutions – Customs and Sanitary and phytosanitary issues
Source: European Commission