Overriding the Northern Ireland Protocol and violating international law: Johnson’s new Bill triggers EU infringement proceedings

Within days of Boris Johnson’s legislative proposal, on Wednesday, June 15, the European Commission followed up on its promised actions by initiating infringement proceedings. The EU executive’s retaliation, in fact, comes in the wake of a bill hosted by the British premier on Monday, June 13, aimed at unilaterally invalidating part of the Northern Ireland Protocol signed in the post-Brexit era. The government says it is allowed to change the terms of an international agreement, like the Protocol, in order to “safeguard an essential interest”: the new law was a forced decision, needed to respond to the discontent of the Unionist community in Northern Ireland, which would find itself detached from the British single market because of the Protocol. Under this new law, instead, border controls between Britain and Northern Ireland would be eliminated to give Ulster businesses the choice of following European or British standards. Instead, for Šefčovič, vice-president of the EU executive, “there is no political justification for unilaterally changing an international agreement”: thus, in addition to constituting international offence as it is a breach of international law, it would also be extremely damaging to mutual trust and respect between the already increasingly stormy relationship between London and Brussels. Opinion also shared by the Irish Taoiseach, the Alliance Party of Northern Ireland’s and Sinn Féin’s leaders, 52 members of Northern Ireland’s assembly, and even within the British premier’s own Conservative Party.

The Northern Ireland Protocol is a protocol annexed to Britain’s Withdrawal Agreement from the EU – thus of international law: it governs customs and immigration issues at the border, on the island of Ireland, between the UK and the EU, and on certain aspects of trade in goods between Northern Ireland and the rest of the UK. Its terms were negotiated in 2019 and went into effect on December 31, 2020. As per the Protocol, the entire United Kingdom would have left the EU customs union as a single customs territory, with Northern Ireland included, but the latter would have adopted the EU single market regulations on goods and thus remained an entry point into the EU customs union – an actual backdoor. Goods entering Northern Ireland must continue to follow EU regulations and standards, including strict sanitary rules on food products. This has resulted in the checks moving to Northern Ireland’s ports on products brought into the country from the rest of the UK. This would have protected the EU single market post-Brexit while avoiding a “hard border” on the island of Ireland, since Éire remained in the EU. Thus, Northern Ireland is formally outside the single market, but EU rules on free movement of people and goods and EU customs union rules – pursuant to Articles 26 and 28 TFEU – still apply. While this ensures that there are no customs controls – and thus a customs border – between Northern Ireland and the Republic of Ireland, it has also created a de facto customs border along the Irish Sea for customs purposes, separating Northern Ireland from Great Britain. After Brexit, the border in the island of Ireland became the only land border between the UK and the EU. The EU single market provisions and the UK internal market therefore require certain customs and trade controls at their external borders.

The Protocol was designed in the wake of the Brexit referendum, won by leave, in which yet nearly 56% of Northern Irish voters – most of them Unionists – had decided to remain in the European Union. Following the Brexit referendum, Theresa May’s first government decided that not only would the UK have to leave the European Union, but also the EU customs union and the EU common market. This meant that a customs and regulatory border would arise between the UK and the EU – and thus also between Northern Ireland and Éire. This would call into question the special status of this border, which had succeeded in ending the 30-year internecine conflict, known as the Troubles, and demilitarizing the Irish border with the 1998 Good Friday Agreement: the border had been made largely invisible, with no physical barrier or customs controls on its many crossings. Thus, new customs barriers might make the border a target for dissident nationalist paramilitaries. This agreement had been made possible by the common membership of both countries in both the single market and the customs union – no checks or paperwork were necessary since both sides had the same EU trade rules. However, with Brexit the situation was irretrievably reversed, and the new UK-EU border in Ireland was recognized as causing irresolvable problems. There was thus a trilemma with competing goals: no hard border on the island, no customs border in the Irish Sea, and no British participation in the EU single market and the EU customs union. It was not possible to have all three. The Protocol, negotiated by Johnson himself, thus stands as an attempt to reconcile the first and second issues, while being forced to establish a UK-Northern Ireland customs border.

Although the Protocol has not yet been fully implemented due to the application of grace periods and easements, EU customs procedures for the movement of goods within the UK have already yielded considerable troubles. British officers and businesses began raising the alarm soon after the implementation of the Protocol, warning that extra paperwork – caused by the de facto customs border along the Irish Sea – was increasing costs and delaying shipments of goods. Some UK suppliers have even stopped shipping across the Irish Sea altogether, preferring to avoid the red tape and taxes associated with sending goods to Ulster – challenges sharpened by the challenges of post-COVID economic recovery. This was the problem that the Protocol immediately showed. After tough negotiations, Britain and the EU agreed that Northern Ireland would remain part of the EU’s market arrangements. This allowed free trade with Éire, but at the cost of complicating economic relations between Ulster and the UK – creating a new invisible border between Northern Ireland and Britain. In addition, taxation rules prevent Northern Ireland citizens from enjoying the same full benefits as the rest of the UK. To overcome these inconveniences, in mid-May British Foreign Secretary Liz Truss issued a statement updating the House of Commons on the government’s intention to introduce legislation to make changes to the Northern Ireland Protocol. With these changes – “relatively trivial”, according to the premier – Johnson aims to simplify the flow of goods from Britain to Northern Ireland and remove additional costs and paperwork and standardize tax breaks: basically, therefore, “bureaucratic simplifications”.

Northern Ireland’s European law obligations under the Protocol flow directly into domestic law through the “conduit pipe” of section 7A of the Withdrawal Agreement, through which it gains direct effect and supremacy as a matter of domestic law in the United Kingdom. Clause 2 of the new Bill excludes a swathe of Protocol provisions from the scope of section 7A, cutting the pipe – and thus severing the link between these Protocol obligations and domestic law. The Protocol provisions directly excluded from the scope of section 7A include all its provisions relating to the movement of goods, including customs (clause 4 of the new Bill), and regulation of goods (clause 8), State aid rules (clause 12), and the enforcement role of the Court of Justice of the European Union (clause 13). In each of these areas, ministers are given broad powers to enact new domestic law, allowing the UK government to substitute its own scheme in lieu of the Protocol rules. Thus, under the legislation, London would introduce two lanes for the goods exchange supported by trade data and a commodity trust system: a “red” and “green” lane for transporting goods from the rest of the UK to Northern Ireland, with few checks on green-lane items remaining in the UK but more paperwork for red-lane items destined for the EU or moved by traders outside the system. Robust data sharing and a specially designed computer system would be made available, with information available in real time and well below the time required to cross the Irish Sea. Regulatory barriers to the sale in Northern Ireland of goods produced to UK standards would also be removed. Products could be marked with a CE or UKCA mark or both if they meet relevant standards. In addition, the UK government wants to implement a dual regulatory regime: companies will be allowed to choose whether to place goods on the Northern Ireland market under UK or EU rules, choosing to meet one of the two standards. The proposal would also address governance issues, providing for trade disputes to be resolved by independent arbitration rather than by the European Court of Justice, ending its role as sole arbitrator.

The UK government’s legal seeks to demonstrate how such legislation is lawful under international law. The doctrine of necessity provides a clear basis in international law for justifying the breach of international obligations under certain exceptional and limited conditions. It has been accepted by the International Court of Justice and is reflected in the International Law Commission’s 2001 Articles on State Responsibility, generally reflecting customary international law. In essence, the term “necessity” is used in international law to legitimately justify situations in which the only way a State can safeguard an essential interest is by failing to fulfill another international obligation. Under the conditions defined in Article 25, the action taken cannot seriously harm the essential interests of the other State(s) and it is the only way for the State to safeguard an essential interest against a grave and imminent peril. The Protocol also includes a safeguard clause in Article 16, which allows the UK or EU to take unilateral action to suspend parts of the agreement if it believes the agreement leads to serious economic, social or environmental difficulties leading to “diversion of trade”. Indeed, British government lawyers insist that this is a genuine exceptional situation, and it is only in the difficult, complex, and unique circumstances of Northern Ireland that the government has reluctantly decided to introduce legislative measures which, once in force, provide for the non-fulfillment of certain obligations. The Unionist community and the British government thus argue that by undermining Northern Ireland’s status in the United Kingdom, the Protocol damages Northern Ireland’s trade and political stability. This position, in the eyes of EU advocates, is untenable because the British government has made no effort to use the specific mechanisms available under the protocol to address these social concerns.

Thus, the Brussels line stands firm: any unilateral amendment to the Protocol violates international law. In its June 15 press release, the Commission revealed that because repeated calls for the UK government to implement the Protocol went unheeded, the European executive – which has that power under Article 17 TEU as the guardian of the Treaties or any other rule falling under the law of the Union including agreements signed by it – has therefore initiated infringement proceedings against the UK for failing to comply with significant parts of it. First, the Commission decided to take the infringement initiated on March 15, 2021 to its second stage by issuing a reasoned opinion. This infringement proceeding was initiated because of the UK’s failure to implement the Protocol, particularly with regard to certification requirements for the movement of agri-food products. It had been suspended last year in a spirit of constructive cooperation to create space to seek joint solutions with the UK. However, the UK’s reluctance to engage in meaningful discussions and the latest unilateral action goes directly against that spirit. If the UK government does not respond within two months, the Commission will consider taking the UK to the ECJ. Pursuant to Article 12(4) of the Protocol, the ECJ has full powers under the Treaties, including the ability to impose a lump sum or penalty payment. Second, the Commission also decided to launch two new infringement procedures against the UK. The first, for failure to meet its obligations under EU sanitary and phytosanitary rules, as the UK is not carrying out the necessary checks and not ensuring adequate staffing and infrastructure at border checkpoints in Northern Ireland. The second, for failure to provide the EU with certain trade statistics data on Northern Ireland, as required by the Protocol. This marks the start of formal infringement proceedings, as required by Article 12(4) of the Protocol, read in conjunction with Article 258 TFEU. The new letters ask the UK to respond within two months by taking prompt corrective action to restore compliance with the terms of the Protocol. In addition, EU officials have said that Britain will not be allowed to join its 95-billion-euro Horizon Europe research program until outstanding disputes are resolved – debut of a possible retaliatory trade war that would be a “gross overreaction” according to Johnson.

The Commission’s overall goal remains not to renegotiate the Protocol, but to find common solutions with the United Kingdom in the framework of the Protocol, thus ensuring legal certainty and predictability for people and businesses in Northern Ireland. For this reason, the Commission provides further details on possible solutions proposed in October 2021 to facilitate the movement of goods between Great Britain and Northern Ireland, with the aim of showing that solutions can be found within the Protocol. As previously outlined, the EU presents a simplified model for the implementation of the Protocol, in which the flow of goods between Great Britain and Northern Ireland – as far as goods destined to remain in Northern Ireland – is significantly facilitated. This facilitation is made possible by several safeguards to ensure that goods do not move into the EU single market.

As to what happened last year, it is also likely that this infringement proceeding will stop with the pre-litigation stage, without reaching the litigation stage: that is, with the mere dialogue between the State and the Commission after the reasoned opinion without reaching the trial before the ECJ and its judgment. While from a juridical standpoint there are likely to be no consequences, it is certain that there will be some on a political level: the UK’s continued violations of the Protocol could thus cause them to lose international trust and respect in the eyes of European institutions, which, in light of the principle of sincere cooperation under Article 4 TEU, could potentially undermine their future relations.