What are the legal implications if Ireland refuse to implement border checks?

sexmag · 23-09-2019 05:19PM #1

A wonder I have had.

In the seemingly likely event the UK leaves the EU without a deal, the president of the EU has insisted that ireland implement border checks.

What are the legal ramifications if we just....didnt?

There is no physical border there,free flowing traffic continues, the UK has said they dont want it,we have said we dont want it, what would happen if we just let things carry on as usual?

I understand there may be price changes on goods but what will the EU do if we didnt do what they asked for the good of our country and the good friday agreement?

Thanks

hullaballoo · 23-09-2019 06:29PM

*Paging Peregrinus* "Brexit spill on aisle 633"

banie01 · 23-09-2019 07:35PM

It would be in breach of WTO rules, those rules that Brexiteers care so deeply about for one thing.

I see a lot of traction around it being Ireland's and the EU's fault should a border be reimposed on the Island?

I don't understand the silly logic of those who come to that conclusion.

The EU is a single market with an agreement between 28 nations to harmonise customs and tariffs.
So once duty and customs clearance is obtained in 1 of the 28, it is in the main valid for all countries.

It is also a free labour market, where members citizens can in the main move and work freely without visa restrictions.

The UK's decision to leave has been made.
On foot of that leaving, UK access to the benefits of EU membership is removed.
That means customs and excise checks at all points of entry between the UK and the single market.

Don't get caught up in the notion that this is an issue solely about the "Irish" border.
It is not, it is about the British border with the EU27 in the event of a no deal brexit.

Borders between countries that are not in Customs or Regulatory union are governed by a variety of treaties.
That an International border simply be ignored because its convenient for the British is a bit ridiculous.

They knew all along what no deal meant, and ignored the risk...
The made specific requests in the withdrawal agreement negotiation that were met, then on further request amended again to meet British requests.

The line "No deal is better than a bad deal" is coming home to roost.
Ireland has the benefit of being a very open economy, with quite an outward looking view of how the world and by extension trading relations work.
Britain unfortunately got swept up in a wave of jingoism and somehow convinced themselves that all those products they export couldn't be substituted or indeed have their manufacturers move completely to other EU countries to maintain zero tariff and JIT supply lines.

Any return to a hard border on the Island will be a tragedy.
But it will be a tragedy that is forced by the British and should the British exit without a deal one that avoiding by simply ignoring will destroy our standing in the EU27 and repudiate the actual basis of the EU single market for the sake of British convenience.

GM228 · 23-09-2019 07:40PM

hullaballoo wrote: »

*Paging Peregrinus* "Brexit spill on aisle 633"

Is GM228s pager broken

Basically the European Commission takes a case to the ECJ against the state, if the ECJ rules against the state the state must act accordingly and introduce the measures, failing that the state receives massive fines until they comply.

This is provided for under the Infringements Procedure:-

https://ec.europa.eu/info/law/law-making-process/applying-eu-law/infringement-procedure_en

Allowed for under Articles 258, 260 and 279 of the Treaty on the Functioning of the European Union.

GM228 · 23-09-2019 07:44PM

banie01 wrote: »

It would be in breach of WTO rules, those rules that Brexiteers care so deeply about for one thing.

The WTO has already stated it would be a UK/EU issue, not a WTO issue.

https://www.irishtimes.com/news/ireland/irish-news/wto-says-its-rules-would-not-force-eu-or-uk-to-erect-hard-irish-border-1.3710136%3fmode=amp

banie01 · 23-09-2019 07:46PM

GM228 wrote: »

The WTO has already stated it would be a UK/EU issue, not a WTO issue.

https://www.irishtimes.com/news/ireland/irish-news/wto-says-its-rules-would-not-force-eu-or-uk-to-erect-hard-irish-border-1.3710136%3fmode=amp

Interesting way to pass the parcel I suppose

sexmag · 23-09-2019 08:39PM

banie01 wrote: »

It would be in breach of WTO rules, those rules that Brexiteers care so deeply about for one thing.

I see a lot of traction around it being Ireland's and the EU's fault should a border be reimposed on the Island?

I don't understand the silly logic of those who come to that conclusion.

The EU is a single market with an agreement between 28 nations to harmonise customs and tariffs.
So once duty and customs clearance is obtained in 1 of the 28, it is in the main valid for all countries.

It is also a free labour market, where members citizens can in the main move and work freely without visa restrictions.

The UK's decision to leave has been made.
On foot of that leaving, UK access to the benefits of EU membership is removed.
That means customs and excise checks at all points of entry between the UK and the single market.

Don't get caught up in the notion that this is an issue solely about the "Irish" border.
It is not, it is about the British border with the EU27 in the event of a no deal brexit.

Borders between countries that are not in Customs or Regulatory union are governed by a variety of treaties.
That an International border simply be ignored because its convenient for the British is a bit ridiculous.

They knew all along what no deal meant, and ignored the risk...
The made specific requests in the withdrawal agreement negotiation that were met, then on further request amended again to meet British requests.

The line "No deal is better than a bad deal" is coming home to roost.
Ireland has the benefit of being a very open economy, with quite an outward looking view of how the world and by extension trading relations work.
Britain unfortunately got swept up in a wave of jingoism and somehow convinced themselves that all those products they export couldn't be substituted or indeed have their manufacturers move completely to other EU countries to maintain zero tariff and JIT supply lines.

Any return to a hard border on the Island will be a tragedy.
But it will be a tragedy that is forced by the British and should the British exit without a deal one that avoiding by simply ignoring will destroy our standing in the EU27 and repudiate the actual basis of the EU single market for the sake of British convenience.

What about Switzerland? They are not part of the EU but is part of the EFTA,does this impose borders on their country with EU member countries?

banie01 · 23-09-2019 10:06PM

sexmag wrote: »

What about Switzerland? They are not part of the EU but is part of the EFTA,does this impose borders on their country with EU member countries?

Switzerland is part of Schengen and also part of EFTA, hence has treaties governing borders and customs with its European neighbours.

While Ireland and the UK do share the CTA, the revocation of UK membership will require steps be taken to enforce Customs, Immigration and Regulatory compliance at any border external to the EU/Schengen/EEA/EFTA.

There are no permanent border posts anymore on the Swiss/EU borders but there still customs and compliance checks.

Switzerland avoids the need for landward passport and immigration controls by applying the simple logic that any product or person passing its border has been through customs in one of the Schengen countries and has been "landed".

As in the event of a No-Deal brexit the UK will be outside the EU, and has never been part of Schengen.
The same logic would dictate that any person or item crossing the border in Ireland would be subject to EU passport control, and customs and compliance checks.

There is a world of difference between a Schengen signatory and an EEA/EFTA member that is landlocked and surrounded by EU members on all landward approaches.
And a recalcitrant and disagreeable UK with only one EU border and no agreement governing the withdrawal.

Marcusm · 23-09-2019 10:19PM

banie01 wrote: »

Switzerland is part of Schengen and also part of EFTA, hence has treaties governing borders and customs with its European neighbours.

While Ireland and the UK do share the CTA, the revocation of UK membership will require steps be taken to enforce Customs, Immigration and Regulatory compliance at any border external to the EU/Schengen/EEA/EFTA.

There are no permanent border posts anymore on the Swiss/EU borders but there still customs and compliance checks.

Switzerland avoids the need for landward passport and immigration controls by applying the simple logic that any product or person passing its border has been through customs in one of the Schengen countries and has been "landed".

As in the event of a No-Deal brexit the UK will be outside the EU, and has never been part of Schengen.
The same logic would dictate that any person or item crossing the border in Ireland would be subject to EU passport control, and customs and compliance checks.

There is a world of difference between a Schengen signatory and an EEA/EFTA member that is landlocked and surrounded by EU members on all landward approaches.
And a recalcitrant and disagreeable UK with only one EU border and no agreement governing the withdrawal.

I know this is the theory but in my limited experience of driving from Italy to Switzerland, it was obvious that each car was subject to a check for the existence of a motorway sticker if nothing else. While there's no stamping of the passport, there was no driving across at 80 kph either. There are also customs checks.

banie01 · 23-09-2019 10:25PM

Marcusm wrote: »

I know this is the theory but in my limited experience of driving from Italy to Switzerland, it was obvious that each car was subject to a check for the existence of a motorway sticker if nothing else. While there's no stamping of the passport, there was no driving across at 80 kph either. There are also customs checks.

I know

banie01 wrote: »

.

There are no permanent border posts anymore on the Swiss/EU borders but there still customs and compliance checks.

scuba8 · 23-09-2019 10:28PM

sexmag wrote: »

What about Switzerland? They are not part of the EU but is part of the EFTA,does this impose borders on their country with EU member countries?

I am not sure about the upto date situation but about 10yrs ago there was a passport control at a border crossing traveling from Switzerland into Germany. Around that time I also saw two women removed from a train at a border post between Switzerland and Italy.

Peregrinus · 24-09-2019 01:36AM

GM228 wrote: »

Is GM228s pager broken

Basically the European Commission takes a case to the ECJ against the state, if the ECJ rules against the state the state must act accordingly and introduce the measures, failing that the state receives massive fines until they comply.

This is provided for under the Infringements Procedure:-

https://ec.europa.eu/info/law/law-making-process/applying-eu-law/infringement-procedure_en

Allowed for under Articles 258, 260 and 279 of the Treaty on the Functioning of the European Union.

I concur with my learned colleague's admirably succinct and accurate summation of the position, and have nothing to add.

Except this: the enforcement process is driven by the Commission, and they can drive it hard and fast, or not so hard and not so fast. There's some room for a modest degree of forbearance for Ireland, recognising the difficult position we are in and the highly fluid and rapidly developing situation.

I don't think we get away with not implementing a hard border, but we may get away with a gradual approach to rolling out all of the checks and controls that are appropriate - partly because in practice it will take some time for UK standards to diverge significantly from EU standards, but mainly because there's a hope that the problem could go away for other reasons. If no-deal Brexit proves absolutely horrible for the UK, public support for it could collapse quite quickly, and a UK government might be back at the table fairly soon, but this time with serious intent to honour its no-hard-border guarantee. And the UK may then be wiling to make commitments which will avoid the need for border controls, hopefully before the implementation of border controls has got very far.

But if that doesn't happen then, yeah, it's a gradual transition to full-on customs and regulatory border controls. (And the same on the UK side.)

Victor · 24-09-2019 01:44AM

Note that the EU is part funded by import duties and VAT. The EU could seek to recover these if they aren't collected. Then there is the risk of the dreaded state aid rules.

Peregrinus wrote: »

I concur ... and have nothing to add.

... continues on for 3 paragraphs.

24-09-2019 04:52PM

Could the EU just run the border themselves?
They have their frontex agency for border controls in other regions of Europe. Maybe they could do it without Ireland's input at all?

GM228 · 24-09-2019 05:02PM

bubblypop wrote: »

Could the EU just run the border themselves?
They have their frontex agency for border controls in other regions of Europe. Maybe they could do it without Ireland's input at all?

No, the operation of the European Border and Coast Guard is dependent on national operation, it does not have it's own border guards.

It is governed by the ENCG Regulation the provisions of which specifically do not apply to Ireland as it only applies to Schengen areas.

24-09-2019 05:07PM

It does have personel seconded from other eu countries though.
Perhaps if border checks were to be done, it could be done by other eu personel?

GM228 · 24-09-2019 05:12PM

bubblypop wrote: »

It does have personel seconded from other eu countries though.
Perhaps if border checks were to be done, it could be done by other eu personel?

Not in Ireland, it only has jurisdiction in Schengen countries.

With regards to seconded staff, they are only used for joint operations and rapid border interventions as well as in the framework of migration management support teams.

What are the legal implications if Ireland refuse to implement border checks?

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