According to the UK government, the Northern Ireland Protocol will not last as long as the European Court of Justice continues to serve in its oversight capacity.
On the other hand, the EU has stated that without the court's supervision, it would be very difficult for the protocol to continue. What is the ECJ, how does it fit into the protocol, and what alternatives are there?
The highest court in the EU is officially known as the Court of Justice of the European Union. Located in Luxembourg, it.
The Court of Justice and the General Court make up both of its separate courts. The Civil Service Tribunal, a third court, operated from 2004 to 2016, but the General Court now handles its business.
This article will use the European Court of Justice (ECJ) to refer to the work of the entire institution in order to avoid confusion.
Here, you can find out more information or look up a specific case.
Contrast this with the European Court of Human Rights (ECtHR), a distinct organization that is not a member of the European Union.
It determines whether EU institutions are acting legally and resolves conflicts among them.
It makes sure that the EU's member states are abiding by the rules outlined in the EU treaties and gives them the opportunity to challenge EU regulations.
In response to requests from national courts, it interprets EU law.
When taken as a whole, this indicates that the ECJ interprets and upholds EU laws generally as well as those governing the single market.
In accordance with the protocol's terms, which the UK and EU jointly agreed upon as part of the Brexit agreement, Northern Ireland continues to adhere to EU rules on product standards, allowing for the free movement of goods within the EU single market.
When goods arrive at Northern Ireland's ports, they must be thoroughly inspected, and customs paperwork must be completed.
According to the agreement that established the protocol, EU representatives are entitled to monitor its application and implementation.
Additionally, it declares that the ECJ has the authority to decide on issues of EU law in Northern Ireland.
The ECJ would decide whether the UK was in violation of its obligations under the protocol's terms if there was a dispute regarding compliance with applicable EU law.
The UK would take part in proceedings in any cases brought before the ECJ in the same manner as an EU member state.
Lord Frost, a former minister for Brexit, favored eliminating the ECJ's oversight of the protocol.
The government claimed in a paper released in July 2021 that the "very specific circumstances" of the protocol negotiation were the only reason it had agreed to the ECJ's participation.
It wished to implement a new system of governance where disputes would be "managed collectively and ultimately through international arbitration.".
This criticism of the ECJ's function can be traced back to the Brexit vote. In fact, it directly addresses one of the issues that British Euroskeptics have long had with the EU: the fact that European courts could make decisions on UK-related EU law issues.
"Take back control" was a key phrase for the Leave campaign during the Brexit campaign.
Then at the Conservative Party conference in October 2016, the then Prime Minister Theresa May said: "We are not leaving (the EU) only to return to the jurisdiction of the European Court of Justice. That won't happen, I assure you. ".
Unspecific pledges to regain control over our laws suddenly took on a very specific promise to end the UK's participation in the ECJ. It was made a government off-limits.
However, that did not prevent the government from ratifying the NI Protocol with ECJ oversight. Lord Frost wished to alter that particular situation.
Maros efovi, vice-president of the European Commission, said in October 2021: "I find it difficult to see how Northern Ireland would remain or would maintain access to the single market without supervision of the European Court of Justice. ".
Lord Frost reiterated his desire to have the ECJ removed from its oversight role, and the then-Irish Foreign Minister Simon Coveney responded forcefully.
According to Mr. Coveney, the UK's protocol demands could "cause a breakdown in relations" with the EU.
The comprehensive compromise proposals the EU is putting forward, he continued, make the UK's dismissals "more serious" now.
It happens again this week, according to Mr. Coveney, "every time the EU puts forward new ideas, new proposals to try to solve problems, they are dismissed before they are released.".
He claimed that the UK's firings were viewed by the EU as following "the same pattern, over and over again.".
The model for resolving disputes used in the main withdrawal agreement with the EU and the bilateral agreements the EU has made with neighbors like Ukraine is one substitute that has been put forth.
In accordance with these agreements, only disputes involving the interpretation of EU law are heard by an arbitration panel before being brought before the ECJ.
The EU is clear that the ECJ — not an intermediary like the arbitration panel — is the only body that has the authority to interpret EU law, according to David Phinnemore, professor of European politics at Queen's University Belfast.
The Tony Blair Institute's trade policy lead, Anton Spisak, however, asserted that it might serve as a "landing zone" for the UK government and the EU.
According to him, the arbitration panel serves as the "default arbitrator" even though the ECJ is the only body with the authority to interpret EU law.
He believes that in the end, the UK is willing to accept a "more narrow role for the ECJ, but only in those situations where EU rules apply.".
The arbitration panel, he continued, is the one who ultimately decides, but the panel must take the ECJ's opinions into consideration.
"The EU has dealt with other third countries applying EU law in this way in the past, and the reason I believe it to be a realistic proposal is because the EU recently brought it up with Switzerland. ".
The EFTA Court, which oversees the three nations that make up the European Economic Area (EEA)—Iceland, Liechtenstein, and Norway—is another alternative that might be considered.
Theoretically, Prof. Phinnemore said, "That is a possible alternative, but it would require setting up a court specifically for Northern Ireland. ".
He added that the EFTA Court follows the ECJ's precedent when making decisions.
Additionally, Mr. Spisak did not think that the EFTA Court offered a workable solution.
There is no precedent that permits anyone other than the ECJ to decide on EU market regulations, according to Prof. Phinnemore.
"EU rules must be followed if you want to participate in the goods single market, and I don't see the EU changing its position on that.".
"In a sensitive debate like this, it is helpful to start from the first principles," Mr. Spisak said. It is simply unavoidable for the ECJ to serve as an arbiter of those rules if there are EU rules in the protocol, whether they are there now or in some sort of renegotiated agreement.
"And since it is unlikely that a protocol will exist in which EU laws play no role at all, both parties must figure out how to include the ECJ in that agreement. ".
He did, however, think that a compromise could be reached.
"There is a technical solution that appears to be a more conventional international treaty but involves the ECJ in particular situations," he said. The main challenge is political.
"The UK would receive a signal that the EU is willing to renegotiate a significant portion of the protocol, which the UK has stated it would not do.