As the UK & France argue about fishing, the UK & EU continue discussing the Protocol

Today, Lord David Frost, the British Minister for the Cabinet Office and co-chair of the Joint Committee that oversees implementation of the EU-UK Withdrawal Agreement, met with EU Commission Vice President Maroš Šefčovič, the other co-chair, to continue discussing the problems that have arisen in the movement of goods from Great Britain to Northern Ireland, the UK’s proposal in its July Command Paper to amend the Protocol on Ireland/Northern Ireland  contained in the Withdrawal Agreement, and the Commission’s proposals last month to address those problems. Hovering in the background was the UK’s threat in the Command Paper to invoke the Article 16 “safeguards” clause of the Protocol that would allow it to act unilaterally to alleviate the problems that have arisen in regard to Northern Ireland.

Today’s meeting was Frost’s second important meeting in two days. Yesterday, he met in Paris with Clément Beaune, the French Secretary of State for European Affairs, to discuss the dispute between the UK and France over the former’s alleged failure to license a large number of French fishing vessels so they can continue operating in British territorial waters and the latter’s threat to close its ports and fisheries to British fishing vessels and institute border checks on trucks entering from the UK and its subsequent seizure of a British trawler. The dispute prompted meetings between British Prime Minister Boris Johnson and French President Emmanuel Macron at both the G20 summit in Rome last weekend and the opening of the COP26 meeting in Glasgow earlier this week as well as a series of meetings in Brussels this week involving British, French and EU officials. 

Under the terms of last December’s EU-UK Trade and Cooperation Agreement (TCA), EU fishing vessels that had operated in the UK’s Exclusive Economic Zone (EEZ), which extends from 12 to 200 nautical miles offshore, and wished to continue doing so were required to obtain a license from the UK. EU fishing vessels that had operated in the UK’s territorial waters—those which are 6 to 12 nautical miles offshore—were likewise required to obtain a license. But unlike those wishing to continue fishing in the UK’s EEZ, those wishing to continue fishing in the UK’s territorial waters were required to apply to fish in the same zones in which they had previously fished and provide evidence that they had fished in those zones in at least four of the years between 2012 and 2016.

On October 27, claiming that 50 percent of its applications for licenses had not yet been approved by the UK, France announced it would issue a series of retaliatory measures that would take effect at midnight on November 1 and would include stricter customs and sanitary controls on British trucks and boats arriving in French ports and prohibition of British fishing vessels unloading their catches in French ports. It also said that if the UK continued to refuse to approve the applications for licenses from French owners of fishing vessels, it might cut off the supply of electricity, via an underwater cable, to Jersey, one of the Crown Dependencies that is roughly 15 miles offshore from France. Jersey’s government understandably was alarmed, and later that day French, British, and Commission officials met and agreed that 162 French vessels would be licensed, either on a permanent or temporary basis, to fish in Jersey’s territorial waters as of last Friday. But prior to that and in order to underscore its objection to the slow pace of licensing, on October 27 France also authorized officials to board a large British trawler, the Cornelis Gert Jan, that was dredging for shellfish in French waters and check its papers. After finding that it didn’t have a license to operate in those waters, the trawler was escorted into the port of Le Havre, where it was tied up and its captain was charged with fishing without a license.

While French and British officials exchanged angry words about the UK’s slow pace of licensing  French fishing vessels and the French reprisal threatened for November 1, Frost and Šefčovič met in London last Friday to continue their talks in regard to the persistent difficulties in the movement of goods from Great Britain to Northern Ireland. On October 13, in response to the UK’s July Command Paper that called for negotiation of a new Protocol to address those difficulties, the Commission, while rejecting any renegotiation of the Protocol, proposed a package of “bespoke arrangements” designed to reduce or eliminate a number of the customs checks and procedures that have caused delays or blocked altogether the movement of agricultural products, foods, medicines, and other products from Great Britain to Northern Ireland.

The “bespoke arrangements” proposed by the EU were described in four “non-papers” (i.e., EU terminology for non-legislative texts). The first “non-paper,” 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 the UK completing construction of permanent border control posts, making use of specific packaging and labelling indicating the goods are for sale only in the UK, and reinforcing monitoring of supply chains. The second “non-paper,” pertaining to all goods moving from Great Britain to Northern Ireland, proposed simplifying and making customs formalities and processes easier and thereby reducing the documentation needed for goods moving from Great Britain to Northern Ireland by roughly 50 percent. Taken together, the changes proposed in those two “non-papers” 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 in regard to the implementation of the Protocol by establishing structured dialogues with stakeholders, participation of stakeholders in meetings of the Specialized Committees that monitor implementation of the Withdrawal Agreement, and stronger links between the Northern Ireland Assembly and the EU-UK Parliamentary Partnership Assembly. And 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 would be allowed to retain all 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 even though it is, for the EU, a third country.

On October 15, Frost and Šefčovič met in Brussels to discuss the continuing difficulties in regard to the movement of goods from Great Britain to Northern Ireland. Frost, while recognizing the efforts Šefčovič and the Commission had made in addressing the difficulties, reiterated the UK’s position that significant changes, along the lines set out in the July Command Paper, were needed to the current arrangements, including in regard to governance and, specifically, the role of the European Court of Justice as the final arbiter of trade disputes between the UK and the EU. Nevertheless, both sides agreed to engage “intensively and constructively” in discussing the proposals put forward two days earlier by the Commission and agreed that talks involving EU and British officials would continue in Brussels.

Last Friday, Frost and Šefčovič met in London to continue discussing the issues involving the Protocol. Following the meeting, Šefčovič tweeted, “I met Lord Frost to take stock of discussions on the Protocol on IE/NI. Essential that we find common ground. We owe it to the people of Northern Ireland to find stable solutions asap—the Commission’s far-reaching proposals will have a real impact.” A UK spokesperson said, “The week’s talks have been conducted in a constructive spirit. While there is some overlap between our positions on a subset of the issues, the gaps between us remain substantial. As we have noted before, the EU’s proposals represent a welcome step forward but do not free up goods movements between Great Britain and Northern Ireland to the extent necessary for a durable solution. Nor do they yet engage with the changes needed in other areas, such as subsidy policy, VAT, and governance of the Protocol, including the role of the Court of Justice. Our position remains that substantial changes to the Protocol will be needed if we are to find a sustainable solution that works in the best interests of Northern Ireland and supports the Belfast (Good Friday) Agreement,”

The UK spokesperson also noted that Frost had conveyed to Šefčovič the UK’s “concerns about the unjustified measures announced by France earlier this week to disrupt UK fisheries and wider trade, to threaten energy supplies, and to block further cooperation between the UK and the EU, for example on the Horizon research programme. Lord Frost made clear that, if these actions were implemented as planned on 2 November, they would put the EU in breach of the Trade and Cooperation Agreement. The Government is accordingly considering the possibility, in those circumstances, of launching dispute settlement proceedings under the TCA, and of other practical responses, including implementing rigorous enforcement processes and checks on EU fishing activity in UK territorial waters, within the terms of the TCA.”

Frost reiterated those concerns in a long tweet last Saturday in which he set out “where things stand between the UK and the EU on fisheries and related issues, and why recent French rhetoric and threats, potentially leading to a breach by the EU of its Treaty obligations, are such an important matter for us.” He noted the UK has been in talks with the Commission for weeks on licensing and has granted 98% of applications: “We do so in good faith & are fully delivering on our TCA obligation—to license vessels which can prove they have actually fished previously in our 6-12 nm limit.” That, he said, was why the UK was both surprised and concerned that French Prime Minister Jean Castex had written, in a letter to Commission President Ursula von der Leyen that was subsequently leaked, that, “It would thus appear necessary that the EU shows its absolute determination to obtain the UK’s full compliance with the agreement [i.e., the TCA] and also asserts its rights through recourse to all means at its disposal in a firm, unified and proportional manner. It is indispensable to show clearly to European public opinion that the respect of commitments entered into is not negotiable and it is as damaging to leave the Union as it is to stay in it.” Frost said he hoped that opinion is not held more widely across the EU and that “to see it expressed in this way is clearly very troubling and very problematic in the current context when we are trying to solve many highly sensitive issues, including on the Northern Ireland Protocol. This is all the more so as the threats made by France this week to our fishing industry, to energy supplies, and to future cooperation, eg through the Horizon research programme, unfortunately form part of a pattern that has persisted for much of this year….As I set out yesterday to Maroš Šefčovič, these threats, if implemented on 2 November, would put the EU in breach of its obligations under our trade agreement. So we are actively considering launching dispute settlement proceedings as set out in Article 738 of the TCA….We will continue to talk constructively to try to resolve all the differences between us, and we urge the EU and France to step back from rhetoric and actions that make this more difficult.”

The threats issued by France and scheduled to take effect at midnight on November 1, coupled with the seizure of the British trawler and the Castex comments, prompted Prime Minister Boris Johnson to discuss the issue with President Emmanuel Macron and von der Leyen at the G20 in Rome last Sunday. In a press conference after the meeting, Macron made it clear the French position had not changed: “The ball is in Britain’s court. If the British make no movement, the measures of 2 November will have to be put in place.” But privately Macron, Johnson and Von der Leyen agreed that French and British officials, including representatives of the Jersey and Guernsey governments, the two largest Channel Islands, would meet in Brussels the next day to discuss, and hopefully resolve, the issue. And prior to the meeting, the Jersey government announced it was issuing 49 temporary licenses for French vessels in an effort to defuse the crisis. Johnson, Macron and von der Leyen met again last Monday at the COP26 summit and Macron made it clear that, unless there was some breakthrough in the negotiations going on in Brussels, the reprisals “will take effect at midnight tonight.” But later that day, the French government announced it would not implement the proposed measures as of midnight and called for in-depth discussions to resolve the issue. Toward that end, Beaune extended, and Frost quickly accepted, an invitation to discuss the issue in Paris yesterday.  

In anticipation of yesterday’s meeting, on Wednesday France allowed the British trawler and its crew to return to the UK. Also on Wednesday, in a statement made in the House of Commons, Victoria Prentis, the Minister of State for Farming, Fisheries and Food, said that as of 9 a.m. that day the UK had received 1831 applications for fishing licenses and had issued 1793 licenses, 98 percent. 38 licenses were pending further information from the Commission or member state. (In addition to the 1831 applications received as of that date, the UK had also received 37 applications from France for direct replacement vessels that will be processed once a methodology has been finalized for such vessels.) Of the 1831 applications received, 1673, including 736 for French vessels, were for fishing in the EEZ which extends from 12 to 200 nautical miles offshore. All 1673 applicants received a license. There were 159 applications, including 138 for French vessels, for a license to fish in the UK’s territorial waters—i.e., those which are 6 to 12 nautical miles offshore. (The other 21 were for Belgian vessels.) Licenses have been issued for 121 of the 159 applicants, including 104 of the 138 French applicants. The applications for the other 34 French applicants, almost all of which are vessels under 12 meters in length, are pending.

The TCA provides different criteria for those seeking licenses to fish in the waters of the Crown Dependencies of Jersey, Guernsey and the Isle of Man, which are responsible for issuing their own licenses. The TCA specifies that each party to the agreement will grant vessels of the other party access to fish in its waters “reflecting the actual extent and nature of fishing activity that can be demonstrated to have been carried out during the period beginning on February 1, 2017 and ending on January 31, 2020 by qualifying vessels.” A “qualifying vessel” is one that fished in the relevant waters on more than 10 days in one of the periods defined by the TCA. Both Jersey and Guernsey have extended transitional arrangements to enable EU vessels to continue fishing in their waters while evidence of relevant fishing activity during the reference period is being collected and prepared for submission and they move to a full licensing system. As of 9 a.m. on November 3, Jersey had received 217 applications, had issued 113 permanent licenses, and had granted 49 temporary licenses that are valid until January 31, 2022 pending receipt of further information from the Commission or member state. 55 of the 217 applications lapsed on October 30 because of a lack of supporting evidence. Jersey had also received 11 applications for replacement vessels, which are pending the finalization of a methodology for such vessels. Guernsey has a transitional arrangement that allows continued access to its waters for 167 French vessels until January 31, 2022 and will issue full licenses to eligible vessels on December 1. Thus far, it has received 58 applications for licenses. The Isle of Man has not received any applications. Frost subsequently tweeted, “As there are some partial figures around, and for full transparency, we have today set out in Parliament the full & authoritative data on the state of play on fishing licenses granted by the UK, Jersey, and Guernsey this year.”

Armed with those data, Frost met with Beaune yesterday for almost two hours. Beaune later said the meeting was “useful and positive” and said they had agreed to intensify talks on the licensing issue. In regard to the threatened reprisals, he said, “All options are still on the table.” But “as long as dialogue seems possible….we are giving it a chance, with no naivety…and with a requirement to see results.” However, there is, he said, “still a lot of work to do,” claiming that France was still waiting for some 200 licenses. He later tweeted that he was “happy to receive” Frost and “restart a necessary dialogue” and announced they would speak again early next week. Johnson’s spokesman said, “The French government have been clear they are not looking to proceed with those threats…I think both sides are keen to have discussions.”

After that meeting, Frost continued on to Brussels for today’s meeting with Šefčovič. After the meeting, Šefčovič issued a statement in which he said the Commission has been engaged intensively with the UK to find common ground between their positions and has spared no effort in preparing and implementing the package of “bespoke arrangements” it put forward three weeks ago. 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.” And then he turned to the UK’s possible use of the Article 16 “safeguards” clause in the Protocol, which allows either the EU or the UK to “unilaterally take appropriate safeguard measures…to remedy the situation” if the application of the Protocol “leads to serious economic, societal or environmental difficulties that are likely to persist, or to diversion of trade.” Šefčovič 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 will continue at the expert level and that he will meet again with Frost next Friday in London. Lastly, he noted that he and Frost had exchanged views on the fishing issue and said, “The TCA is clear: vessels that were fishing in the territorial waters of the UK and the Crown Dependencies should be allowed to continue. All French vessels entitled to a license should receive one.”

A spokesperson for the British government said Frost had “underlined that progress had been limited and that the EU’s proposals did not currently deal effectively with the fundamental difficulties in the way the Protocol was operating.” The spokesperson said Frost said, “these gaps could still be bridged through further intensive discussions.” But he had also said the possibility of invoking Article 16 is still “very much on the table and has been since July.”

All in all a downbeat and disappointing end to a difficult week.

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