The British government faces severe financial penalties if European Union rules are not upheld in Northern Ireland, an opinion issued at the European Court of Justice (ECJ) suggests.
The opinion by the advocate general Anthony Collins, which is not legally binding but is strongly influential and usually confirmed by a later judgment, lays out that Britain should face large fines in cases of future noncompliance with EU law in Northern Ireland.
In an opinion on a landmark case related to the UK, Mr Collins rejected as “illogical” an argument by the British government that its lump sum fines for noncompliance should be reduced to reflect the UK’s reduced obligations regarding EU law following its withdrawal from the union.
On the contrary, he wrote, the court should take a “more stringent” approach to calculating fines to ensure that the British government is deterred from allowing breaches of EU law in Northern Ireland.
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“After its withdrawal from the European Union, the United Kingdom’s incentive to contribute to the maintenance of the latter’s integrity and legitimacy and to act in solidarity with its Member States by complying with all of its obligations at EU law is not the same as when it was a member state,” the opinion reads.
“These considerations lead one to the conclusion that, if anything, the lump sum payment ought to be increased, rather than decreased, in order to achieve a sufficient deterrent effect.”
The opinion relates to a case against the British government for allowing the use of marked or reduced-rate fuel in private pleasure craft, contrary to EU rules.
Britain was found to be in breach in 2018 but the judgment was not complied with, leading the European Commission to ask the ECJ to impose financial penalties on Britain.
The status of the ECJ as the final arbiter of disputes related to the Northern Ireland Protocol is currently a contentious topic in talks between EU and UK officials. That is a separate issue from the court’s role in adjudicating cases about compliance with EU law in the North, which has retained Single Market rules post-Brexit in order to avoid the need for a hard border on the island of Ireland.
In a hearing last September, lawyers for the British government appealed for fines to be reduced to below €250,000, arguing that the UK had left the European Union. The advocate general rejected the argument by Britain that the fines should be calculated in proportion to the size of the economy of Northern Ireland only, and not that of the entire UK.
Fines are imposed in cases in which a ruling by the court is not complied with, “to punish past failure to comply and to deter future noncompliance”, the opinion laid out.
Therefore even though the rules only continue to apply in the North, “it is the United Kingdom – not Northern Ireland – that is, in principle, responsible,” it continued, reasoning that it would therefore be “inappropriate” for fines to be calculated in proportion to the size of the economy of Northern Ireland alone.
As Northern Ireland’s economy represents just 2.25 per cent of the UK’s gross domestic product, this reasoning opens the door to much larger potential future fines.
[ EU and UK announce progress in push for Northern Ireland protocol dealOpens in new window ]
In this case, the advocate general recommended fining Britain just under €15 million for noncompliance up to the end of its withdrawal period from the EU, and €2.5 million for the later period when EU rules applied in Northern Ireland alone. The overall recommended fine was rounded down to €17 million.
The British government should be ordered to pay the European Commission’s legal costs, the opinion found.
A final ruling, which in the majority of cases follows the advocate general’s opinion, is expected by the summer.
[ The Irish Times view on the Northern Ireland Protocol talksOpens in new window ]
