March 11, 2021


UK/EU: Arbitration threats do not have to mean the end of Irish protocol

BY Carsten Nickel

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Given the ongoing tensions over Northern Ireland, the European Commission is now preparing for both legal action against and renewed political talks with the UK. This follows the UK’s decision to unilaterally prolong the grace periods on the introduction of new customs controls between Great Britain and Northern Ireland. Ultimately, however, the UK is likely to commit to the overall goal of Irish Sea controls, while the EU will probably accept greater pragmatism on the way to get there.

Unlike other parts of the UK’s EU withdrawal agreement, the Northern Ireland protocol is supervised by the EU institutions. This means that any non-compliance with the protocol by either side will be treated like an EU member state breaching EU law. In such a case, the Commission as the “guardian of the treaties” can take the respective member state to the Court of Justice of the EU, starting an “infringement procedure”. The UK (as well as Ireland and EU authorities) remain subject to EU judicial supervision on Northern Ireland.

This setup reflects the EU’s constitutional order prior to the UK’s decision to leave. The single market and customs union are areas in which the role of the Commission is strong (vis-à-vis member states). EU law related to these two areas continues to be applied in Northern Ireland past Brexit, because the Northern Ireland protocol rules that the region effectively remains in the single market and customs union. Therefore, any legal questions related to the protocol must be adjudicated by the competent EU court, as is the case across the entire rest of the single market and customs union.

However, even the judicial route is far from non-political considering, for instance, the well-known integrationist bias of the Luxembourg court. Most importantly, any infringement procedure might ultimately only serve as a bargaining chip in the overall political standoff between Brussels and Westminster. The current situation resembles the clash over the UK’s internal market bill from September 2020. Back then, the UK piled on pressure by tabling draft legislation that would have created new powers to disregard key parts of the protocol.

However, this only rendered completion of the then-stalling talks about the post-transition trade agreement more pressing: the most promising way to resolve many of the specific issue areas raised by the internal market bill, such as state aid rules, was to negotiate them in the context of the eventual trade agreement. Once that had been achieved, the UK found itself in a political position to tone down the bill’s most controversial bits, enabling the EU to drop its threat of legal action under the withdrawal agreement.

The current conflict over the protocol could play out in a similar way. In the end, the UK cannot eternally disregard the fact that it signed up for Irish Sea controls under the withdrawal agreement; and the EU can have no interest in a court ruling against a third country that is already flirting with calls to “rewrite” the protocol in its entirety. If neither side wants to go down that path, what they can do is, for instance, negotiate pragmatic provisions for sanitary and phytosanitary checks, in exchange for more time. This would reduce the disruptiveness of the very checks the EU and the UK are currently wrangling over.

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