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Legal action against the UK due to a Brexit breach

After the UK decided to unilaterally delay the introduction of post-Brexit checks on goods travelling on the route Great Britain – Northern Ireland, the European Commission launched a twin-track legal action against the British government. 

There were two separate letters sent explaining the two different tracks for legal proceedings that the EU is willing to take should the dispute not get settled via negotiations in the next few weeks. 

The UK defends its decision, describing it as a “lawful and part of a progressive and good-faith implementation of the Northern Ireland Protocol.”

EU’s twin-track legal action plan

The first letter came as formal notice or the so-called ‘infringement procedure’ and started a process whereby the UK now has a month to respond to the EU to explain or remedy its actions. If the Commission does not find its response satisfactory it can formally request the UK government to change course. If however, the UK decides not to follow the instructions the EU can refer it to the Court of Justice, where, if the case is decided against Britain the Court can enforce the ruling by imposing financial penalties against the UK.  

The second letter was sent directly to David Frost from the Commission’s Vice-President Maroš Šefčovič, calling on him to refrain from putting the extension of the grace period of border checks into practice. By sending this letter, Šefčovič gave the two parties an opportunity to hold mediation talks in their Joint Committee. At the same time, he opened the possibility of launching a dispute settlement procedure under provisions in the Brexit Withdrawal Agreement, which could lead Brussels to impose tariffs on UK goods. 

“It is the second time in the space of six months that the U.K. government is set to breach international law,” says the Commission. And as much as this angers the UK counterpart, Šefčovič hopes that the dispute can be resolved within the Joint Committee without the need for further legal action.

UK’s reasoning for the extension of the grace period

The UK government believes that postponing the introduction of full checks helps to prevent the disruption to trade between Northern Ireland and the rest of the country. 

“We’ve been clear that the measures we have taken are temporary, operational steps intended to minimise disruption in Northern Ireland and protect the everyday lives of the people living there. They are lawful and part of a progressive and good-faith implementation of the Northern Ireland Protocol,” commented the UK government spokesperson. 

Boris Johnson has expressed the need to improve the trade and movement of goods from north to south and east to west. He added: “That’s all we’re trying to sort out with some temporary and technical measures which we think are very sensible. But obviously, we’ll look forward to our discussions with our EU friends and see where we get to.”

What’s next?

The MEPs in Brussels are yet to approve the Brexit deal. Their deadline is the end of April and only then it can fully enter into force. The Commission is now urging them to not delay this any longer and approve the Brexit deal as it could help with any potential legal action under the Withdrawal Agreement. 

“Ultimately the dispute settlement mechanisms under the Withdrawal Agreement allow cross-retaliation via the [trade agreement],” an EU official said, referring to potential suspensions of tariff cuts.

Therefore, the official argued, implementing the trade deal “gives you bigger leverage to ensure that the Withdrawal Agreement is respected.”

Whatever is the outcome of these negotiations, our UKCS team of customs clearance experts is here to help you and your business overcome any hurdles. With the SME Brexit Support Fund open for applications, you can get all the expert advice and support you need. Get in touch with us today!

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