LONDON — Boris Johnson has made up his mind on Brexit. Does Brussels have the legal firepower to make him think again?
After presenting the controversial Northern Ireland Protocol Bill to the British Parliament on Monday, Britain is about to be dragged into a long and messy legal maze.
Brussels has two legal tools it hopes could bring the UK back into compliance: the infringement procedure used by the European Commission against errant EU member states and the built-in dispute settlement mechanism to the Brexit divorce bill.
The Commission is expected to announce some form of legal action against the UK as early as Wednesday morning. He will also publish a series of articles insisting that the EU’s proposed solution to the protocol – first raised last October but rejected out of hand by Downing Street – remains viable.
“The idea is to counter the British argument that they had no choice but to legislate,” an EU official said.
Brussels must decide whether to launch a new legal action against Britain, or simply unblock an existing legal action launched – but then halted – last year over Britain’s unilateral extension of deadlines for grace in Northern Ireland.
New prosecutions could focus on the UK’s refusal to carry out food safety checks at Northern Ireland ports on goods entering from Britain, and an alleged breach of legal duty both sides to act “in good faith”, an EU official said.
Option 1: Infringement action
The infringement procedure aims to induce a member country to return to compliance with EU rules. But with Britain no longer part of the bloc, there is little hope in Brussels that this route will work.
The EU nevertheless wants to give the impression of having exhausted all possible avenues before any further escalation. Pursuing this formal legal action offers Brussels some protection against potential lawsuits from companies angry at the non-enforcement of the rules.
“We have to protect our position,” an EU official said. “If there is a serious problem, we can be held responsible.”
Infringement proceedings would require months of formal talks and deliberations, leaving any prospect of further escalation on the EU side – likely some form of trade retaliation – until 2023 at the earliest. Some in Brussels see a benefit in a delay, believing that the current political turmoil in Britain could ultimately lead to a change of leader.
At the end of the infringement procedure, Brussels could seize the Court of Justice of the EU. The CJEU would then have up to 18 months to make its decision, with EU officials confident the court would find Britain in breach of its obligations.
Option 2: Dispute Resolution Mechanism
This second legal avenue has been written into the Brexit Divorce Bill to help both parties iron out any differences over their interpretation of the agreed rules.
Brussels has already triggered the mechanism twice since Britain left the EU, during the presentation of Britain’s Internal Market Bill – which allowed ministers to opt out of parts of the protocol – and after Britain’s unilateral extension of grace periods to avoid implementing full checks at Northern Irish ports. .
The mechanism would offer both sides the chance to take the dispute to the EU-UK Joint Committee, a body set up to oversee the implementation of the Brexit divorce deal.
If after three months of discussion there was still no agreed solution, either side could request the creation of an arbitration panel, made up of five members chosen from lists of candidates already drawn by the United Kingdom. and the EU.
The group will agree on a way out of the impasse and notify its decision to the EU and Britain within six to 12 months.
Under the Brexit divorce deal, the panel’s decision would be binding on both parties. If Britain refuses to comply, the Commission could shelve parts of the trade and co-operation deal, or go nuclear and suspend it altogether – opening the door to tariffs against Britain. United
Beyond the courts
The UK government could, of course, simply ignore EU legal action if its Northern Ireland Protocol Bill becomes law – but that wouldn’t help it avoid a trade war later on. .
The bill would give UK ministers the power to override – at least in domestic law – the provisions of the Brexit divorce agreement regulating the two possible avenues of legal action, giving London the freedom to waive any pesky opinions from the arbitration panel or the CJEU.
But then the Commission would feel empowered to hit UK exports with draconian tariffs and freeze cooperation with the UK in other areas – and it has no shortage of ideas. Access to financial and technology markets, agreements on data flows and even agreements on crime and security could be suspended.
Britain’s big bet is that the EU would never take such a damaging step, with citizens on both sides already struggling with soaring living costs and crucial European unity in the face of aggression Russian in Ukraine.
The EU, however, is already discussing how to simplify the requirements the Commission must meet in order to retaliate. But the EU official insisted that Brussels had not yet started defining which British products could be targeted.
“We never wanted to act like [Donald] Trump,” they said, referring to the former US president’s retaliatory tariffs on UK steel and aluminum exports.