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Northern Ireland Protocol: The EU response to the UK Bill to Fix NI - is the EU UK TCA at risk?

Updated: Jun 19, 2022

The EU is not amused about the UK NI Bill as it violates the agreement with the EU. Infringement procedures have kicked in. Is the EU-UK TCA at risk?


We'll acknowledge it.


We just cannot keep up!


Everything is moving so quickly!


The UK will publish a Bill on how to resolve the UK Northern Ireland problem on Monday. The EU responded that it will examine the law before commenting.


That reading and contemplation must have taken place on Wednesday. The EU had reached its decision within 48 hours.


That is rather rapid for the EU.


In a nutshell, NO WAY, JOSE!


Instead, the EU reopened the process that would result in the UK "suing" the EU for failing to comply with the Northern Ireland Protocol. Not only that, but the EU quickly supplied more specifics as to why what they are offering is much superior to what the UK is proposing. And that's a lot of text to get through.


All of this in only 72 hours. Let us attempt to put some order into what has transpired thus far.


Here's our assessment of the EU's reaction in terms of customs and global commerce.


Respect what you agreed, or else

Everyone is aware of it. The EU-UK collaboration can only succeed if both sides fulfil their legal obligations, such as the Withdrawal Agreement and the Trade and Cooperation Agreement. Both sides reached an agreement and signed a document. Is this not worth the words that have been put on it?


We have been here before

After lengthy and intense debates, it is the Northern Ireland Protocol that was finally able to pull together a solution that squared a circle, preventing a hard border between Ireland and Northern Ireland, while preserving NI's access to the Single Market.


Trust not Truss

The EU thinks that adhering to international agreements fosters trust among trade partners. One-sided activity, on the other hand, is harmful, as is breaching international accords. When the UK violates the Protocol, infringement processes must be initiated.


What infringements?

Article 12(4) of the Protocol and Article 258 of the EU Treaty establish formal processes for rule-breaking.


Agri-food infringements from 2021 revisited

First and foremost, the EU Commission will issue a Reasoned Opinion for the March 15, 2021 infringement. This action was initiated because the United Kingdom did not adhere to the Protocol's agri-food certification criteria. Last year, the UK and EU put this escalation on hold in order to find a solution for Northern Ireland, but they were unable. The unilateral NI Bill passed this week goes against the spirit of collaboration. Furthermore, the EU bemoans the UK's failure to undertake real talks since February.


Two more infringement procedures

The EU has initiated two new procedures against the United Kingdom for:

  • Disobeying EU SPS legislation: The United Kingdom lacks manpower and equipment in Northern Ireland. It is illegal under EU law.

  • Refusing to submit appropriate trade statistics from Northern Ireland to the EU.

Britain must determine whether to retaliate and how to respond within two months.


Court

The EU Commission may take the matter to the EU Court of Justice if the UK doesn't respond within two months. Article 12(4) of the Protocol provides the Court of Justice with all the Treaty's powers, including the right to impose a fine or lump amount. But would the UK even consider what an EU Court had to say? Would the UK even pay? We doubt it.


More details on easement - EU style

The Commission also provides further details on measures it suggested in October 2021 to ease goods movement between Great Britain and Northern Ireland.


There are new documents that explain how to make goods movement between Britain and Northern Ireland simpler.


The EU Commission urges the UK to adopt these ideas - we think this is basically a "take it or leave it" situation. If the UK does not accept, the EU-UK TCA may be at risk.


Two new clarification papers on easements

The EU Commission outlined, in October 2021, possible customs and SPS modifications that may be implemented within the scope of the Withdrawal Agreement without changing it. That would make it easier for goods to move between the United Kingdom and Northern Ireland. These regulations also control good's access to the EU's Single Market. The Commission considers that these ideas will help with customs and SPS issues that NI currently experiences.


Now the EU has added beef to the bone and provided more detail on how it will work:


Customs Paper

NI Protocol - EU Customs Paper
.pdf
Download PDF • 498KB

SPS Paper

NI Protocol - EU SPS Paper
.pdf
Download PDF • 511KB

In a nutshell, both can be summarised like this:

Download this:

Factsheet NI Protocol
.pdf
Download PDF • 303KB

Flexibility


The EU point to a large degree of flexibility in the application of the Protocol. They list several examples:

NI Protocol - Flexabilities
.pdf
Download PDF • 988KB

Benefits

The EU also points to the benefits of the NI protocol and has concrete examples, too.


The Benefits of the NI Protocol
.pdf
Download PDF • 373KB

The Benefits of the NI Protocol - Examples
.pdf
Download PDF • 820KB

Takeaway


It is apparent that the EU and the UK are now at odds - again. Nobody wants to hear what the other person has to say, and the signals point to more conflict than a partnership.


As politics fails, companies and individuals must step forward and demonstrate how good and crucial the EU-UK relationship is every day and everywhere. We place such a high importance on our EU and UK friends and partners that we will not allow politics to ruin them. Whatever the case may be.


So, let them haggle, blister, and yell; we'll have a wonderful cup of tea with scones at 4 p.m. anyhow while listening to Beethoven's 9th Symphony's "Ode to Joy".


And if you want less harmony, how about we re-watch the British-Irish film "Bloody Sunday." just to remind ourselves what is at stake here. We already have one war in Europe. Do we want another one?

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