Rewrite or Resolve? The Future of the Protocol | IIEA
The Institute of International & European Affairs
Hit enter to search or ESC to close

Rewrite or Resolve? The Future of the Protocol

Author: Stephen Frain

Introduction

The Protocol on Ireland/Northern Ireland (the Protocol) remains a source of contention in EU-UK relations and recent tensions have the potential to significantly impact Ireland. Both the UK and the EU have recently proposed their own solutions, however, there remains some distance between the two negotiating positions. The UK has called for a renegotiation of the Protocol and has proposed a new legal text to that effect. The EU, however, remains opposed to renegotiation and has offered four major concessions in how the Protocol operates in a package of bespoke arrangements. This blog examines the issues which continue to divide the UK and EU. It will also examine the proposals forwarded by both sides and assess what a potential outcome might mean for Ireland.

The Outstanding Issues

Governance of the Protocol and the Court of Justice of the European Union

As a result of the Protocol agreed in October 2019, Northern Ireland continues to participate in the EU Single Market for goods. As a consequence, the Protocol stipulates in Article 12(4) that the Court of Justice of the European Union (CJEU) has jurisdiction in Northern Ireland for EU laws which must be implemented in Northern Ireland. The interpretation of EU Single Market laws and all Treaty laws by the CJEU is an integral element of the Treaty on the Functioning of the European Union (TFEU).

However, 21 months after agreeing to this, in July 2021, the UK published a Command Paper entitled Northern Ireland Protocol: The Way Forward in which the UK described the role of the Court  as highly unusual. It proposes to reconfigure the governance of the Protocol by allowing for international arbitration. In a speech to the diplomatic community in Lisbon on Tuesday, 12 October 2021, Lord David Frost escalated the UK’s opposition to the role of the Court. He argued that the application of EU law in Northern Ireland does not have consent and that it disrupts everyday lives as well as causing serious turbulence to the institutions of the Belfast/Good Friday Agreement. European Commission Vice-President Maroš Šefčovič had previously said at an IIEA webinar that the Protocol is necessary to protect the Belfast/Good Friday Agreement and that the jurisdiction of the Court of Justice of the European Union is a necessary component of that.

Sanitary and Phytosanitary (SPS) Measures

Northern Ireland’s continued participation in the EU Single Market, has meant that Sanitary and Phytosanitary (SPS) checks must be carried out on retail-bound food, plant and animal shipments from Great Britain to Northern Ireland. This has proven a disconcerting issue for many retailers in Northern Ireland, who have already experienced - and fear the return of - empty shelves. This is a point which stakeholders raised with Vice-President Šefčovič during his visit to Northern Ireland between Thursday, 9 September and Friday, 10 September 2021.

The Commission’s package of bespoke arrangements is most significant in the field of SPS arrangements. Their “vastly simplified certification scheme” will, it suggests, reduce 80% of official SPS checks. This comes in addition to the June 2021 proposals for simplification of the implementation of the Protocol. Together, they can be viewed as a major concession on behalf of the EU to make the Protocol work in its current form. The Commission points out that now a lorry entering Northern Ireland from Great Britain carrying food products will only need to carry one certificate, as opposed to a certificate for each product carried.

In return, the European Commission is asking the UK to deliver on its commitments to complete the construction of permanent border control posts; to create specific packaging and labelling indicating that the goods are for sale only in the UK; and to the monitoring of supply chains. With these conditions and safeguards, the EU hopes to ensure the effective implementation of the Protocol without endangering the integrity of the Single Market.

Customs Formalities

Northern Ireland businesses buying goods from Great Britain had also registered concerns over the requirements for new customs declaration forms. The new proposals by the European Commission would, in theory, reduce the amount of customs documentation required by as much as 50%. In most cases, businesses would only need to provide basic information, such as the invoice value of the product. Large retail supermarkets would only be asked to rely on internal records and would only have to file customs declarations once a month as opposed to filing one declaration per transaction.

Such a reduction in checks, the European Commission says, is subject to a number of conditions. The EU is asking the UK to commit to providing full and real-time access to IT systems, to providing a review and termination clause, and to ensuring UK customs and market surveillance authorities implement appropriate monitoring and enforcement measures.

Democratic Deficit and Stakeholder/Authority Engagement

An issue raised by the UK Government in their July 2021 Command Paper and again by Lord Frost in Lisbon was the democratic rights of the people of Northern Ireland, which they argue has been undermined by the Protocol’s “rigidity”. Vice-President Šefčovič reiterated the desire of the EU to improve the exchange of information with stakeholders and authorities in Northern Ireland. The Vice-President has proposed establishing more structured dialogues between Northern Ireland stakeholders and the Commission. He also expressed his hope for strong links between the Northern Ireland Assembly and the new EU-UK Parliamentary Partnership Assembly.

Long-Term Medicine Supply in Northern Ireland

In order to prevent the disruption of any medicines entering Northern Ireland, the European Commission has proposed amending its own laws in this area to reassure British pharmaceutical companies that, as part of their proposed bespoke arrangements, they will be able to continue supplying Northern Ireland from their current locations. It is hoped that this will assuage fears that companies would have to relocate their hubs, testing facilities and or regulatory facilities to either Northern Ireland or the EU in order to maintain security of supply. The Commission is expected to hold further discussions with the UK and relevant stakeholders before finalising this.

The Path Forward

The visions presented by Vice-President Šefčovič and Lord Frost are vastly different in nature and suggest that there are limited options available. Intensive negotiations will be needed if a ‘landing zone’ is to be finally found in relation to the Protocol. The assertion by the UK Government that the jurisdiction of the Court of Justice of the European Union is a ‘red-line’ issue makes this task significantly harder given its importance to the functioning and integrity of the Single Market, an issue that was made clear by the European Commission and EU Member States and accepted by the UK during the Protocol negotiations in 2019.

Options for negotiations are further constrained by recent developments since the European Commission announced its package of bespoke arrangements for Northern Ireland. On Monday, 25 October 2021, Lord Frost told the UK Parliament’s European Scrutiny Committee that the Commission’s proposals do not go far enough. He suggested that if matters were not resolved by December 2021, the UK would consider invoking Article 16 of the Protocol. Article 16 of the Protocol was designed to allow parties to implement “safeguards” in the event of “serious economic, societal or environmental difficulties that are liable to persist” or in the event of the “diversion of trade”. In such a situation, the EU would be entitled to implement proportionate “rebalancing measures” or indeed question the legality of the UK’s invocation of Article 16 at the CJEU.

Whilst it is the UK Government and the European Commission who will negotiate solutions, unionist politicians remain vocal stakeholders in discussions about the Protocol and they continue to voice their opposition to it. On Thursday, 14 October 2021, the Democratic Unionist Party said it believes that there should also be a resolution on ‘pet passports’, an issue which the EU had previously offered to resolve in the form of a veterinary agreement should the UK comply with the implementation of the Protocol, but was not included in the Commission’s bespoke package. Whilst the Commission and the UK may ultimately agree on a solution, Ireland must remain aware of unionist concerns as their support for any solution will have knock-on effects for North-South relations on the island of Ireland going forward.

One alternative option to negotiation remains in play. In March 2021, Vice-President sent a letter of formal notice to Lord Frost and the UK Government for breaching the substantive provisions of the Protocol on Ireland and Northern Ireland, as well as the good faith obligation under the Withdrawal Agreement. This marked the beginning of infringement proceedings (Article 87 Withdrawal Agreement) against the UK. However, the European Commission announced that it has paused legal proceedings in September 2021 in order to seek a solution. Should the UK choose to invoke Article 16, the Commission may seek to challenge this as well as resume these legal proceedings. This is clearly the least desirable option, however.

Conclusion

Failure to find a mutually agreeable solution would have major ramifications for all EU Member States, but none more so than for Ireland, which has arguably the most delicately balanced set of interests of all Member States. The UK remains adamant that it is justified in triggering Article 16 if a resolution cannot be agreed upon. Both UK safeguards and any potential rebalancing measures by the EU would have major knock-on implications for East-West trade. Moreover, it would raise serious questions as to how the integrity of the Single Market can be ensured whilst continuing to protect the Belfast/Good Friday Agreement. Ireland, which has welcomed the proposals by Vice-President Šefčovič, would be most impacted by such an outcome, but nevertheless remains firmly aligned with the EU position. Tánaiste Leo Varadkar expressed his concern that “this is a British government that doesn’t necessarily keep its word and doesn’t necessarily honour the agreements it makes”.

A number of press outlets have reported that EU Member States, including France, Germany and the Netherlands, have urged Vice-President Šefčovič and the European Commission to prepare a contingency plan in the event that the UK does indeed trigger Article 16 and a trade war were to ensue. Ireland must follow these developments closely and indeed play an active role in these discussions. Ireland, like all EU Member States, has a vested interest in preserving the integrity of the EU Single Market. Moreover, as a co-guarantor of the Belfast/Good Friday Agreement, Ireland cannot afford any lapse in the commitments given to avoiding a hard border on the island of Ireland.