On Wednesday 15 June 2022, the European Commission launched infringement proceedings against the United Kingdom (UK) for not complying with significant parts of the Ireland / Northern Ireland Protocol.

The Commission clarified that despite repeated calls on the UK government to implement the Protocol, it has failed to do so, and according to the Commission, this is a clear breach of international law.

The Commission noted that the aim of these infringement proceedings is to restore compliance with the Protocol in a number of key areas where the UK hasn't been implementing it properly – ultimately with the goal of protecting the health and safety of European Union citizens.

At the same time, the Commission is providing additional details on the possible solutions it put forward in October 2021 to facilitate the movement of goods between Great Britain and Northern Ireland. The position papers published on Wednesday explain how the movement of goods between Great Britain and Northern Ireland can be significantly facilitated.

The Commission called on the UK government to engage seriously and constructively with these suggested solutions. The Commission will continue to proceed in close collaboration and constant dialogue with the European Parliament and Council.

European Commission Vice-President, Maroš Šefčovič, said: “Trust is built by adhering to international obligations. Acting unilaterally is not constructive. Violating international agreements is not acceptable. The UK is not respecting the Protocol. That is why we are launching these infringement proceedings today. The EU and the UK must work together to address the practical problems that the Protocol creates in Northern Ireland due to Brexit. I am still convinced that with genuine political will to make the Protocol work, we can reach our objectives. I call on my UK counterparts to engage in good faith and explore the full potential of the solutions we have put forward. Only joint solutions will create the legal certainty that people and businesses in Northern Ireland deserve.”

Infringements

First, the Commission has decided to take the infringement launched on 15 March 2021 to its second stage by issuing a Reasoned Opinion. This infringement proceeding was launched as a result of the UK failing to properly implement the Protocol, notably regarding the certification requirements for the movement of agri-food. It had been put on hold last year in a spirit of constructive cooperation to create the space to look for joint solutions with the UK. However, the UK's unwillingness to engage in meaningful discussion since February – and this week's unilateral action – goes directly against this spirit.

If the UK government does not reply within two months, the Commission will consider taking the UK to the Court of Justice of the European Union. Under Article 12(4) of the Protocol, the Court of Justice has full powers provided for under the Treaties, including the possibility to impose a lump sum or penalty payment.

Secondly, the Commission has also decided to launch two new infringement proceedings against the UK for:

  • Failing to carry out its obligations under the EU's sanitary and phytosanitary (SPS) rules. In particular, the UK is not carrying out the necessary controls, and is failing to ensure adequate staffing and infrastructure, at Border Control Posts in Northern Ireland. It has also issued guidance that has the effect of disapplying EU law.
  • Failing to provide the EU with certain trade statistics data in respect of Northern Ireland, as required under the Protocol.

This marks the beginning of formal infringement processes, as set out in Article 12(4) of the Protocol, in conjunction with Article 258 of the Treaty on the Functioning of the EU. Wednesday's letters request the UK to take swift remedial actions to restore compliance with the terms of the Protocol.

The Commission stands ready to take further measures.

Further details to implement arrangements to facilitate the movement of goods between Great Britain and Northern Ireland

The Commission's overarching objective remains that of finding joint solutions with the UK within the framework of the Protocol, and to ensure legal certainty and predictability for people and businesses in Northern Ireland.

In two position papers, the Commission has fleshed out the arrangements it put forward in October 2021 in the area of customs and sanitary and phytosanitary (SPS) rules. The aim of publishing these texts is to show that solutions can be found within the Protocol. The Commission remains ready to explore these solutions with the UK government.

As outlined in October 2021, the EU is presenting a simplified model for the implementation of the Protocol, in which the flow of goods between Great Britain and Northern Ireland - in respect of goods destined to stay in Northern Ireland - is facilitated to a significant extent. This facilitation is enabled by a series of safeguards to ensure the goods do not move into the EU's Single Market.

The Commission believes that these suggestions open the way to a resolution of customs and SPS-related implementation issues.