EU agreement implementation, Northern Ireland

UK: Brussels Lex Specialis over Northern Ireland-style moves makes headway

While the Tory Party in the United Kingdom consumes itself with a leadership contest and the British parliament debates a bill which would unilaterally suspend the Northern Ireland protocol, the European Union’s plan for enforcement of the provisions of the EU-UK Withdrawal and Trade and Cooperation Agreements is making solid progress towards the statute books.

A legislative proposal for a dedicated instrument of enforcement tailored to the EU-UK relationship, tabled by the European Commission in March has received widespread support in both Council and European Parliament – and is expected to progress smoothly towards adoption in due course.

Member states reviewed the new rulebook on 21 June and proposed only minor changes to the text of the Commission’s regulation – which the Commission has already said it is happy to accede to.

An initial debate on the proposal among MEPs last Wednesday (13 July) – at an unprecedented joint session of the trade, foreign affairs and constitutional affairs committees – showed cross-party support for the initiative.

‘Swift’ use of EU powers

The EU’s initiative, while measured in tone and carefully calibrated to demonstrate the proportionality of the EU’s response, nevertheless bears witness to the complete lack of trust at present between the EU and UK, particularly over the question of Northern Ireland.

“Should the need arise to exercise its rights in implementing and enforcing the Withdrawal Agreement and the Trade and Cooperation Agreement, the Union should be in a position to make appropriate use of the instruments available to it swiftly and in a proportionate, effective and flexible manner, while fully involving Member States,” says the regulation’s preamble.

“The Union should also be able to take appropriate measures if effective recourse to binding dispute settlement under those Agreements is not possible because the United Kingdom does not cooperate in making such recourse possible,” it adds.

EU counter-measures

In essence, the new regulation creates a detailed framework for the EU’s response in any of the multiple situations where the possibility of countermeasures are provided for in either the WA or the TCA. These are enumerated as follows:

  • suspension of preferential treatment in case of ‘breaches or circumventions of customs legislation’;
  • remedial measures and suspension of obligations if there is a breach of the rules on state subsidies
  • rebalancing measures and countermeasures if there is a breach of the rules on the ‘level playing field’
  • refusal or revocation of licences if there is a breach of rules on airline security
  • suspension of acceptance obligations if there is a breach of rules on aviation safety
  • remedial measures if there is a breach of rules on road transport
  • compensatory measures and suspension of obligations in case of withdrawal of access to fishing grounds
  • remedial measures and suspension of obligations in the case of other fisheries disputes
  • suspension or termination of UK’s involvement in EU programmes
  • suspension of obligations in the event of an adverse panel ruling under the TCA’s dispute settlement provisions
  • safeguard measures and rebalancing measures in the event of failure to comply with “essential elements” of the TCA
  • measures restricting trade, investment or other activities “if adjudication is not possible because the United Kingdom is not taking the steps that are necessary for a dispute settlement procedure under that Agreement or the Withdrawal Agreement to function”
  • suspension of obligations under the dispute settlement provisions of the Withdrawal Agreement
  • remedial measures in case of breaches of the Northern Ireland protocol
  • safeguard measures and rebalancing measures under Article 16 of the Northern Ireland protocol

Lex specialis

Richard Szostak, the commission official who leads the executive’s ‘task force’ on EU-UK relations, made clear at the recent parliamentary debate that the proposed new regulation will constitute ‘lex specialis’ – to use the legal terminology.

This means that, in the EU-UK context, the provisions of the new regulation will take precedence over any more general provisions, such as the proposed new foreign subsidies regulation.

The Northern Ireland protocol bill, which would have the effect of unilaterally suspending key trade provisions of the protocol – which is part of the Withdrawal Agreement – is currently making its way through the UK parliament.

MPs in London have this week had their first opportunity to debate the draft legislation in depth in the so-called ‘committee’ stage of the legislative process.

However, opposition to the terms of the agreement among opposition MPs, and especially in the House of Lords, is likely to delay adoption of the bill until the end of this year at the earliest.

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