Much has been said and written over the last few months about EU fury over claims that the UK was breaching the Northern Ireland protocol, in relation to imports of a number of products, including sausages.

Hugh Rowland
Partner at Gotelee Solicitors LLP

With neither side willing to concede their stance to achieve a long-term trade agreement in relation to chilled meats, there has been another extension to the grace period, and the sausage saga is once again on the back burner. Crystal ball gazing is unlikely to provide any real answers but looking back at how we get here may put the sizzling divide in context.

When the UK left the open market, we accepted the imposition of border checks on goods traveling from the UK to the EU. However, it was agreed by all sides that the 1998 Good Friday agreement (“the peace deal”) which established an open border between Northern Ireland and the Republic of Ireland was to be preserved at all costs.

In order to do that a new “regulatory border” was set up between Northern Ireland and the rest of Great Britain. Customs checks would be carried out on goods entering Northern Ireland from England, Scotland and Wales. Goods which entered Northern Ireland, could then move freely into the Republic of Ireland without the need for further checks.

From 1 January 2021, following the Brexit transition period, it became apparent that the monitoring of some food products, such as eggs, milk, fish and frozen meat, was not happening as required by the protocol. To allow Northern Ireland supplies to continue uninterrupted, a grace period was extended by three months to March. But, in March the UK decided unilaterally to extend the grace period to October. This stretched EU goodwill to breaking point and legal action on that alleged breach followed the same month.

The EU sent a letter of formal notice to the UK (for the second time in six months) claiming that the protocol had been breached by the U.K.’s movement of some goods and pet travel. The letter required the UK to carry out swift remedial actions to restore compliance with the protocol. This included calling on the UK to enter into consultation in the Joint Committee, which had been established to try to resolve disputes with the working of the protocol and which is jointly chaired by the EU and the UK.

A different grace period, concerning chilled meat products, including sausages, entering the EU market via Northern Ireland was due to come to an end at the end of June, and brought a lot of attention back to the Northern Ireland Protocol. The EU does not allow chilled meat products from countries which are not member states to enter the EU market, due to health concerns. Talks held between the UK and the EU made very slow progress, and it looked for a while like the two sides were at an impasse and no deal could be reached. This would have meant no UK chilled meats, including sausages, making their way to Northern Ireland from the rest of the UK.

Finally, on 30 June 2021 it was announced that the EU had agreed to extend the chilled meats grace period for a further three months, to the end of September.

In the long term, the EU is calling for alignment between UK and EU rules on plant, animal and food safety, if there is to be long term trade deals in those areas. In short, alignment means following the same rules.

Whereas the UK is still aiming to strike a deal on the basis of equivalence. This would involve the EU and the UK recognising each other’s regulatory requirements as achieving the same outcomes, without the need for the rules to be the same.

Whilst the issue has been once again kicked someway down the road, failure to find a more permanent way through this after the end of September could result in serious supply chain issues.

If this new grace period passes without a deal being made, and it is not extended again, then either all exports of chilled meats from England, Scotland and Wales to Northern Ireland must stop, or the EU could take legal action on the basis that the UK would be in breach of the protocol.

The European Court of Justice (ECJ) could impose substantial financial sanctions if it rules that the UK has acted illegally.

Wider trade and supply chain implications arise if the UK does not then comply with the financial penalties imposed by the ECJ. The EU could suspend other trade agreements, leading to the imposition of barriers to trade across other sectors.

Gotelee Solicitors LLP

w: www.gotelee.co.uk

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