UK in Breach of International Law Again

What just happened?  

The UK have once again made headlines for an alleged breach of international law as they unilaterally extended the Northern Ireland grace period without informing the EU.[1] 

What does this mean?

The Northern Ireland Protocol has been problematic throughout Brexit. Its intention is to avoid a hard border between Northern Ireland and the Republic of Ireland. This is achieved by maintaining the integrity of the EUs singe market in Northern Ireland for goods whilst ensuring that their goods continue to reach the UKs market. Northern Ireland goods are also to be included in free trade agreements between the UK and third countries.[2] 

As a part of the withdrawal agreement, the UK were able to operate under a grace period, meaning that the procedures and cheques required on UK products entering Northern Ireland did not fully apply. This was to enable UK companies sufficient time to adjust to the new trading agreements.

This grace period was sent to conclude in March, however the UK government has made headlines for unilaterally extending the grace period to October 2021, a move that the European Commission has declared as a breach of international law.

How does it impact the law?

Not only has the European Commission accused the UK of seeking to break international law and condemned the action, but, the European Parliament have also confirmed that they will not provide a date to ratify the EU-UK Brexit deal.[3]

Following the UK Governments announcement, the EU’s chief Brexit negotiator, Maroš Šefčovič, has threatened legal action telling the Financial Times that “infringement proceedings are being prepared.”[4] 

Article 258 TFEU infringement procedure governs the process of initiating infringement proceedings. Under the article the CJEU has jurisdiction during the transition process specifically in relation to the interpretation and application of the withdrawal act.  Should, the EU look to go initiate the infringement process, they first have to provide a reasoned opinion to the UK. If the UK fail to respond to the EU, the matter is referred onto the CJEU who make a decision concerning to the alleged breach. If they rule in the EUs favour the UK have to take the necessary steps to comply with the findings of the CJEU. [5] It remains to be seen whether the EU will have to take this matter to the ECJEU, as previously when a disagreement regarding the Northern Ireland Protocol arose, the matter was resolved without resorting to the CJEU.[6]

Conversely, the leader of the LCC in a letter to the government argued that the UK should trigger Articles 16 of the protocol, which is intended to be used when the arrangement is unexpectedly leading to serious "economic, societal or environmental difficulties". [7] However, Article 16 does not allow a country to unilaterally change an element of the protocol without any discussion and it has been argued that political rhetoric has created the impression that article 16 brings a swift resolution to an issue but this is not the case. Instead, as per Annex 7 of the Protocol each party considering the use of Article 16 must notify the other ‘without delay’. Both the EU and UK will then enter talks through the Joint Committee in an attempt to reach a common agreement. Further, safeguard measures cannot be enacted until a month after the talks.[8] Therefore, it is not feasible to suggest that the Article can be used to support the governments unilateral extension of the grace period.

It remains to be seen whether the EU will have to revert to the CJEU in relation to this latest breach, or, whether the EU and UK can come to a common agreement. One thing is for sure, this latest breach by the UK has further damaged their international reputation with the Irish Government declaring that the UK has shown itself to be untrustworthy over the protocol.[9]

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[1] John Campbell, ‘Brexit: EU legal action imminent over UK extension to grace periods’ (BBC News, 5 March 2021) <www.bbc.co.uk/news/uk-northern-ireland-56285874> accessed 7 March 2021

[2] Northern Ireland direct Government Services ‘EU exit and the Northern Ireland Protocol’ (Northern Ireland direct Government services) <www.nidirect.gov.uk/articles/eu-exit-and-northern-ireland-protocol> accessed 7 March 2021

[3] Greg Heffer, ‘Brexit European Parliament declines to fix date of EU-UK trade  deal vote amid new row over Norther Ireland Protocol’ (Sky News, 4 March 2) <https://news.sky.com/story/loyalist-groups-withdraw-support-for-good-friday-agreement-over-brexit-bo

[4] Ibid (n 1)

[5] Simmons and Simmons, ‘Brexit update: EU-UK infringement proceedings’ (Simmons and Simmons, 7 October 2020) <www.simmons-simmons.com/en/publications/ckfz5t75che9e09462ryksfrf/brexit-update-eu-uk-infringement-proceedings> accessed 7 March 2021

[6] Charlie Cooper, ‘UK to drop plan to breach international law’ (Politico, 8 December 2020) <www.politico.eu/article/uk-to-drop-planned-laws-that-would-breach-international-law/> accessed 7 March 2021

[7] Ibid (n 3)

[8] Dr Clare Rice, ‘Article 16 of the Northern Ireland Protocol’ (UK in a changing Europe, 8 February 2021) < https://ukandeu.ac.uk/explainers/article-16-of-the-northern-ireland-protocol/> accessed 7 March 2021

[9] Ibid (n 3)