30th January 20211
After four years or so of chronicling the various self-inflicted unforced errors of the United Kingdom, and the better decisions at each stage of Brexit by the European Union, it is kind of refreshing to see the European Commission commit a pratfall.
Of course, this is a grave situation, and we should be terribly earnest, but still: it is salutary to be reminded that no entity is perfect.
That said, some partisans – this time for the European Union – will maintain that there was no error and that the European Commission was entitled yesterday to invoke article 16 of the Irish protocol.
Unfortunately for such partisans, the European Commission did a quick reverse-ermine last night to un-invoke article 16.
This was quite the spectacle for onlookers at the end of what was, on any view, not a good week for the European Commission.
But what is article 16?
And what on Earth was the European Commission thinking?
And how can the European Commission explain (away) recital 17 of the (now deleted) proposed regulation in question?
One of the blessings of Brexit is dealing with ‘articles’ of international legal instruments – most famously article 50 of the treaty on European Union.
The word ‘article’ is somehow grander than the more mundane ‘section’ and the plebeian ‘clause’.
And indeed articles tend to more self-contained as legal provisions – sometimes like micro legal instruments within macro legal instruments.
Article 16 is within the Irish protocol, which in turn is a protocol to the withdrawal agreement.
Instruments within instruments within instruments.
The article provides in its entirety:
The article is entitled ‘Safeguards’ – but straight away you will see that the provision is itself subject to its own safeguards.
In paragraph 1, the trigger for the safeguards has to be a serious situation that is likely to persist.
And – it then provides that any safeguards will be ‘restricted’ to what is ‘strictly necessary’ for the purpose of remedying that particular serious situation.
And – ‘priority’ shall be given to what measures that cause the least disturbance.
And – in paragraph 2, any imbalances caused by the uses of the safeguards can be addressed.
And – in paragraph 3, there is a further process to be followed, as set out in an annex.
Annex 7 then in turn supplements the substantive limits to the use of Article 16 safeguards with procedural protections:
Even in the event of ‘exceptional circumstances’ under point 3 of this annex, there is still a procedure to be followed.
Safeguards within safeguards within safeguards, and so on.
In summary: invoking article 16 is not to be done casually or by mere oversight.
It is not a red button that can be pressed by accident.
There are substantive and procedural conditions to be fulfilled before it can be invoked.
And the European Commission will know this – for two reasons.
First, article 16 is a provision which the European Union recently agreed.
And second, the European Union is a creature of law itself and is thereby bound by the letter of the law in what it can and cannot do.
The essence of the European Union is process, or it is nothing.
Given the careful substantive and procedural protections of article 16 it came as a bit of a surprise when reports emerged yesterday that the European Commission was invoking the provision – and was doing so in a highly charged political situation.
Even the archbishop of Canterbury.
Although the invocation of article 16 was widely reported by major news sites – and was not denied by the commission – there appears to have been no formal announcement by the commission.
Indeed, there appears to be no ‘on the record’ confirmation that it was invoked.
What happened is that a proposed European Union regulation appears to have been published.
Screenshot here. The text of the regulation was linked to the press release announcing the new law. No suggestion that it was a draft. https://t.co/rYO1WSH9kB— Steve Peers (@StevePeers) January 30, 2021
Deleted a couple of hours later at about the time the Irish government objection was reported.
Think this was that link before it was taken down.. pic.twitter.com/FEDZjYreRa— James (@jamestweets29) January 30, 2021
And, while I was writing this post, a reliable source has provided me with this ‘final’ copy that was deftly downloaded before the European Commission deleted the regulation.tradoc_159398 (1)
Recital 16 – a formal recital! – of this regulation has the European Commission asserting that the quantitive restriction on exports was ‘justified’ under article 16, and that the justification was because it was ‘in order to avert serious societal difficulties due to a lack of supply threatening to disturb the orderly implementation of the vaccination campaigns in the Member States’.
This is significant, as the recital indicates that the justification exercise has already been conducted – that the recital describes a thing that has already taken place.
But asserting the safeguard is justified is not the same as showing that the substantive requirements of article 16 have been met: was it ‘restricted’ to what is ‘strictly necessary’ for the purpose of remedying that particular situation, and was ‘priority’ given to what measures that cause the least disturbance?
Was the measure even within the scope of the Irish protocol in the first place?
And was the annex 7 procedure followed – or even considered?
What we do know, however, is that formal recitals to legal instruments do not come about by accident – even when those regulations are in draft form, let alone ‘final’ form.
Somebody somewhere in the European Commission had to have made a decision for that recital to be part of the regulation.
And that can be most plausibly explained by someone at the European Commission having decided to invoke article 16.
The invocation did not last long.
The European Commission issued a late-night press release stating that it was not triggering article 16:
The key sentence is unqualified (and is curiously in the present tense): ‘The Commission is not triggering the safeguard clause.’
The known facts point to article 16 having been triggered – that is the most plausible explantation for recital 16 to the proposed regulation – but also point to the commission not having followed annex 7.
In the immediate political context of concerns about ‘vaccine nationalism’ and in the broader context of the border in Ireland after Brexit, it was an unwise move by the European commission.
(Though, as averred at the head of this post, it was also good to see that the European Union can blunder as horribly as the United Kingdom.)
Perhaps the European Commission now hopes that this mistake will fade and disappear.
Perhaps both sides will now take more care before even considering article 16 safeguards.
Or perhaps all this is, in effect, a dress rehearsal for the political crisis when either side does go through with invoking article 16.
If you value this free-to-read and independent legal and policy commentary please do support through the Paypal box above, or become a Patreon subscriber.
Each post takes time, effort, and opportunity cost.
Suggested donation of any amount as a one-off, or of £4.50 upwards on a monthly profile.
This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is usually published at about 9.30am UK time – though some special posts are published later.
You can also subscribe for each post to be sent by email at the subscription box above (on an internet browser) or on a pulldown list (on mobile).
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated.
Comments will not be published if irksome.