The European Commission yesterday launched legal action against the U.K. after British Prime Minister Boris Johnson’s government tabled a bill that would undo major agreements the U.K. committed to as part of the Brexit divorce deal it signed with the European Union. The latest escalation in the dispute between London and Brussels could lead to a full cancelation of the EU-U.K. free trade deal, opening the door to the dreaded “no-deal Brexit” that the trade agreement was intended to avoid.
The EU’s legal challenge comes in response to unilateral moves by the U.K to rewrite parts of the Northern Ireland protocol in the post-Brexit deal signed by the two sides. The protocol was a compromise to the dilemma presented by the particular form of “hard Brexit” favored by hardline lawmakers in Johnson’s ruling Conservative Party after the outcome of the 2016 Brexit referendum. Those lawmakers wanted to leave not only the EU’s political structure, but the European single market and customs union as well—shunning models adopted by EU nonmember neighbors like Norway and Turkey.
This “hard Brexit” withdrawal without any access to the EU’s institutions, single market and customs union requires the creation of a customs border between the EU and the U.K. The problem is that their land border lies between Ireland and Northern Ireland, a sensitive area that was the scene of decades of violent conflict over its relationship to London and Dublin. The 1998 Good Friday Agreement, guaranteed by Britain, the Republic of Ireland, the EU and the U.S., ended the conflict by creating an open border between north and south. When the U.K. voted to leave the EU in 2016 and the government decided to pursue a hard Brexit, Brussels—at Dublin’s urging—announced it would not begin negotiations for a divorce deal until London could create an arrangement for customs checks that would not erect a hard border across the island of Ireland.
One solution floated during negotiations between London and Brussels
was to make Northern Ireland a halfway house, a part of both the EU customs area and the U.K. But then-Prime Minister Theresa May shot down the proposal because it would require customs checks between Northern Ireland and the rest of the U.K. She countered with a “backstop” solution that would put the U.K.—including Northern Ireland—in the customs area for a limited amount of time until a long-term solution could be devised.
Johnson led the movement in parliament to reject May’s proposal. He was eventually successful in toppling her as prime minister, later going on to win election by doing what she refused to: agreeing to a Northern Ireland Protocol that puts Northern Ireland inside the EU customs area and, by consequence, the customs border between the U.K. and the EU in the sea between Great Britain and Northern Ireland.
There were always signs that Johnson either didn’t understand the terms of the divorce deal he had just signed or, more likely, simply had no intention of ever honoring it. In 2019, for instance, he
told a group of business leaders in Belfast that they wouldn’t have to fill out any customs paperwork for goods crossing into and from Britain, though they clearly do. For its part, the EU chose to ignore the signs that Johnson intended to renege on the divorce deal agreed at the end of 2019, spending a year negotiating the free trade deal that was finally agreed in December 2020 and came into effect at the start of 2021.
Johnson now argues that the protocol isn’t working, even though the U.K. has yet to set up the customs checks required to implement it, in breach of its commitments.
Northern Ireland’s unionist DUP party has refused to form a power-sharing government in Northern Ireland unless the protocol is scrapped, rebuffing an appeal from London to soften its position. Johnson’s government insists that the bill tabled Monday is the only way to restore a government in Northern Ireland. For its part, Dublin argues that there have been multiple government-formation deadlocks over the years in Belfast, but they have all been resolved without breaking international treaties.
“Let’s call a spade a spade: this is illegal,” European Commission Vice President Maros Sefcovic said yesterday. London insists that it is within its right to deviate from the protocol, citing a
“doctrine of necessity” giving countries room to void treaties in times of emergency. But legal experts say this only applies to events like war or famine, and London has not demonstrated that the protocol is causing exceptional hardship. In fact, Northern Ireland’s unique position granting it access to the EU single market is likely a major reason why it now has the
fastest-growing economy in Britain.
The commission yesterday opened two legal challenges to the U.K. for its failure to implement the protocol. But the big trouble could come later, if London doesn’t back down. Sefcovic reiterated what EU diplomats have said all week: If the bill proposed by Johnson becomes law, the EU will terminate parts or even all of the free trade deal it agreed with the U.K. The EU has the right to do so unilaterally as long as it gives London 30 days’ notice. And Brussels would feel justified in taking that step, as it would argue that Johnson signed the Northern Ireland Protocol with no intention of honoring it, meaning that the deal was negotiated and sealed in bad faith and under false pretenses.
In Other News
Macron could be in trouble in Sunday’s parliamentary election. French voters will return to the polls Sunday to cast ballots in the second round of legislative elections. Though French President
Emmanuel Macron secured reelection to a second term in April’s presidential ballot, his
Ensemble coalition finished tied in the first round of parliamentary elections last weekend with the NUPES coalition led by left-wing firebrand Jean-Luc Melenchon.
The prospect of divided government in
France with Melenchon as prime minister is a troubling one for Brussels, given that he is a Euroskeptic who has praised Russian President Vladimir Putin in the past. However, the old adage that French voters “vote
for in the first round and
against in the second round” could prevail here. There is the possibility that a number of centrist voters who voted for center-right or center-left candidates in the first round will pull the lever for Macron’s coalition in the second round to prevent a Melenchon premiership.
The European Commission will give the green light to Ukraine’s candidacy process.
The European Commission is expected tomorrow to give a positive assessment of EU membership status to Ukraine and Moldova, while it will hold off on such a recommendation for Georgia. But the assessment is only a recommendation—candidacy status can only be granted by the unanimous approval of all EU member states. There has been growing speculation that EU leaders might approve Ukraine’s candidacy status at their summit in Brussels next week. Macron was in Kyiv today with German Chancellor Olaf Scholz and Italian Prime Minister Mario Draghi, and during the visit the three leaders announced that they have decided to back Ukraine’s candidacy status.
But there are still many other countries left to convince, making an agreement at next week’s summit still challenging. There is considerable hesitation about Ukraine, as it presents challenges that could dramatically alter the EU’s demographic and geopolitical outlook. As for Moldova, the thinking in Brussels has long been that like the Western Balkan states, it will eventually become part of the EU one way or the other. French President Emmanuel Macron was in Moldova yesterday, where he endorsed the country’s EU membership bid. But it seems inconceivable that EU leaders would grant candidacy status to Moldova and not Ukraine at next week’s summit. It will be both or nothing.
The EU Parliament rejects nuclear and gas as green fuels. The European Parliament’s environment and economy committees this
week rejected a carefully crafted compromise proposal that would include nuclear and gas in a list of energy sources eligible for green investment funds from the EU. The text is the result of a compromise between a coalition of anti-nuclear members led by Germany on one side and another bloc of anti-gas members led by France on the other, but its wording predates the outbreak of war in Ukraine.
The text will now go to the full parliament for a vote scheduled for next month
and MEPs there are expected to follow the committees’ lead, as it would be regarded as politically unpalatable to deem gas a green fuel given the current energy context. But for this type of legislation, the parliament can only accept or reject the proposed text in an up-or-down vote—it cannot amend it. This means that gas cannot simply be removed from the list while leaving the rest of it intact. Instead, the entire list must be sent back to the drawing board, which will mean further delay for a vital component of the European Green Deal.
Dave Keating is an American-European journalist who has been based in Brussels for 12 years. Originally from the New York City area, Dave has in the past covered the halls of the U.S. Congress in Washington, courtrooms of Chicago, boardrooms of London, cafe of Paris and the climate campaigns of Berlin.
