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Vulcan Insight | Déjà vu as the UK again intends to break Brexit Agreement

With just hours to spare before the European Parliament was set to decide its schedule on ratifying the post-Brexit agreement, the UK Government’s announcement that it would temporarily, but unilaterally, change the rules for trade into Northern Ireland caused indignation across Brussels and national capitals.

In a way, it is a stunning repeat of the controversy around the UK Government’s September proposal to “break international law in a specific and limited way” through its Internal Market Bill.

This latest dispute between the European Commission and London comes after weeks of Northern Irish unionists and Brexiteers calling on the Government to renegotiate or drop the Northern Ireland protocol after its real-life impact on traders had become apparent following the UK’s full departure from the EU on 1 January.

Under the Northern Ireland protocol of the post-Brexit Trade and Cooperation Agreement (TCA), the EU and the UK Government agreed on a 3-month grace period during which UK traders would not have to abide by the EU’s requirement for full checks and certifications for imports from Great Britain into Northern Ireland. Under the TCA, Northern Ireland, technically, remains part of the EU’s Customs Union and Single Market.

With the deadline set to expire at the end of the month, and domestic calls for the UK Government to take strong action on reversing any obstacles to trade between Great Britain and Northern Ireland, the Government’s new point person for all post-Brexit issues, former chief negotiator David Frost, and Secretary of State for Northern Ireland, Brandan Lewis, announced on Wednesday that it would unilaterally extend the grace period.

Under the measure, until 1 October parcels and agri-food products would be able to enter Northern Ireland from Great Britain without the need for EU export health or full customs certificates as well as related health and sanitary checks.

The announcement surprised the European Commission, Parliament and Member States as, according to Irish Foreign Minister Simon Coveney, any extension to the grace period had already been under discussion as part of the post-Brexit EU-UK Joint Committee.

According to Mr. Coveney, in unilaterally proposing to circumvent and breach the Northern Ireland protocol (again), the UK’s decision, however, “clearly undermines its commitments” made in the Withdrawal Agreement and TCA. The sentiment was echoed by European Commission Vice-President Maroš Šefčovič, who also added that “this is the second time that the UK Government is set to breach international law.”

As was the case in response to the Internal Market Bill, it now looks like the European Commission is set to take legal action against the UK Government, although it is not yet clear which form this would take. As with the UK Internal Market Bill, the Commission could launch an infringement proceeding under the Northern Ireland protocol, or the dispute settlement mechanism under EU-UK Withdrawal Agreement, which could eventually allow the EU to impose punitive tariffs against UK goods.

Considering the ongoing uncertainties, the European Parliament’s Conference of Presidents decided on Thursday that it would postpone its decision on how to organise the remainder of its ratification process. Following UK Cabinet Secretary Michael Gove’s approval last week, the chamber has until 1 April to formally ratify the TCA. It may now be tabled for a plenary vote either at the next mini-plenary (24-25 March) or full plenary on 26-29 April.

Compliments of Vulcan Consulting – a member of the EACCNY.