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Suppose the worst happens. Suppose the Brexit negotiations fail, most likely on the issue of the Irish border. Suppose the UK goes to a "no compromise" Brexit. And then, let's assume that the UK government listens to the most intransigent Brexiters and leaves the land border open, or at least introduces minimal protection, challenging Ireland to set up its own border to enforce customs procedures and regulatory inspections. .
The Irish government, with its British counterpart, insisted not to install a rigid border. But the law of the Union suggests that Ireland may not have the choice at some point. Of course, a tough Brexit and an open border would provoke a political crisis in which the EU27 would most likely join and try to engage the UK in urgent talks to find a solution. If that fails, the case may end up in the courts.
The Irish land border is an external border of the EU, so it automatically becomes an EU-wide problem. As such, it falls under the legislation of the World Trade Organization, after the UK has established itself as an independent member of the WTO and is likely negotiating with the United States. EU at the basic conditions of the WTO. To treat a trading partner differently, which could result from an open border, a failure to collect tariffs and other customs procedures, is a flagrant violation of the WTO principle of non-discrimination . The United Kingdom itself will be vulnerable to litigation. That said, it will take years before any WTO case is resolved. The WTO dispute settlement process is currently complicated by the refusal of Donald Trump's administration to appoint new judges.
EU law, and in particular the need to respect the rules of the single market, including the collection of tariffs and the enforcement of regulations, will come much more quickly. An obvious solution would be a customs and regulatory border in the Channel between Ireland and the EU26, but politically it would be a terrible outcome for the Irish government. "Pointing out that the Irish land border is essentially an Irish problem, not a European one, will put Ireland in a terrible situation," said Katy Hayward, Border Expert at Queen's University in Belfast.
To avoid this, Dublin could try various measures to protect the border without going through physical checkpoints. Electronic notifications can be used to collect tariffs and check the rules of origin of goods. Ireland could also try to apply the myriad of regulations and controls associated with the EU border with patrols behind the border. The Irish police have already established occasional checkpoints near the border to control illegal immigration. (The irony here is that a borderless technology-based border is precisely what the EU27 said in the UK would not work.) High-risk agricultural products can be targeted by temporary controls put in place for outbreaks of foot-and-mouth disease.
However, if smuggling of prohibited materials and tariff fraud begins to increase and non-compliant goods circulate, Ireland will be vulnerable to infringement action by the European Commission or other Member States. before the Court of Justice of the European Communities. Irish courts and tribunals could also prosecute individuals and companies, for example a company in another Member State that felt disadvantaged compared to an Irish competitor with free entry rights. customs.
Sir Alan Dashwood, a British lawyer with long experience in European law, including a senior official at the ECJ, said: "The political and legal cost of not enforcing the single market would put such enormous pressure on the commission that She almost certainly felt compelled to act if Ireland refused to protect the border for a while. "
The ECJ has a reputation for being a politically aware court and will probably leave the Irish government some leeway to come up with a solution. But the evidence that the single market is seriously compromised could be corrected by a "temporary measure" in a few months.
Sir Alan said: "The Court of Justice will be sensitive to the political situation and could show a certain degree of tolerance in the short term with regard to the measures adopted by Ireland to facing an unprecedented situation. But he can not tolerate an indefinite threat to the integrity of the single market. "
Officially, especially because of their commitments to the Good Friday agreement, the Irish and British governments insist that they will not place a physical border on the island of # 39; Ireland. Their legal obligations, however, may give them little choice.
Further reading
It's time to destroy the myth that we can not have a Brexit of Free Trade because of the Irish border
"At the sight of the Blacklion border in Cavan County, Belcoo Village, County Fermanagh, there is a bank of six extremely sophisticated ANPR cameras. This is an infrastructure that exists without causing disruption. And there is already a border for security, VAT, taxes, excise and currency. The exit of the single market and the customs union for a Canadian-style FTA adds an additional element: customs. " (Former Minister of Immigration Mark Harper, in The Telegraph)
The government ignored the basic principles of a successful negotiation
"There are no technical obstacles to an agreement on Brexit on trade, security cooperation, dispute settlement, the Irish border and all the rest. The EU is infinitely flexible when it wants to be. Entry criteria for euro membership were canceled when appropriate. The "no bailout" rule in the EU treaties was ignored during the euro crisis. There are dozens of exemptions and waivers to deal with special situations, if any. " (David Heathcoat-Amory, former President of the European Research Group, on BrexitCentral)
PM will not be forgiven if the fishing industry is again betrayed
"As an independent coastal state, British fishermen will operate under much more equitable quota shares. After Brexit, we will stop selling 60% of our natural fishery resources. British fishermen will no longer be forced to catch 9% of the cod in the Channel, while French fishermen will hold 84%. " (The leaders of the fishing unions Barrie Deas and Bertie Armstrong, in The Times)
Hard numbers
The Bank of England and the financial services sector on Tuesday urged the European Union to urgently tackle the legal uncertainty surrounding vast amounts of derivatives due to Brexit . The BoE's Financial Policy Committee called on European authorities to "take swift action," said that if the UK collapsed out of the bloc without a withdrawal agreement, it risked cutting the 41 million £ of derivatives. The International Swaps and Derivatives Association, which represents banks and other financial institutions, warned that a Brexit without a transaction would have "immediate negative impacts" on these financial contracts. Here is our explanator on what is at stake.
