EU sends UK “letter of formal notice” for breach of Northern Ireland protocol obligations

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The European Commission has sent a letter of formal notice to the UK for breaching the substantive provisions of the Protocol on Ireland and Northern Ireland, as well as the good faith obligation under the Withdrawal Agreement.

In a statement, the European Commission said the letter “marked the beginning of a formal infringement process against the United Kingdom.”

It added that the announcement regarding the unilateral extension of grace periods for Irish Sea border checks was the second time in six months that the UK Government had been set to breach international law.

Commenting on the decision to begin a formal infringement process against the UK, Vice-President Maroš Šefčovič, the EU’s co-chair of the Joint Committee, said:

The Protocol on Ireland and Northern Ireland is the only way to protect the Good Friday (Belfast) Agreement and to preserve peace and stability, while avoiding a hard border on the island of Ireland and maintaining the integrity of the EU single market. The EU and the UK agreed the Protocol together. We are also bound to implement it together. Unilateral decisions and international law violations by the UK defeat its very purpose and undermine trust between us. The UK must properly implement it if we are to achieve our objectives. That is why we are launching legal action today. I do hope that through the collaborative, pragmatic and constructive spirit that has prevailed in our work so far on implementing the Withdrawal Agreement, we can solve these issues in the Joint Committee without recourse to further legal means.

The Commission has said it will now respond in two ways:

First, the Commission has sent the UK a Letter Formal Notice for breaches of substantive provisions of EU law concerning the movement of goods and pet travel made applicable by virtue of the Protocol on Ireland and Northern Ireland. The letter requests the UK to carry out “swift remedial actions to restore compliance with the terms of the Protocol.” The UK has one month to reply to the letter.

Secondly, Vice-President Maroš Šefčovič has sent a “political letter” to David Frost, the UK’s co-chair of the Joint Committee, which calls on the UK Government to “rectify and refrain from putting into practice the statements and guidance published on 3 March and 4 March 2021.”

The EU Commission argues the unilateral measures are a violation of the duty of good faith under Article 5 of the Withdrawal Agreement. In addition, the letter also calls on the UK “to enter into bilateral consultations in the Joint Committee in good faith, with the aim of reaching a mutually agreed solution by the end of this month.”

Should no progress be made in the next month, the Commission says it may decide to issue a “Reasoned Opinion”. It adds that under Article 12(4) of the Protocol, the Court of Justice of the European Union has full powers to impose a lump sum or penalty payment on the UK.

Moreover, if the UK fails to enter into consultations in the Joint Committee in good faith, with the aim of reaching a mutually agreed solution by the end of this month, the EU says it may provide written notice to commence consultations under Article 169 of the Withdrawal Agreement.

This would represent the first step in the Dispute Settlement Mechanism process set out in Title III of Part Six of the Withdrawal Agreement. If no solution is found, the EU says it could refer the dispute to binding arbitration.

If the EU were to win the legal case, and the UK failed to pay the fine or comply with the court order, the EU says it could suspend its obligations under the Withdrawal Agreement (with the exception of the citizens’ rights part of the agreement) or from the Trade and Cooperation Agreement, in accordance with Article INST.24(4).

The EU could then impose tariffs on imports of goods from the UK if it desired to do so.

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