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?
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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.
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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.
Imagine that.
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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.
But.
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
The regulation (in draft form) appears to be at the internet archive.
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.
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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.’
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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.
Brace, brace.
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I agree with everything else you say (I think), but not with the first bit. As a matter of plain construction, “difficulties that are liable to persist” and “diversion of trade” are alternative grounds for invoking art. 16, and I would imagine that it’s the latter that the Commission might have had in mind.
Supply of the vaccine is scarce and tightly controlled. The logistics of cold storage required to move the vaccine add additional costs. Smugglers are unlikely to divert from tried and trusted contraband. An export ban could surely be enforced without the need for physical checks at the border in Ireland.
Contrary to what is widely reported, border checks do not seem to have been contemplated at all.
The regulation only allows for checks on-premises.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32021R0111
“8. The competent Member States authorities may verify the information submitted pursuant to paragraph 6 on premises of the applicant, even after authorisation.”
What would the correct procedure be for invoking Art 16 in an emergency?
There doesn’t appear to be one, just a procedure for a one month wait in a non emergency.
Putting aside good manners and political sustainability afterwards, isn’t the Commission within its rights under the exceptional circumstances wording in point 3 to invoke it without consultation or warning?
Read Annex 7 in full
Under Point 1 a safeguarding measure should be *notified* to the Joint Committee. Under Article 169 (1) of the Withdrawal Agreement it seems that this notification simply needs to be written notification to the Joint Committee.
A lot of people – including the Commission and your post above – seem to have been acting and commenting on the basis that this written notice was given to the Joint Committee by simple publication to the world of the (now withdrawn) Implementing Regulation.
But even if that wasn’t the case, surely an email to the British lead representative on the Joint Committee following publication would have sufficed as written notice.
So what else needed to be done? Under Point 3 “exceptional circumstances requiring immediate action” seem to justify immediate application of measures and overriding the 1 months notice period in Point 3 and consultation in Point 2.
Under Point 4 of Annex 7 the EU has a duty to provide all relevant information without delay, but this doesn’t seem to mean that all relevant information needs to be provided before the exercise of an emergency application of the safeguards, just that the information should not be witheld and that it should be sent when it is available.
The safeguard measures in Art 16(1) aren’t limited to Northern Ireland but talk about application of the NI protocol leading to serious societal difficulties liable to persist, which as they don’t seem to be limited to Northern Ireland could be in Northern Ireland, Great Britain or the European Union.
I don’t think that invoking Article 16 was politically sensible, indeed the European Commission seems to have been trying to start a trade war to escape responsibility for its failures in vaccine procurement, but the question is whether they were away from their rights here – and I don’t think they were.
The safeguard mechanism is a valuable part of the Northern Ireland Protocol that gives it flexibility and robustness by allowing but also limiting and controlling breaches and was something Her Majesty’s Government should have been looking at instead of the notwithstanding clauses in the Internal Market Bill. Exercise of this, while not being encouraged, should be tolerated.
As a layman your arguments seem a stretch. I can follow the legal finagling to say that it permissible but I think the number and height of the hoops to jump through are telling. Step back from the minutiae and the whole seems to be a breach of rules and procedures however you look at it: nothing was happening that could have justified immediate action at the border. After all, the announcement on exports was not an immediate ban but the establishment of a procedure that could lead in certain cases to a ban on some but not necessarily all exports. That slows plenty of time to invoke the notification and discussion clauses.
Just as importantly is the damage done by casually invoking Art 16. It seems to be a clause that was nit expected to be used often if at all. It reads with echoes of MAD. No one wants to go there and the steps to actually going public are designed to head that off. So it seems a warning: don’t mess with the arrangement or else. But once either side has invoked it – and backed off so quickly – the never-going-to-happen is lost.
You can see a similar sorry progression in the US. The almost casual threat and use of impeachment since January 2017 has ended up making it seem almost normal when it is meant to be an in extremis measure. Instead it has become another tool of the opposition. The extension to post – office impeachment is even more ominous: a big step to pursuing elected an appointee officials as well as civil servants after their term. This is literally what happens in much of Latin America with predictable results: and extreme reluctance to take decisions or even serve. Now we have serious movements in the US to pursue anyone associated with the prior administration either through the courts, impeachment or simply “canceling”. It’s not just Democrats: the Reps through the Lincoln Group are baying for blood.
So while it is not exactly the same, the EU has taken a leap down that path. Look at how quickly Foster tried to use the affair to undo the accord from the other side.
I think Hanlon’s razor applies here
Always easy to assert this, but how?
How does Hanlon’s razor explain Recital 16?
They didn’t think it was a big deal, and ask the way up the chain of approval there was no one who knew enough about Northern Ireland who realised that the EU putting in a hard border would give the UK a precedent
I think the drafters of Health regulations in the Commission did not understand the political sensitivity of the article they were invoking; they may have viewed it as a legal instrument like many others at their disposal.
I think that is right
More than that, I don’t think anyone was contemplating actual border checks. Invoking art 16 will have been a mere legal technicality, because some Commission lawyer insisted that this export ban technically violated the Northern Ireland protocol. It didn’t become a big deal until the UK side blew it out of all proportion.
Maybe but the EU is supposed to be very rules based and it is hard to believe that these things dont have to get internal legal sign off. At a minimum a call to Dublin would have been obvious if not obligatory. The failure suggests both panic and a singleminded focus on covering up the mess K and UvL had made in the first place.
The EU has indeed blundered here in a rather unpleasant – Macronian? – way.
But the U.K. could perhaps have deflected this in advance, had we a PM with an oodle of statesmanship or class.
Such a PM would have reiterated the UK’s contractual arrangements with the vaccine suppliers, and the need to honour the detailed vaccine delivery-programme promises made to the public, but then go on to say that of course we will share with our EU friends excess supplies that may arise in due course.
He would add that both the U.K. & EU must of course commit to the WHO COVAX programme which commits to getting vaccine to poorer nations.
As the cliché goes: No one is safe until everyone is safe
I believe that the UK Government has said that once there is a greater supply than is being used in the UK, then that excess will be sent elsewhere where it is needed most …
I hold no candle for the current UK Government but what we get to know is filtered through the often prejducied eyes of those reporting what they are saying – we are not helped by a very partisan press (all of them, TBH) that is not good at nuance and a political discourse that is too shouty …
There’s evidence for the effectiveness of inter alia vitamin D, Ivermectin and HCQ against viruses like SARS-CoV-2 that cause respiratory diseases. Have a look for instance at Dr. Poerre Kory’s testimony to the US Senate pleading for authorisation so that he doesn’t have to watch more needless deaths. These treatments should have been implemented March 2020. But ‘vaccines’ – some are conventional, some are just genetic therapy – wouldn’t then have got ’emergency authorisation’. Final safety testing even of the earliest ones finishes in about 2023. Funny isn’t it how cheap treatments get blocked so that expensive treatments can get prioritised.
It looks tentatively as if what we’d usually like to dismiss as ‘3rd world countries’ have done OK, also Far Eastern democracies like Japan, also maverick countries which followed WHO’s policy of pre-March 2020 and didn’t lock people up. Examples include Sweden and Belarus (!)
Have a look at the statements from Vallance and Whitty in March 2020. They were perfectly calming and reasonable to me. Also Whtty’s of 11 May 2020. But Ferguson came up with what turned out to be more fake figures – he has a ‘track record’ in this – and SAGE issued a paper saying that the level of fear had to be raised. Since then we’re seeing what I’d describe as psy-ops and SAGE has more psychologists on it than virologists, microbiologists, biochemists or immunologists. If the virus really was as deadly as SARS-1 or MERS, we’d be cowering at home, there’d really be bodies on the streets and the government would be issuing false reassurances.
Seriously, Bob, you are advocating hydrochloroquine as some sort of a treatment for SARS-CoV-2? On what basis? Are you a doctor? Can you perhaps refer us to a peer-reviewed study? Maybe you would also advocate inhalation or injection of disinfectant for cleansing, or bringing light inside the body through the skin or in some other way. Or perhaps just letting even more hundreds of thousands, millions of people die.
For each patient, SARS-CoV-2 is not as deadly as SARS-CoV-1 (which has case fatality rate of about 10%) or MERS-CoV (about 35%) but it is not as benign as influenza (case fatality below 0.1%). If you want a direct comparator, perhaps Spanish flu, with a case fatality rate of around 2% (inflated by the very basic medical care available in 1918-1920). Of course the death rates depend on age and comorbidities, and people can suffer severe health problems with significant impacts even if they survive.
But SARS-CoV-2 does seem to be very transmissible: its R0 is estimated as around 3 to 5 (similar to smallpox or the common cold, both of which are recognised as highly contagious) versus 1 or less for SARS and MERS.
As deaths from a disease are a product of how many people get it, multiplied by how deadly it is, the result for COVID19 is pretty bad, particularly if there are so many cases that healthcare systems fail and people with severe symptoms (who otherwise could have recovered) die.
I suggest you look again at Sweden, which has worse infection and death statistics than its neighbours. Its king accepted that its policy has failed.
You do realize that the UK has committed EUR620MM and raised a further $1bn via match fundraising for Covax while the EU has managed EUR500MM, rather belatedly? The EU manages to claim that it has funded 1bn doses which funnily enough is the same number the UK says it has funded with over 3x as much.
The UK has little to be proud about in the past 4 years but on Covax as on refugee aid 6 years ago it has stepped up well in excess of anyone else (except Gates).
Insinuating that the UK is partly to blame is unfair and smacks of a reluctance to acknowledge good work, even if by Boris (Biden has just done the same with Saloui on Warp Speed, btw. His team is slagging off Warp Speed and booted him via a leak instead of having the decency to thank him for an incredible job. Fauci indirectly acknowledged this achievement when he said on Day 3 that 100MM vaccinations in 100 days was “eminently feasible”)
I am disappointed that DAG has so much difficulty in simply calling out the EU for its atrocious behavior. We should be able to criticize the UK for Brexit and all the attempts to abuse power but recognize when the EU is equally wrong and the Uk for once is right.
The only good thing to have come out of this incident is the speed with which the Commission retracted its action.
I would make the difference between why the commission acted and how the commission acted.
We know not of the UK AZ contract, but AZ show all signs of acting according to the letter of their EU contract.
At the same time, we have seen reporting that the UK blocked the export of 100 medicines to treat Coronavirus (source politico)
We also have seen reporting on how and why the EU fell behind to get vaccines for cheaper prices and to ensure deliveries to 27 (again politico) and that Hungary has approved and vaccinated with the Sinopharm product (bbc)
So, in this context when a risk occurs that could leak scant, scarce vaccines away from the 27 into the arms of a former member who has lifted not one eyelash to talk of cooperation and even blocked it, I can see why the EU acted to preserve unity, and keep all 27 in the arms of the western alliance.
How they did it is in question. The commission should have picked up the phone to Irish Foreign Ministry and asked for their advice on the protecting the interests of the 27 on vaccines.
Let’s also be honest the stink of humbug is choking. When it is the UK stopping its own people with a guide dog travelling to a part of its own country or stopping its own people getting food we get a big meh from the commentariat.
So while it is tempting to cheer a clear own goal by the commission, I think it is for wiser heads to understand why they acted and the cost of failure.
The export block is on secondary exports – so those that buy the drugs from primary suppliers for use in the UK cannot then sell them on to third parties. It does not, as I understand it, block primary supplier exports …
From Politico:
“He (Gove) said the government would not be allowing vaccines to go to the EU at this stage. “The critical thing is we must make sure that the schedule that has been agreed and on which our vaccination programme has been based and planned goes ahead,” he told the BBC’s Today program.”
So in the circumstances of the current shortfall in AZ vaccine quantities, the UK won’t allow AZ to distribute the shortfall across its customers irrespective of what their contracts might say. That sounds like blocking primary supplies to me.
You are making the (huge) assumption that AZ owns the vaccine. I do not have insider knowledge of the relevant contracts but it is clear from the relevant press releases (Google them) in 2020 that HM Government paid VMIC (a separate not for profit legal entity established by HM Government) the ~£40m capital for the manufacturing equipment used for the Oxford vaccine which is then effectively manufactured by VMIC. They brought in Oxford Biomedica to supply a physical location for the virtual VMIC equipment to be (VMIC building not ready yet) and also to provide the expertise to run it properly. Then AZ provides the licence (from Oxford their upstream licensor) to make the bulk vaccine product. Bulk product then needs filled into vials to create finished product. HM Government have a contract with Wockhardt in Wales to provide fill and finish for anything HM Government want: AZ are not even involved in the contract, and the contract is not exclusive to the Oxford vaccine. It is therefore entirely possible (but none of us can know) that AZ does not own any of the first 100m doses of bulk product manufactured in the UK on equipment bought by HM Government and run under a contract they (or maybe VMIC) are a party to and they certainly don’t run the UK fill and finish operation at all. It is less clear from the press releases how the contract for bulk product manufacture with Cobra in Keele is structured. For those claiming we took EU doses I believe the Independent reported that was UK manufactured bulk product transported to one or two fill and finish lines in the EU when the Wales line wasn’t ready (do double check that), NOT EU bulk product being sent to UK. People who assume pharma companies are vertically integrated monoliths or that HM Government are not party to contracts at all steps of the manufacturing process are leading themselves astray. David Allen Green you may wish to consider these points/do some googling of press releases from 2020 as part of your review of the AZ contract tomorrow.
If this is to be believed, the redacted AZ contract can be unredacted.
https://www.theregister.com/2021/01/29/eu_commission_vaccine_contract_redaction_fail/
The presence of typos in the ‘final’ pdf of the Regulation indicates it was not in fact final.
As does the fact that it doesn’t have a number.
It gets a number when it is published in the Official Journal of the European Union. https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=OJ:L:2021:031I:FULL&from=EN with the offending recital removed.
I agree with the commentators here,I just wonder and I have seen this done in negotiations, could there be a more intricate game of chess going on here – I mean who knew about Art 16 before this.. we know now that IF either side so chose they can invoke what is pretty much a nuclear bomb under the Protocol. Who does that serve? Maybe I have it completely wrong and the EU Commission has screwed up, most likely they have panicked, but now they bare their teeth for a fraction of a minute.. who does that serve?
For me, the idea that the EU would abuse its own rules for its own purposes is not something that surprises me very much.
The first time that I became aware that this might occur was with the ERM and the EU’s reaction to its failure. Like every Government and inter-Governmental organisation is imperfect and needs improvement over time.
Sadly, the tendency now appears to be an overplaying of its own hand. Potentially, this is very worrying and the absence of a large critical mass of sceptics within the EU institutions will, I fear, lead to its own difficulties. I hope that I am proved wrong, but the posture being adopted by Macron and some within the EU institutions themeselves over a number of issues (the next budget and the valid critique of what is happening in Hungary and Poland, spring to mind) is not too encouraging.
I think there are several issues here. You have covered the issue of law very well and very thoroughly. I cannot opine on whether this triggering would have held in a court of law, but it is ultimately of no matter, due to the EC backtracking. Whether the legal and political consequences of triggering Art. 16 were properly considered, we shall never know (though from what I’ve read and heard, and the EC’s swift retreat, one can assume that they weren’t).
Politically, one could claim that this ‘pratfall’ has damaged the EU’s reputation, but I am not quite sure how far that holds true. In political and diplomatic circles, quite probably, though there one would assume that abstract terms such as ‘reputation’ play a lesser role than more concrete factors, such as economic weight, political clout etc. The EU possesses enough of these that this mistake will not weigh it down too heavily. Also, one should think that the speedy correction should lessen the blemish of this mistake. One can compare this to the UKs consideration of explicitly breaking international law, which they refused to rule out for quite some time. I should think that many third parties will have some understanding for the EU’s position, having to deal with a recalcitrant, mendacious country which at times bordered on lawlessness.
Vis-a-vis the UK, the EUs move was certainly counterproductive. However, UK public opinion is of no matter to the EU anymore. Let the redtops and rightwing broadsheets howl, let the remains of the red wall crumble, let the Scots turn back to the fold. It is of no concern.
For its own public opinion, the EU is right to talk tough and act tougher. Frustration over the slow vaccine rollout simmers, and if the UK starts hogging vaccines, instead of seeking a reasonable solution, it might boil over. I would not put it past the Dutch and French government to block the ports completely for traffic to and from Britain, which would be a disaster for all, but more for the UK than for mainland Europe.
The main victims of this spat are the people of Northern Ireland, caught in the middle in an increasingly vicious conflict. It is mainly because of them that this was a major mistake. And here, the loss of reputation of the EU is arguably most important. There are two factors to consider, however.
Firstly, HMG has not exactly covered itself in glory regarding NI, permitting the customs border to be established. This decision has far greater consequences than a botched and withdrawn political move.
Secondly, the joust for Northern Irish favour is a longer-term question, less dependent on short-term decisions in an emergency than on the economic, demographic and political developments in the UK, NI and ROI. The EU might have hardened opinion among the firm unionists, but it was hardly going to convince them quickly anyway.
Hence, my opinion is that the triggering of Article 16 was a mistake, but one whose importance is deemed greater by the commentariat than it will be either in public opinion or in real politics.
(Thank you for your thorough comments!)
Not sure why you and others feel this is about the UK “hogging”.
The UK invested 7x as much per capita in vaccines and a lot of careful planning and coordination, as did the US. The EU chose a different route. Nothing wrong with solidarity as an ideal, everything wrong with the choice of execution. It was slow, cheap and lax. National politics got in the way if industrial and policy logic. The EU has run out of vaccines before AZ has even been approved. The citizen anger is about the EU being late and short. Kyriakides and UvL are trying to distract from their own mistakes.
Far from hogging, the UK has said it will give up surplus. It has tried to stay out the row – for once avoiding the Brexit bs – but the EU has repeatedly painted it as the culprit. Macron’s comments last night disparaging the vaccine border on criminal given the huge anti-vaxx problem in France.
I dont think one can be so blasé about Art 16. It is very hard to see the EU’s actions as anything than a deliberate decision to go nuclear. The humiliating backdown came after the realization of what the US would do sunk in. It wont just blow over. The EU showed contempt for its own rules based system and at a stroke trashed goodwill with both Ireland and the US. It takes real incompetence to make the UK look good on Ireland. The Keystone Cop duo managed that in less than a day.
Nor will the export restriction provisions do it any good. Countries like Japan, Canada and Australia are going to remember for a long time that the EU is willing to sacrifice “friends” to cover its own mistakes.
For supporters of the EU this is deeply shaming. Certainly it makes the UK opposition to federalism a lot more understandable even if that should not have ended in Brexit.
The EU has form on poor crisis management and CYA. Gavin Hewitt’s Lost Continent details the shambles of committee management on the Euro crisis. In 2010 Alistair Darling attend a crisis meeting out of courtesy as the Coalition was being formed. He offered sympathy but declined to pay for the Euro mess, noting also that he could not speak for the incoming government. Led by Sarkozy, EU leaders laid into him personally and accused the UK of selfishness and obstruction. He was too stunned and polite to point out the obvious….
Beyond the cash per capita investment of both UK and US, both also invested in lots of of non-cash ways to facilitate companies: helping with trial recruitment, helping set up supply chain, basically doing anything reasonable to remove obstacles to getting actual people vaccinated. For UK and US pharma are partners in the common goal getting jabs in arms; I think it is fair to note that the EU took its own approach and had its own attitude towards pharma.
An extraordinary thing is that nobody at the Commission thought to discuss their move with the government of Ireland.
After 4 years of Brexit negotiations in which a key consideration throughout was the interest of the Republic of Ireland, to the extent that the interests of bigger countries like France and Germany were put second, it is a surprise to see the EU Commission failing to consult its member.
The Northern Ireland First Minister managed to say that Ireland would be better if it was a “sovereign nation” on the the BBC this morning. Which is a bit rich!
You missed an opportunity to rejoice in the irony of the EU complaining about the “current lack of transparency” in others, while being unwilling to supply unredacted documents that are in the public interest.
Love your posts!
Our best analysis of bad decisions and outright stupidity, here in Britain, is rooted in the certainty that someone stupid was involved in it.
Elsewhere, I find it useful to look further when someone clever and capable does something foolish: ask, first, “am I the fool?”, in assuming they were wrong, when they are far better-informed than you and I.
Yes, someone made a bad decision: now we know exactly what that decision was, and the legal framework in which it existed.
The politics of the mistake are still playing out, but it all appears to be “Lets all work very hard indeed to forget this ever happened”
The unanswered question is “Why?”
Bad decisions happen for many reasons or none, and even the most capable managers and politicians sometimes make mistakes for no particular reason.
Inept and corrupt ones make them all the time, but I doubt that this is true of the Commission: they are an exemplary bureaucracy and they weed out the inept and the incompetent.
I mention all this, because the most common reason for a bad decision by a capable manager or officer is fear, and anyone in a position of responsibility is rightly frightened by the Covid-19 pandemic.
In general terms, the most likely explanation lies there: fear has pushed a capable administrator into making a bad decision.
On the whole, I’d leave it there.
But what if they were right? Is there something specific, or even something concrete, that pushed them into their decision?
Northern Ireland is a place where corrupt and dangerous and violent things happen, and everyone finds it prudent to look the other way: what might someone competent imagine that they saw there?
Consider the context: a country where an ineffective government sees the pandemic as an opportunity to divert tens of billions of pounds to political insiders in opaque ‘contracts’ to supply nonexistent or substandard protective equipment and tracking services.
The magnitude of such failures, if failures they be, is, staggering – frightening, even – and the sums of money involved are far, far greater than a mere ‘black market’ undermining the equitable distribution of essential supplies: billions of pounds, andany one of those billions is enough to destabilise the EU’s vaccine distribution programme and the fragile politics supporting it.
Context: one of the political players in Northern Ireland acted as a conduit for tens of millions of dollars, source undisclosed, in a successful political campaign to destabilise the EU.
So the shadows and fears that we and others see in Northern Ireland have substance: and that is the context, and the fear, around the bad decision we’re discussing here.
Again, that is sufficient explanation of the pressures that propel a bad decision.
But I would urge you all to file away a small doubt, a question that might have an unpleasant answer: is there something specific, something concrete, in those fears?
Equally as intriguing as the European Commission’s shenanigans yesterday, is the fact that the debacle presented the UK government with an opportunity to try to unpick the NI Protocol (as the DUP have been asking them to do for some time) – but the UK government chose instead to defend the Protocol (for now at least).
Good spot.
From the Guardian piece: “the commission had said it wanted to trigger a clause in the withdrawal agreement to allow it to [b]control exports between the south and north[/b] of the island of Ireland.”
I don’t think that [the part highlighted – hopefully – in bold] is accurate in terms of how the suspension of the Protocol would have worked out in practice. Vaccines aren’t manufactured anywhere in Ireland, and so the Irish government will only be importing them for domestic distribution, not exporting them north across the border in any realistic scenario. NI will of course continue to get its supply from GB.
What the ham-fisted move by the Commission to trigger Article 16 was about, was attempting to ensure that any ban on exports of vaccines from mainland EU nations (such as Belgium when Pfizer is manufactured) into NI, wouldn’t fall foul of the NI Protocol (which otherwise treats NI as part of the EU Single Market for export purposes).
So the Article 16 move could be considered as ‘reinforcing the border’ in terms of how it would’ve treated NI and RoI as separate entities for the purposes of flying vaccines from mainland Europe to Ireland. But it would not have ‘hardened the border’ in terms of generating enhanced checks on vaccines actually crossing the land border. Because in reality, that isn’t a route (RoI->NI) by which vaccines would be flowing in any realistic scenario.
However, the blunder did provide grist to the DUP’s mill, allowing them to put accusations of hypocrisy towards the EU (in pursuance of the DUP’s own aim of getting rid of the Protocol). So it was certainly an unwise move on the Commission’s part.
I have to be honest, when I first read the Protocol some time ago it had not occurred to me that the “societal” difficulties referred to in the agreement could include things not even happening on the island of Ireland. This seems to greatly widen the circumstances under which either party might invoke it beyond what I, in my limited thought, would have previously guessed.
“Instruments within instruments within instruments.”
In the fields of mathematics / computer programming this is referred to as “recursion”. Just an observation, not intended as adverse criticism.
Is there any evidence of any impermissible diversion of vaccine or precurors, or disruption to EU distribution, involving Northern Ireland at the moment to justify taking emergency action? Presumably not as the Regulation was withdrawn. Without it, it seems a stretch to say this action was “strictly necessary” or would “least disturb” the Protocol.
But assuming there is a real concern about the possibility of such happening in the future – and even if this was all just an attempt to send a political message, or to draw attention away from the weakness of its position regarding AstraZeneca (neither good uses of a legal instrument) – the Commission could have achieved its aims by announcing its readiness to take action under Article 16 *if necessary*.
Tactical errors and a strategic mistake. The Commission must be really rattled.
Was Article 16 ever invoked?
Absent proof of the regulation being published in the OJ, which no-one has yet provided, I suggest it was never brought in to force, and hence Article 16 was never triggered.
That can be deduced from Article 4 of the regulation which stated “This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union. ” .
So even if it had been published in the OJ, it would not have come in to force until the 30th. What was eventually published in the OJ on the 30th had that Article altered to come in to force the same day.
The OJ is here, and one can easily search what was published: https://eur-lex.europa.eu/oj/direct-access.html
A thing can be adopted by the commission but it is not of legal effect until publication in the Official Journal.
The adoption is the invocation.
“The essence of the European Union is process, or it is nothing.”
You could probably say the same of the Mafia.
Or of habitual commenters on blogs.