After the UK threatens, and the EU warns against, invoking Article 16, the talks continue

European Commission Vice President Maroš Šefčovič speaking after his meeting in London today with Lord David Frost.
Friday, November 12, 2021

Today, Lord David Frost, the British Cabinet Office Minister, and European Commission Vice President Maroš Šefčovič, the co-chairs of the Joint Committee that oversees implementation of the EU-UK Withdrawal Agreement, met in London to take stock of the discussions this week between EU and UK trade experts in regard to the difficulties that have arisen in the movement of goods from Great Britain to Northern Ireland. As they did, many in the EU and the UK waited anxiously to hear whether the UK had decided to invoke Article 16 of the Protocol and unilaterally take “safeguard measures” to alleviate those difficulties. The good news coming out of today’s meeting: The UK has not yet decided to invoke Article 16 and the talks will continue.

The Protocol, which, including annexes, is 63 pages in length, sets out the arrangements the EU and UK agreed would be necessary after the UK left the EU in order to address the unique circumstances on the island of Ireland—specifically, those needed to maintain North-South cooperation, avoid a hard land border between the Republic and Northern Ireland, and protect the 1998 Belfast (Good Friday) Agreement in all its dimensions. The arrangements, agreed in the autumn of 2019 after the Withdrawal Agreement negotiated in 2018 by Theresa May’s government under which the UK would remain, at least temporarily, in a “single customs territory” with the EU had been rejected three times by the House of Commons, stipulated that while, as previously agreed, Northern Ireland would continue to adhere to the rules and regulations of the EU’s Single Market, the EU’s customs code and border procedures would apply to all goods arriving in Northern Ireland from Great Britain. In effect, the revised Protocol created a border in the Irish Sea for goods moving from Great Britain to Northern Ireland in order to avoid creating either a hard border between Northern Ireland and the Republic or a single customs territory between the UK and the EU.

The first paragraph of Article 16 of the Protocol, entitled “Safeguards,” states: “If the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade, the Union or the UK may unilaterally take appropriate safeguard measures. Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. Priority shall be given to such measures as will least disturb the functioning of this Protocol.” The second paragraph of the article states: “If a safeguard measure taken by the Union or the UK, as the case may be, in accordance with paragraph 1 creates an imbalance between the rights and obligations under this Protocol, the Union or the UK, as the case may be, may take proportionate rebalancing measures as are strictly necessary to remedy the imbalance. Priority shall be given to such measures as will least disturb the functioning of this Protocol.” The third and last paragraph of the article states: “Safeguard and rebalancing measures taken in accordance with Paragraphs 1 and 2 shall be governed by the procedures set out in Annex 7 to this Protocol.”

Annex 7 states that when either party is considering taking safeguard measures under Article 16(1), it shall, without delay, notify the other party through the Joint Committee and shall provide all relevant information, after which the EU and UK shall immediately enter into consultations in the Joint Committee with a view to finding a “commonly acceptable solution.” It further states that the party considering taking safeguard measures may not do so until one month has elapsed after the date of notification unless the consultation procedure has been concluded prior to that limit. It also states that when exceptional circumstances requiring immediate action exclude prior examination, the EU or UK may apply forthwith the protective measures strictly necessary to remedy the situation. The annex further stipulates that the party taking the measures shall, without delay, notify the Joint Committee of the measures taken and shall provide all relevant information, and that the measures taken will be the subject of consultations in the Joint Committee every three months from the date of their adoption with a view to their abolition before the envisaged date of expiration, or to the limitation of their scope of application. These provisions apply to rebalancing measures as well as safeguard measures.

The 2019 Withdrawal Agreement provided for a transition period after the UK left the EU on January 31, 2020 until midnight on December 31, 2020, during which the UK would remain in the EU’s Single Market and Customs Union. Last Christmas Eve, the EU and UK concluded their Trade and Cooperation Agreement (TCA), which was provisionally applied, pending subsequent approval by the European Parliament, as of January 1, 2021. That meant that since, as of that date, the UK would no longer be in the Single Market and Customs Union but, in accordance with the Protocol, Northern Ireland would continue to adhere to the rules and regulations of both, all goods and products arriving in Northern Ireland from Great Britain would be subject to the EU’s customs code and procedures.

In anticipation of that moment, in December European Commission Vice President Maroš Šefčovič and Chancellor of the Duchy of Lancaster and Cabinet Office Minister Michael Gove, at the time the co-chairs of the EU-UK Joint Committee, announced a series of arrangements that would temporarily exempt animals, plants, chilled meats and other agri-food products, medicines, parcels and other goods arriving from Great Britain and destined for consumption or use in Northern Ireland from the EU border checks and customs procedures that would otherwise have applied as of midnight on December 31. The exemptions, known as grace periods, were granted to ensure that those goods would continue to be available to the citizens of Northern Ireland without delays or interruptions while businesses adapted to the new arrangements and procedures that would apply after the transition period ended.

The grace periods varied in length but most were for three months and thus scheduled to expire on April 1. Frost, who had been the UK’s chief negotiator of both the 2019 Withdrawal Agreement and the subsequent TCA, was appointed Minister of State in the Cabinet Office and replaced Gove as co-chair of the Joint Committee on March 1. Two days later, a ministerial statement was issued that the UK would extend the three-month grace period for agri-food goods scheduled to end on April 1 for six months. That prompted the EU’s General Affairs Council to approve an infringement procedure against the UK. Subsequently, another dispute arose over another expiring grace period covering the shipment of chilled meats to Northern Ireland.

On July 21, the British government issued a Command Paper entitled “Northern Ireland Protocol: the way forward.” The paper called for new talks aimed at amending the Protocol and establishing a “new balance” in regard to the movement of goods between Great Britain and Northern Ireland. It noted that, while the Joint Committee had agreed on time-limited grace periods for some goods moving from Great Britain to Northern Ireland, all other goods moving from Great Britain to Northern Ireland, including those destined only for consumption in Northern Ireland, were subject to the full checks and controls that apply to goods moving from third countries into the EU. It noted that supply chains had been disrupted; costs to businesses had increased; at least 200 companies in Great Britain had stopped supplying the Northern Ireland market, resulting in a substantial diversion of trade to Ireland; plants and trees long sourced from Great Britain could no longer be stocked in nurseries and garden centers; supermarkets had reduced their product lines because of delays and shortages; the supply of medicines produced in Great Britain was at risk of being interrupted; and pet owners and those relying on assistance dogs had encountered difficulties in travel within the UK. The paper concluded, “the current situation is not sustainable. The way the Protocol is working needs to change.”

The paper argued the significant disruption in trade between Great Britain and Northern Ireland and resulting diversion of trade from Great Britain to Ireland as a source of goods for Northern Ireland, coupled with the societal and economic impact and the political and community instability that had occurred as a result, would justify the UK invoking the Article 16 “Safeguards” clause of the Protocol. The paper argued, “Article 16 was designed precisely with such circumstances in mind, allowing for either party to act unilaterally with appropriate measures, in a proportionate way and in a manner necessary to remedy the situation.” On the other hand, the paper noted that, if Article 16 were invoked, it could be applied only to the specific difficulties identified, would be subject to the uncertainties of the as-yet-untested dispute settlement process, and would, at best, be only temporary. For those reasons, it said the UK had concluded that, at least for the time being, it wasn’t appropriate for it to exercise its rights under Article 16, although such action “remains on the table as a possibility in the future if circumstances justify it.”

Instead, the paper argued that, since the social and economic difficulties and trade diversion “derive from fundamental issues with the existing Protocol arrangements, not least the extensive customs and agri-food burdens they impose,…any solutions must fundamentally address those burdens for internal UK trade. That requires significant change to the Protocol, through a new balance of arrangements which can operate pragmatically and accord with the unique circumstances of Northern Ireland.” That being the case, it said, “We now need urgent talks that can try to find a new balance for the Protocol: one that fully respects Northern Ireland’s place in the UK market, while maintaining the integrity of the EU’s own market…These talks need not look at all aspects of the Protocol…The focus should be on the arrangements covering trade in goods and on the overarching institutional framework put in place by the Protocol. It is in those aspects that the current provisions have led to the perceptions of unfairness and imbalance. It is here that we must find the new balance.”

Toward that end, the paper called for finding ways to remove the burdens on trade in goods within the UK while managing the real risks to the EU’s Single Market, which would mean ensuring that full customs and sanitary and phytosanitary (SPS) health processes are applied only to goods destined for the EU. In addition, it said ways had to be found to ensure that businesses and consumers in Northern Ireland could continue to have access to goods from the rest of the UK on which they have long relied. Importantly, it also said the governance of the Protocol should be “normalized” by having a “normal Treaty framework” such as exists with the TCA rather than an arrangement in which it is policed by EU institutions including the European Court of Justice. A negotiation covering that ground could, the paper said, “ensure that the new settlement that we reach is a true balance of interest: putting the operation of a rebalanced Protocol onto an equitable footing which all sides own and are ready to operate fully, without being a constant source of tension as at present.“

The paper acknowledged that making those changes would require negotiation of an agreement to amend the Protocol: “These changes will of course require a subsequent agreement, as envisaged under Article 13(8) of the Protocol, in order to amend, at least in part, certain provisions. We consider that such an amendment would fundamentally strengthen the Protocol’s ability to meet its core objectives.” Article 13(8) states, “Any subsequent agreement between the Union and the United Kingdom shall indicate the parts of this Protocol which it supersedes. Once a subsequent agreement between the Union and the United Kingdom becomes applicable after the entry into force of the Withdrawal Agreement, this Protocol shall then, from the date of application of such subsequent agreement and in accordance with the provisions of that agreement setting out the effect of that agreement on this Protocol, not apply or shall cease to apply as the case may be, in whole or in part.”

Šefčovič immediately responded to the paper. He noted the revised Protocol was a joint solution found by the EU working with Prime Minister Boris Johnson and Frost and was part of the Withdrawal Agreement that was ratified by the UK Parliament. He also noted the EU has sought flexible, practical solutions to overcome the difficulties citizens in Northern Ireland were experiencing and noted, in particular, that in late June the Commission had tabled a package of measures to address certain pressing issues including the continued supply to Northern Ireland of medicines produced in Great Britain. He said the EU would “continue to engage with the UK, also on the suggestions made today. We are ready to continue to seek creative solutions, within the framework of the Protocol…However, we will not agree to a renegotiation of the Protocol. Joint action in the joint bodies established by the Withdrawal Agreement will be of paramount importance over the coming months. We must prioritise stability and predictability in Northern Ireland. I look forward to speaking to Lord Frost soon.”

On October 13, the Commission proposed a package of “bespoke arrangements” to address some of the difficulties encountered in the movement of goods from Great Britain to Northern Ireland. The package consisted of four “non-papers” (the EU’s term for non-legislative texts). The first, pertaining to food, plant and animal health issues, proposed a vastly-simplified certification process that would reduce by roughly 80 percent the number of official checks required for a wide range of retail goods moving from Great Britain to be consumed in Northern Ireland, conditional on, among other things, packaging and labelling that indicates the goods are for sale only in the UK and reinforced monitoring of supply chains. The second, pertaining to all goods moving from Great Britain to Northern Ireland, proposed simplifying customs formalities and processes, thereby reducing the documentation needed for goods moving from Great Britain to Northern Ireland by roughly 50 percent. Taken together, those changes would, the Commission said, “create a type of ‘Express Lane’ for the movement of goods from Great Britain to Northern Ireland, while at the same time providing for a robust monitoring and enforcement mechanism in order to protect the integrity of the Single Market.” The third “non-paper” proposed improving the exchange of information between stakeholders and authorities in Northern Ireland and the Commission by establishing structured dialogues with stakeholders and including them in meetings of the Specialized Committees that monitor implementation of the Withdrawal Agreement and by creating stronger links between the Northern Ireland Assembly and the EU-UK Parliamentary Partnership Assembly. The fourth “non-paper” proposed that, in order to ensure the uninterrupted long-term security of supply of medicines from Great Britain to Northern Ireland, pharmaceutical companies in Great Britain retain all of their regulatory functions where they are now located, meaning that Great Britain could continue as a source for the supply of generic medicines for Northern Ireland.

The Commission’s proposed “bespoke arrangements” obviously didn’t respond to all of the concerns expressed by the UK in its July Command Paper. Nevertheless, if implemented, they would significantly improve the movement of goods from Great Britain to Northern Ireland. In proposing the arrangements, the Commission said it “now stands ready to engage in intensive discussions with the UK government, with a view to reaching a jointly-agreed permanent solution as soon as possible,” and for the past month, discussions have taken place between British and EU trade experts and, each Friday, between Frost and Šefčovič to take stock of those discussions. But with the UK continuing to insist on negotiations to amend the Protocol, the EU refusing both renegotiation and amendment, and little evidence thus far that progress is being made in the technical discussions, speculation has increased that the UK may soon invoke Article 16. Indeed, when he arrived at the Commission last Friday for his meeting with Šefčovič, Frost was asked whether the UK was going to invoke Article 16 at the meeting. He said that wouldn’t happen. But he also said that Article 16 is “very much on the table and has been since July.” He said the UK would “carry on trying” to reach an agreement and wouldn’t invoke the article “with any particular pleasure.” But, he said, “time is running out.” He said it would help if the Commission listened to what was said in the Command Paper and looked at the situation in Northern Ireland. Unlike after their previous meetings, Frost didn’t issue a statement or a tweet. One official later described the meeting as “cold…their worst ever…They’re just talking past each other.”

Šefčovič, for his part, noted in his statement after the meeting that the Commission has been engaged intensively with the UK to find common ground between their positions and had spared no effort in preparing the package of “bespoke arrangements” it put forward last month. But, he said, “until today, we have seen no move at all from the UK side. I find this disappointing and once again, I urge the UK government to engage with us sincerely. From this perspective, I see next week as an important one. We should focus all efforts on reaching a solution as soon as possible.” Turning to the UK’s possible use of Article 16, he said, “We hear a lot about Article 16 at the moment. Let there be no doubt that triggering Article 16 – to seek the renegotiation of the Protocol – would have serious consequences. Serious for Northern Ireland, as it would lead to instability and unpredictability. And serious also for EU-UK relations in general, as it would mean a rejection of EU efforts to find a consensual solution to the implementation of the Protocol.” He said discussions would continue this week at the expert level and that he and Frost would meet again today in London.

The possibility that the UK might invoke Article 16 in order to unilaterally take safeguard measures to deal with the difficulties that have arisen in regard to the movement of goods from Great Britain to Northern Ireland has, not surprisingly created an uproar, including from some important figures in the UK and EU. Last Saturday, in a BBC radio interview, former Prime Minister John Major said invoking Article 16 in order to suspend portions of the Protocol would be “colossally stupid…It would be seen as very bad faith indeed, it would be seen as irresponsible…It would add to destabilisation  in Northern Ireland, it would seriously damage relationships across the whole of Ireland north and south and the UK, it would erode relationships between Europe and the UK, it would damage relationships between Washington and London…It would be a difficult and dangerous road to go down…It is not just a question of trade difficulties, it could, we have seen what has happened in Northern Ireland before, it could become much worse; they should be very, very careful about this.” Last week, Irish Taoiseach (leader of the government) Micheál Martin said, “It would be irresponsible, unwise and reckless to invoke Article 16. If such an act were to be taken by the British government, I think it would have far-reaching implications for the relationship between the UK and the EU.” Irish Tánaiste (deputy leader of the government) Leo Varadkar likewise said, “I don’t think anybody wants to see the European Union suspending the Trade and Cooperation Agreement with Britain, but if Britain were to act in such a way that it was resigning from the Protocol, I think the EU would have no option other than to respond.” And in an interview Sunday, Irish Foreign Minister Simon Coveney said suspending any part of the Withdrawal Agreement would be “deliberately forcing a breakdown in relationships and negotiation between the two sides.” He noted, importantly, that the TCA was “contingent on the implementation of the Withdrawal Agreement, which includes the Protocol….One is contingent on the other, and so if one has been set aside, there is a danger that the other will also be set aside by the EU.”

On Wednesday, Šefčovič met with the member states’ ambassadors to the EU and, in a downbeat presentation, discussed the difficulty in obtaining the UK’s agreement to the “bespoke arrangements” proposed last month and its continuing threat to invoke Article 16. He said the Commission will set out next week possible options for the member states to consider if the UK does indeed invoke Article 16. He didn’t explicitly discuss what the EU might do but he did note, as Coveney and others had, that the TCA between the EU and UK was contingent on the prior Withdrawal Agreement and, specifically, the terms of the Protocol contained in it.

Also on Wednesday, Frost delivered a lengthy statement to update the House of Lords on recent developments in the UK’s relationship with the EU. He said the government’s view of the “bespoke arrangements” was that “while the EU’s proposals did not go as far as our Command Paper, nor cover all the areas that we believed needed  to be addressed – in particular, the protocol’s untenable governance arrangements – they were worth discussing….Since then, we have been in intense discussions with the European Commission…The aim has been to assess whether it is possible to close the substantial gap between our positions and secure a consensual, negotiated resolution. So far that has not been possible….If the talks do in the end fail, we will of course publish in full our assessment of the EU’s proposals and set out why they fall short of a durable settlement, but we will not do that until we have exhausted all the negotiating possibilities. …Accordingly, we continue to work to see whether the EU position on these issues can yet develop further, and whether it is possible to find a way to deal with the other important matters necessary to put the protocol on a sustainable footing, such as the interlinked issues of the imposition of EU law and the Court of Justice, state aid, VAT, goods standards, and so on….In my view, this process of negotiations has not reached its end Although we have been talking for nearly four weeks, there remain possibilities that the talks have not yet seriously examined, including many approaches suggested by the UK. So there is more to do and I certainly will not give up on this process unless and until it is abundantly clear that nothing more can be done. We are certainly not at that point yet. If, however, we do in due course reach that point, the Article 16 safeguards will be our only option. We have been abundantly clear about this since July, when we made it clear that the tests for using Article 16 were already passed. Nothing that has happened since has changed that.”

Had those who feared the UK was about to invoke Article 16 and unilaterally take “safeguard measures” to alleviate the difficulties encountered in the movement of goods from Great Britain to Northern Ireland heard or read that statement, they would have anticipated the outcome of today’s meeting—that the UK did not invoke Article 16 and there was, instead, a constructive tone in the meeting. In a statement following the meeting, the UK government spokesperson said, “Lord Frost noted that there remained significant gaps to be bridged between the UK and EU positions. He noted that, as set out to the House of Lords on 10 November, it remained the UK’s preference to find a consensual way forward, but that Article 16 safeguards were a legitimate part of the Protocol’s provisions. Lord Frost also underlined the need to address the full range of issues the UK had identified in the course of discussions, if a comprehensive and durable solution was to be found that supported the Belfast (Good Friday) Agreement and was in the best interests of Northern Ireland. In this context, although talks had so far been conducted in a constructive spirit, Lord Frost underlined that in order to make progress, it was important to bring new energy and impetus to discussions. Accordingly, intensified talks will take place between teams in Brussels next week on all issues, giving particular attention to medicines and customs issues. Lord Frost and the Vice President will meet at the end of the week to consider progress”

For his part, Šefčovič said after the meeting, “My message has been clear and consistent—the EU is committed to finding practical solutions for the people and stakeholders in Northern Ireland; our package is a direct response to concerns they raised and makes a tangible difference. Right now, we need the UK government to reciprocate the big move the EU has made…I acknowledge and welcome the change in tone of discussion with David Frost today—and I hope this will lead to tangible results for the people in Northern Ireland.…We need to make serious headway in the course of next week. This is particularly important as regards the issue of medicines. An uninterrupted long-term supply of medicines from Great Britain to Northern Ireland is the Protocol-related issue on everyone’s mind in Northern Ireland…I prefer to have a joint solution with the UK government. But if we are to amend our own EU legislation…we need to find this solution quickly. We will therefore intensify our talks next week. I am convinced that the issue of medicines could be a blueprint for how to approach and solve together the remaining outstanding issues. So next week, we will also discuss other issues, including significant reduction of customs-related red tape, with a view to making serious progress.” He said he and Frost will meet again next Friday in Brussels.

The talks will continue. A collective sigh of relief could be heard in the UK and across the EU.   

David R. Cameron is a professor emeritus of political science and the former director of the MacMillan Center’s Program in European Union Studies.