Thread by @tconnellyRTE

The European Commission has formally taken legal action against the UK for what it describes as a “deliberate” breach of international law over its unilateral action on the Northern Ireland Protocol.

2/ In a strongly worded letter to @DavidGHFrost Commission vice-president @MarosSefcovic accused London of unilaterally departing from the rules of the Protocol, and of not implementing the measures agreed by both sides.

3/ Šefčovic said: “The UK has resorted to this unilateral action without any discussion or consultation with the EU side in the bodies established by the [Withdrawal] Agreement.

4/ “It has therefore acted in breach of the mutual trust and spirit of cooperation that we managed to rebuild in the last months of 2020, after the uncertainty created by the UK Internal Market Bill.

5/ “The recent measures once again set the UK on a path of a deliberate breach of its international law obligations + the duty of good faith that should prevail in the application of international agreements pursuant to Article 26 of the Vienna Convention on the Law of Treaties.”

6/ The Commission said the moves announced by the NI Secretary on March 3 were “the second time in the space of six months that the UK government is set to breach international law.”

7/ Mr Šefčovic’s “political” letter to his UK opposite number is one of two legal moves by the European Commission, the second being a letter of formal notice which triggers an “infringement” procedure against the UK.

8/ That letter is more specifically a charge that the UK is in breach of EU law by not complying with the checks and controls contained within the Protocol.

9/ An EU official said the reality of checks and controls on some goods moving from Great Britain to Northern Ireland was “crystal clear” to the UK when it negotiated the Protocol in September and October 2019.

10/ “The UK government and the then chief negotiator [David Frost], who is now Minister of state, made a choice in Sept 2019,” said the official. “Then there was a renegotiation of the WA based on the premise that there would be checks on some goods moving east west, from GB-NI

11/ “That was really crystal clear to all sides and it was the working assumption of the talks at the time,” said the official.

EU sources said the facts and the UK’s actions had shown that it was not implementing the Protocol in full, as it had promised.

12/ The UK had chosen not to extend the 11 month transition period, which was there “specifically to enable everybody to understand the consequences of the new arrangements and the new reality.”

13/ An EU official said the UK had been clear that the grace periods, agreed with the EU in December, were “sufficient” to allow all operators to be ready to apply the Protocol by April 1.

14/ “The EU looked at these requests, understood and discussed the conditions that would accompany those requests, showed understanding and flexibility, and accepted that in practice more time was needed, and so these grace periods could in fact apply,” said the official

15/ The official said that in return for the grace periods the UK would provide a road map, or “a clear understanding of when and how we would get a pathway towards a full implementation of the Protocol.”

16/ The official added: “This is something we have not received. In other words we have not received the UK roadmap explaining what it would do in practice in order for the Protocol to be applied in full.”

17/ On March 3 Brandon Lewis said the UK wd extend one of the mutually agreed grace periods from April 1 till Oct 1, meaning suppliers cd continue sending products of animal origin, composite products, food + feed of non-animal origin, plants etc without official EU certification

18/ In his letter to David Frost, Maroš Šefčovič said the UK had taken this decision “without any discussion or consultation with the EU side.”

19/ Furthermore, the UK had also taken action on the movement of pets and express parcels from GB-NI which amounted to the “unilateral disapplication” of the Protocol.

20/ These latter moves had not been the subject of discussion between the EU and UK, the letter states. British sources have said the UK will respond to the two letters.

21/ However, they insist that the UK has not disavowed the Protocol and still intends to implement it. Sources say the UK move was designed to ensure that supermarket shelves would not be empty on April 1, when the first grace period ended.

22/ The Commission has given London one month to respond to the letter of formal notice. If there is no response, Brussels cd issue a “reasoned opinion”, which in turn could be a precursor to a case being taken to the European Court of Justice, which could impose fines.

23/ In his letter, Maroš Šefčovič demanded “swift remedial action” by the UK in order to comply with the Protocol, asking Mr Frost that the UK “recitify and refrain from putting into practice” the unilateral moves announced on March 3.

24/ In its statement, the Commission said that if the UK failed 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 would trigger the dispute settlement procedure in the WA.

25/ If the UK failed to comply with arbitration on the matter, it could result in fines, or in the EU imposing tariffs on UK goods, the statement concluded