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Raise your hand if you are done with Brexit! However, now more than ever, it is necessary to talk about it once again, as the endless divorce between the UK and the European Union is full of unexpected turns. On 15th March 2021, Lord Frost – Chief Negotiator of Task Force Europe since January 2020 – received some unpromising news from Maroš Šefčovič – Vice-President of the European Commission for Inter-institutional Relations and Foresight. It seemed as though the Brexit deal had finally been settled on 31st December 2020, so what triggered the latest events? Mr. Šefčovič has expressed the EU’s strong concerns over the UK’s unilateral action, which constitutes a violation of the relevant provisions of the Protocol on Ireland/Northern Ireland as well as the good faith and fair dealing under the Withdrawal Agreement.
Before delving into a deeper analysis of the British unilateral action it is necessary to outline the EU structure properly since it is certainly complex, yet extremely related to the current scenarios. The EU has a strong bond with the rule of law, as all its decisions are based on binding agreements, democratically approved by member states. The Fathers of the European Union came from different backgrounds, but they had some common ideals: peace, unity and prosperity. In 1951, the European Coal and Steel Community (ECSC) was created. Besides, the European Economic Community (EEC) – considered as the origin of the common market – and the EURATOM in 1957. The founding States were six: Belgium, France, Germany, Italy, Luxembourg and the Netherlands.
And what about the UK? At that time, the British Empire and its economy were in serious trouble. Thus, many intellectuals started to think that the UK had missed a crucial appointment by not joining the EEC. Therefore, the Conservative government headed by Prime Minister H. Macmillan tried to join the European Economic Community later on. Its ambition, however, was thwarted by French President Charles de Gaulle, which renewed his opposition in 1967. De Gaulle’s motivations were based on his personal experience: he spent part of World War II in London, where he had the chance to perceive a profound hostility by the British government on matters related to European integration. That said, it is easy to understand why Britain joined the EEC only in 1973 when de Gaulle left the scene. It is curious, however, to realize how persistent the British desire to join the ECC was and how it suddenly vanished in recent times…
What a long divorce!
As most people know, on 23rd June 2016, the Brits chose to leave the European Union. Nine months later – on 29th March 2017 – former British Prime Minister Theresa May formally initiated the so-called Brexit by activating Article 50 of the Treaty on European Union (TEU). The beginning of the two-year withdrawal journey was followed by these words: “We regret the United Kingdom exit from the European Union, but we are ready for the procedure that we will have to follow.” But you know, verba movent, exempla trahunt: subsequent events have shown anything but readiness! The UK was supposed to leave the EU on 29th March 2019, yet several extensions were asked. The United Kingdom officially (and finally) left the European Union on 31st January 2020, after being part of it for 47 years. “Is his true fame? Posterity/the arduous verdict will declare” (A. Manzoni, The Fifth of May).
The UK has lost all the rights and benefits it enjoyed as a EU member State, and is no longer part of the single market, nor involved in the European international agreements. Four treaties are currently binding the two parties: the first one is the EU-UK Withdrawal Agreement, adopted under Article 218 TFEU and entered into force on February 1st, 2020. It regulates the Brexit process, ensuring the respect of financial interests and rights on both sides. It also contains a specific Protocol dedicated to peace and stability on the island of Ireland. Furthermore, on 1st January 2021, another three treaties came into force: a free trade agreement; an information security agreement and a cooperation agreement for the safe and peaceful use of nuclear energy.
The Irish issues and Maroš Šefčovič’s reaction
Keeping in mind what said so far, what caused Maroš Šefčovič’s harsh reaction? It was triggered by UK’s behaviour, which unilaterally extended some transitional measures under the Protocol related to Northern Ireland. To understand Mr Johnson’s choice it is necessary to make an historical premise: the so-called Good Friday Agreement was signed in Belfast on April 10th, 1998. It constitutes a milestone for peace in Northern Ireland, since it ended the conflict between unionists (loyal to the Crown) and republicans. This region was affected by a series of scuffles and attacks in the late 1960s. After all, how can we forget Sunday Bloody Sunday by U2?
During the recent Brexit negotiations, both sides agreed that protecting the Northern Ireland peace deal was an absolute priority. For this reason, the introduction of the aforementioned Protocol was crucial since the EU requires certain products to be inspected at the point of entry into its single market. After Brexit, Northern Ireland continues to follow many EU rules, in particular the ones governing the trade in goods, meaning lorries can drive across the land border without being inspected. However, there is a new “regulatory” border – so, controls on goods – between Northern Ireland and Great Britain, as the UK no longer follows the European rules. These inspections take place at Northern Ireland ports and customs documents have to be filled in. Unionist conservatives, among which the British foreign secretary – Dominic Raab – have criticised these controls since they see them as a threat to UK territorial integrity and as a colonising aggression by Brussels.
Through the Protocol, supermarkets were given an initial three-month grace period, during which the rules were not to be enforced on food brought into Northern Ireland. Some meat products, like sausages, were given a longer grace period (six months). The purpose was to give them the needed time to adapt to this post-Brexit situation. Northern Ireland businesses, however, have always claimed these periods were too brief. With time running short before they expire, the UK made a unilateral decision on 3rd March to extend them until October. Thus, Maroš Šefčovič sent a letter formal notice to Lord Frost stating as follows: “The Protocol on Ireland and Northern Ireland is the only way to protect the Good Friday 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. […] That is why we are launching legal actions today.”
The UK has been given one month to submit its observations to the letter of formal notice. After examining these observations, or if no observations have been submitted, the Commission may decide to issue a Reasoned Opinion. Secondly, if the UK fails to enter into consultations in the Joint Committee in good faith, the EU may provide written notice to commence consultations, as a first step in the Dispute Settlement Mechanism process. This may ultimately also result in the imposition of financial sanctions by the arbitration panel. In case of non-payment or persisting non-compliance, the EU could suspend its obligations under the Withdrawal Agreement (e.g. by imposing tariffs on imports of goods from the UK). Anyway, as recalled by the Guardian, “Mr Johnson […] underestimates the damage that is done to Britain’s global reputation and the threat to the stability of Northern Ireland. Mr Johnson […] must now step up to the responsibility that his office demands, and treat the Northern Ireland Protocol as an object of international law, not a political game.“
And who knows, maybe de Gaulle was not that wrong… And maybe the time of a border poll in Northern Ireland has come. Should we expect a reunification with the Republic of Ireland? Time will tell.