Does the EU still have jurisdiction over the whole of the UK? The ECJ seems to think so

The European Court of Justice (ECJ) in Luxembourg EPA-EFE/JULIEWARNAND


Hidden in the dull reports from the European Courts is a groundbreaking judgment that makes it clear just how done in Brexit has been. Done in because of the position of Northern Ireland in the post Brexit world. It shows how successful the EU’s negotiations with successive British Governments have proved. As reported by Brussels Signal, the UK is being fined a trifling €32 million for having failed to prohibit the use of marked fuel in private pleasure boats, essentially maritime red diesel.

Red diesel is the fuel that is coloured or marked to prove lower duty has been paid by commercial vehicles, like tractors on farms. Or tugs in rivers.

The Commission were upset with the UK because Westminster had allowed the continued use of this red or marked diesel in various sectors including hire pleasure craft.

The impact of this was simple. When Jean-Luc took a hire boat across the Channel to the UK, and filled up there, then pottered back to enjoy the pleasures of the Friesan or the French coast, European tax inspectors could not tell whether full EU duty had been paid on the fuel.

Cue that most traditional bureaucratic outrage, “This person has dodged tax. How can we use this failing to increase our authority?”

Post Brexit Britain couldn’t care, not their problem. To the UK, this was akin to HGV cabotage in the past. Hauliers would fill up on lower duty fuel at the vast petrol stations near the continental Channel ports. They would then cross into England to do their business in the UK, take intra UK jobs and then drive home again without fuelling in the higher duty UK. They could thus undercut British truckers.

Anyhow, reasoned the UK, the numbers of pleasure craft are so small, and the amount of duty lost so insignificant that frankly it wouldn’t cause any serious issue.

The UK Government reckoned without a couple of factors. Firstly, the EU’s constant and specific lust after two things. Power and money. Power over post-Brexit Britain like revenge, is a luxury to be savoured, and at leisure. Money, well money is money, no matter how paltry the amount.

So in August 2017, a full year after the Brexit vote, an infringement proceeding was brought against the UK. After the Withdrawal Agreement, first agreed by Theresa May, then confirmed under Boris Johnson, Northern Ireland remains under the jurisdiction of the EU.

As the Court makes clear, because Northern Ireland is part of the EU’s jurisdiction, so is the rest of the UK: “It is true that, since 1 January 2021, the infringement at issue has concerned only Northern Ireland… the fact that, since 1 February 2020, the United Kingdom is no longer a Member State is irrelevant for the assessment of its ability to pay, with the result that it is not appropriate to treat it differently from the Member States in that regard”.

The Court goes on to make the argument that by punishing the UK for its post Brexit activities by only taking into account the economy of Northern Ireland it would not be, “sufficiently dissuasive” to stop Britain diverging from EU law.

“Given,” it says, “that, since the end of the transition period, EU law no longer applies in the United Kingdom except in respect of Northern Ireland… there is no reason to take that factor into account once again as regards the United Kingdom’s ability to pay”.

The ramifications of this decision puts the UK in a quandary. It sets a precedent. The European Courts clearly feel, despite Brexit, that the UK is – due to the Northern Ireland Protocol, confirmed by the Windsor Agreement – still effectively under EU law. Or at least this is now the case as far as punishment for infringements of EU law are concerned.

“Hah”, says Brussels, “got you!”

The ball is now in the UK’s court. It can, legally, do one of two things. It can pay the fine, keep quiet about it and accept the EU’s interpretation of the law. This would essentially allow the whole of the UK to be legally governed by the EU.

Or it can accept the slow and steady annexation and absorption of Northern Ireland into the EU.

There is of course a third option, but it is not one that the Government of Sunak is likely to take; it is certainly not one that a future Labour government would take. Respond to this legal lèse-majesté.

That would be to respond by refusing to pay the fine. They could point out that the UK voted in toto to leave the European Union and its legal jurisdiction.

The British could argue that, due to the creative interpretation of the EU courts,  good will has been forfeited. And that therefore a hard border on the island of Ireland is necessary. It could do this while saying that the UK would not impose border checks, but the EU would be free to.

No, you are right, Westminster and Whitehall do not have the bottle to stand up for the interests of the British public. It will either cave or surrender.