Removing ECJ oversight role in protocol ‘out of the question’, EU warns

The Government wants to radically redraw the governance arrangements contained within the Northern Ireland Protocol.

15 June 2022

Stripping the European Court of Justice of its oversight role in the Northern Ireland Protocol is “out of the question”, an EU official has warned.

The proposal is included in the contentious UK Government Bill empowering ministers with the ability to scrap the bulk of the protocol.

The UK wants to tear up the existing governance arrangements, removing the ECJ as the final arbiter in protocol-related trade disputes and replacing it with an independent international arbitration mechanism.

While it still envisages a reference procedure whereby the ECJ would retain a role for issues specific to EU law, Prime Minister Boris Johnson wants UK courts to oversee the operation of the protocol regime within Northern Ireland.

Foreign Secretary Liz Truss wants to remove the ECJ’s oversight role in the operation of the NI Protocol (Niall Carson/PA)

The EU official said it would be impossible to remove the ECJ’s role, as it was the only court with competency to deal with single market rules that apply in Northern Ireland.

“The effect of the protocol is to say that EU rules related to the single market for goods apply in Northern Ireland and it just takes that body of law and says it applies in the United Kingdom, in respect of Northern Ireland,” said the official.

“And the only court which is competent to rule on the interpretation of those laws, for the benefit of operators in the EU as well as in Northern Ireland, is the Court of Justice.

“And so removing the role of the Court of Justice is out of the question.

“And, in fact, it would be found illegal by the court itself, so it is kind of pointless to try.”

On Wednesday, the EU announced infringement proceedings against the UK for a series of alleged violations of the protocol.

The cases would ultimately be adjudicated on by the ECJ if they are not resolved beforehand.

In respect of those actions, European Commission vice-president Maros Sefcovic warned Mr Johnson against ignoring any rulings delivered by the court.

“Not respecting the European Court of Justice rulings would be just piling one breach of international law upon another,” he said.

European Commission vice-president Maros Sefcovic warned the UK against ignoring ECJ rulings (PA)

He questioned whether that would be “compatible with the proud British traditions of upholding and respecting the rule of law”.

Earlier in the week, Mr Sefcovic also warned that Northern Ireland’s unfettered access to the single market – which is a key provision of the protocol – would be threatened if the UK proceeds with its plan to scrap the Irish Sea trading arrangements.

The EU official restated that prospect on Wednesday.

“The whole point of the protocol is to avoid a hard border on the island of Ireland and of course it becomes a real difficulty if one party unilaterally disapplies all but three provisions of that protocol.

“And that’s why in the statement that he made on Monday, the vice-president said that the UK Government’s approach puts Northern Ireland’s access to the single market for goods and the related opportunities at risk.”

The official claimed many of the issues raised by the UK were “ideological” and did not actually present practical difficulties on the ground.

“By raising issues related to VAT, issues related to state aid issues, related to the Court of Justice, it’s actually the UK Government which is being ideological and raising problems that don’t actually exist,” said the official.

“We should really focus on the core east/west trade issues.”

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