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Part II - EU Governance of the Protocol

Published online by Cambridge University Press:  20 January 2022

Christopher McCrudden
Affiliation:
Queen's University Belfast

Summary

Type
Chapter
Information
Publisher: Cambridge University Press
Print publication year: 2022
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3 Legal Structure, Rights and Enforceability

Paul Craig
3.1 Introduction

Brexit was a complex political process and this was no less so legally. It entailed five principal legal instruments. There were two treaties: the Withdrawal Agreement (WA), which settled the terms on which the UK left the EU;Footnote 1 and the Trade and Cooperation Agreement (TCA), which contained the detailed provisions as to the relationship between the UK and the EU on trade and other issues.Footnote 2 The three principal UK statutes are the European Union (Withdrawal) Act 2018 (EUWA 2018), which dealt with the acquis of EU law within the UK post-withdrawal; the European Union (Withdrawal Agreement) Act 2020 (EUWAA 2020), which gave legal force in UK law to the WA, in part by amending EUWA 2018; and the European Union (Future Relationship) Act 2020 (EUFRA), which incorporated the TCA into UK law. The focus of this chapter is on private rights that flow from the preceding instruments. This is a complex topic, not all dimensions of which can be addressed within the available space. The discussion will therefore concentrate on four such issues, which are central to the post-Brexit schema and to the situation in Northern Ireland.

3.2 The TCA, EUFRA and Rights

The TCA contains a plethora of enforcement provisions.Footnote 3 The present focus is as to whether it has direct effect, or anything analogous thereto. The answer would appear to be negative, given the wording of Article 5, which provides:

Without prejudice to Article SSC.67 of the Protocol on Social Security Coordination and with the exception, with regard to the Union, of Part Three of this Agreement, nothing in this Agreement or any supplementing agreement shall be construed as conferring rights or imposing obligations on persons other than those created between the Parties under public international law, nor as permitting this Agreement or any supplementing agreement to be directly invoked in the domestic legal systems of the Parties.

The TCA would seem therefore to be unequivocally clear: it does not create direct effect and it takes effect solely as an international law obligation between the contracting parties. This prima facie conclusion must, however, be seen in the light of section 29 EUFRA, which states:

Existing domestic law has effect on and after the relevant day with such modifications as are required for the purposes of implementing in that law the Trade and Cooperation Agreement or the Security of Classified Information Agreement so far as the agreement concerned is not otherwise so implemented and so far as such implementation is necessary for the purposes of complying with the international obligations of the United Kingdom under the agreement.

The rationale for section 29 is temporal exigency. The normal procedure for addressing inconsistencies between a treaty and existing UK law is through statutory instruments, facilitated by so-called Henry VIII clauses.Footnote 4 Section 31 EUFRA contains the now routine Henry VIII clause. However, the TCA was agreed at the eleventh hour, and there was therefore no time to make the requisite statutory instruments. Section 29 was the legislative response to this problem.

It is important to note that it is not merely an interpretive obligation. It is expressive of substantive change: existing law ‘has effect’ on and after exit day with such ‘modifications’ as necessary to implement the TCA, assuming that the inconsistency has not otherwise been addressed. The phrase ‘existing law’ can clearly cover the common law as well as statute. Common law provisions that are inconsistent with the TCA will, therefore, fall within section 29.

The salient issue for present purposes is whether section 29 EUFRA renders the TCA directly effective in national courts, notwithstanding Article 5 TCA. There are two conceptual issues to be borne in mind in this respect.

The first is the duality of meaning as to direct effect. It is sometimes used to connote individual rights, also known as subjective direct effect, in the sense of subjective rights, as that phrase would be understood in civil law systems. It is also used in a looser sense, sometimes known as objective direct effect, connoting the idea that a provision of EU law that is sufficiently certain and precise can be legally invoked by an individual.Footnote 5 The second is the duality attendant on statutes and rights as a matter of UK domestic law. A statute may create enforceable rights for individuals, but it will not always do so. It may grant powers or impose duties on a public body or private party, which may not be enforceable by an individual. This is attested to by, for example, the law relating to standingFootnote 6 and breach of statutory duty.Footnote 7 It might therefore be argued that section 29 would not in all instances necessarily generate actionable rights that flow from the TCA. This may be so, but it is nonetheless difficult to deny that it could do so. The salient issue is whether the particular pre-existing statute is amenable to enforcement, or reliance on, by a private party. Consider the following examples.

Scenario 1 is an instance of collateral attack. A customs authority sues a trader for non-compliance with existing UK customs law. The trader responds by claiming rightly that the customs law is inconsistent with TCA provisions, and that therefore the national law must now, in the light of section 29, bear a meaning that is consistent with the TCA. If the trader can successfully make this argument, then it is able to rely on TCA provisions in national law. The conceptual foundation for this is UK law, in the form of section 29, which carries the force of parliamentary sovereignty. However, the consequence is that TCA provisions thereby become enforceable in national courts.

Scenario 2 takes the form of direct attack. A trader instigates an action concerning public procurement. It argues that existing UK law embodies procedures that are inconsistent with the TCA provisions on procurement, and that therefore, in accord with section 29, the existing law must have effect with the requisite modifications. It can be assumed for the sake of argument that procedures such as those in the TCA would be regarded as giving rise to individual rights if they were embodied in a UK statute. If the trader can do this, then it is able to rely on TCA provisions in national law.

We will have to await the view of the Supreme Court on the preceding issues. The following considerations are relevant in this regard. It might appear counter-intuitive for the TCA to be legally enforceable in UK courts, given the wording of Article 5. However, it would be highly problematic for the defendant/claimant in the previous scenarios not to be able to rely on the TCA provision. There would, for example, be profound legal problems with enabling a customs authority to sue a trader on the basis of a law that no longer contains the legal provisions that constitute the offence, since they have been ‘modified’ and ‘have effect’ subject to the TCA through section 29 EUFRA.

It should also be borne in mind that Article 5 TCA is not denuded of all effect, even if some form of direct effect operates through section 29 EUFRA. This is because it operates only in relation to existing law, and therefore the denial of direct effect in the TCA would continue to operate in relation to post-EUFRA legislation. Thus, a trader could not rely on the TCA to complain that legislation enacted in 2021 was inconsistent with the TCA. The other limit is that section 29 operates only where there is existing law that is inconsistent with the TCA. It does not cover the situation where there is no national law on the matter.

The final consideration is that insofar as Article 5 TCA is compromised, it is through the will of Parliament as expressed in section 29 EUFRA. This is important, given that this Article is framed in terms ‘nothing in the TCA shall be construed’ as giving rise to enforceable rights. This does not preclude Parliament from choosing to do so, or enacting legislation that has this effect, more especially given that section 29, thus construed, would avail UK and EU traders alike, assuming that the existing UK law was inconsistent with TCA provisions.

3.3 The TCA, the Level Playing Field and Rights

The TCA level playing field provisions cover a variety of areas: competition, subsidies, state-owned enterprises, taxation, labour and social standards, environment and climate, other instruments for trade and sustainable development, and horizontal provisions. The Political Declaration attached to the WA attested to the centrality the EU accorded to the level playing field restrictions.Footnote 8 Prime Minister Theresa May was willing to accept such regulatory alignment, since it would facilitate the frictionless trade that she sought.Footnote 9 When Boris Johnson became Prime Minister, he made clear that his stance towards the trade negotiations was markedly different. This became readily apparent from his Greenwich speech,Footnote 10 and from the UK’s Negotiation Document.Footnote 11 The latter document affirmed that the UK would no longer be part of the EU Customs Union or Single Market.Footnote 12 It stated, moreover, that the envisaged agreement would be between sovereign equals and that the government would not ‘negotiate any arrangement in which the UK does not have control of its own laws and political life’. The UK would not therefore ‘agree to any obligations for our laws to be aligned with the EU’s, or for the EU institutions, including the Court of Justice, to have any jurisdiction in the UK’.Footnote 13

The TCA reflects the hard-fought battles over the parties’ degree of freedom and constraint on these issues. It is evident in the very preamble to the TCA, and the same duality runs through the substantive text. The provisions are complex and are examined in detail in later chapters.Footnote 14 The present discussion focuses on two general issues that pertain to private rights and the level playing field provisions.

3.3.1 Private Rights and the Level Playing Field: Conceptual Relationship

The first issue is the conceptual relationship between the level playing field provisions that generate rights of action in national courts and Article 5 TCA. The latter, as noted in Section 3.2, provides that, subject to limited exceptions, the TCA does not generate rights. The level playing field provisions are not one of the two exceptions to Article 5. This then begs the question as to the relationship between the level playing field provisions stipulating rights of action in national courts, and the denial of direct effect for the TCA.

The answer is as follows. If the UK, as a contracting party to the TCA, failed to provide for the rights specified in the TCA level playing field provisions concerning causes of action in national courts, and judicial review, an individual could not argue in a UK court that the obligation to provide for such measures generated rights that were enforceable in national courts. Such an argument would be precluded by Article 5 TCA. The failure to fulfil such obligations would generate other TCA remedial mechanisms, but it could not be redressed through an action brought by an individual in a UK national court, since the relevant TCA provisions are not directly effective.

3.3.2 Private Rights and the Level Playing Field: UK Implementation

The second issue is related, but distinct. It concerns the scope of the rights granted by the level playing field provisions and whether they can be effectuated by existing UK law. The provisions concerning subsidies can be taken by way of example.

The TCA contains remedial obligations to effectuate the substantive duties in relation to subsidies.Footnote 15 Each party must establish an independent body that must have an ‘appropriate role in its subsidy control regime’,Footnote 16 which in the UK will be the Competition and Markets Authority. There must be access to courts/tribunals to review subsidy decisions to ensure compliance with the relevant TCA principles and conditions, and to hear interested parties that have standing under that party’s law. The parties must ensure that courts/tribunals have power to impose remedies, including suspension, prohibition or requirement of action by the granting authority, the award of damages, and recovery of subsidy from its beneficiary, if and to the extent that they are available under the respective laws on the date of entry into force of the TCA.Footnote 17 Private enforcement takes the form of an action brought by an interested party before the relevant UK court.Footnote 18 The TCA specifies that each party shall have in place an effective mechanism of recovery in respect of subsidies, without prejudice to other remedies that exist in that party’s law. The court must be able to order recovery where, for example, the subsidy has been granted in breach of the principles contained in the TCA, or where the grantor of the subsidy acted outside its powers.Footnote 19

The remedial obligations are, however, qualified, although the nature of the qualification is itself contestable. Articles 372(3)–(4) TCA state:

  1. (3) Without prejudice to the obligations to maintain or, where necessary, to create the competencies, remedies and rights of intervention referred to in paragraphs 1 and 2 of this Article, and Article 373, nothing in this Article requires either Party to create rights of action, remedies, procedures, or the scope or grounds of review of decisions of their respective public authorities, beyond those existing under its law on the date of entry into force of this Agreement.

  2. (4) Nothing in this Article requires either Party to widen the scope or grounds of review by its courts and tribunals of Acts of the United Kingdom Parliament, of acts of the European Parliament and the Council of the European Union, or of acts of the Council of the European Union beyond those existing under its law on the date of entry into force of this Agreement.Footnote 20

There is clearly a tension in Article 372(3). Indeed, it might even be that the two halves were drafted by different contracting parties and then bolted together. The provision is best read as stating that the contracting parties have a Treaty obligation to maintain or create the relevant remedies and rights of intervention thus specified, but not if this requires the creation of rights or action etc, or grounds of review, of a kind that go beyond those in existing law. The salient point for present purposes is that UK law does contain principles of judicial review that allow a court to suspend, prohibit or require action to be taken by the granting authority.Footnote 21 These principles can, without conceptual difficulty, be applied to cover non-compliance with the conditions for the award of subsidies contained in the TCA. UK law also has tortious causes of action for the award of damages, provided that the requisite criteria for the particular action are met.Footnote 22

There is a further limitation, which precludes recovery of a subsidy when it is granted ‘on the basis of’ an Act of Parliament,Footnote 23 and UK governments might be tempted to give these words a broad interpretation, to prevent recovery where a minister grants aid pursuant to statutory discretionary power. This does not, however, render the subsidy lawful, and the other remedial duties continue to apply. Thus, an action could still be brought to prevent the subsidy being given, or to claim damages if it was awarded contrary to the TCA criteria. This possibility is in turn subject to Article 372(4) TCA, set out above, which would preclude an action if the subsidy was directly mandated by a statute. If such an award were in breach of the TCA subsidy provisions it could nonetheless lead to the triggering of other remedial mechanisms, in particular those relating to public enforcement between the contracting parties.

3.4 The EUWA 2018, Retained Law and Rights

The EUWA 2018 served primarily to convert the EU legal acquis into UK law. The rationale for the legislation is readily apparent.Footnote 24 The UK had been a member of the EU since 1972, and many areas of life were regulated by EU law. Directives were already transformed into UK law. There was, however, much EU law, such as regulations, that was directly applicable, taking effect in domestic law when enacted by the EU, without the need for further national legislation. The regulatory architecture in any area was typically an admixture of Treaty provisions, directives, regulations and decisions. It would, in theory, have been possible to reject this regulatory material in the event of Brexit. This would, however, have led to chaos. The EU rules regulated matters from product safety to creditworthiness of banks, from securities markets to intellectual property and from the environment to consumer protection. There could not simply be a legal void in these areas, and pre-existing UK law would often not exist.

This was the rationale for the EUWA 2018, the foundational premise being that the entirety of the EU legal acquis was converted into UK law. Parliament could then decide, in two stages, which measures to retain, amend or repeal. Stage one was to ensure that the EU rules retained as domestic law were fit for legal purpose when the UK left the EU; stage two was the period post-Brexit, when Parliament could decide at greater leisure whether it wished to retain these rules.

An important issue concerns the EUWA 2018, section 3 of which deals with the incorporation of direct EU legislation, such as regulations. It provides that, so far as operative immediately before exit day, it forms part of domestic law on and after exit day. The apposite issue for the present chapter is whether this comes with direct effect in a post-Brexit world, such that individuals can derive rights from regulations when they would have had these prior to Brexit, with the consequence that they can rely on such rights without the need to prove the conditions for breach of statutory duty. There are three arguments in favour of direct effect.

The first is that it coheres with the purpose of EUWA 2018, which was to bring the entire acquis into UK law and then decide what to do thereafter. The second argument is that it is consistent with section 4 EUWA 2018, which brings directly effective rights into UK law, thereby precluding any argument that this is contrary to the intent of the EUWA. The third reason that warrants this conclusion is that it is consistent with section 4(2)(a) EUWA 2018, which provides that section 4(1) does not apply to any rights etc so far as they form part of domestic law by virtue of section 3. This thereby expressly contemplates that rights can flow from regulations that are incorporated via section 3.

3.5 The WA, the Protocol and Rights

The final section of this chapter addresses rights-based issues that pertain specifically to Northern Ireland. The starting point is Article 4(1) of the WA, which states:

The provisions of this Agreement and the provisions of Union law made applicable by this Agreement shall produce in respect of and in the United Kingdom the same legal effects as those which they produce within the Union and its Member States. Accordingly, legal or natural persons shall in particular be able to rely directly on the provisions contained or referred to in this Agreement which meet the conditions for direct effect under Union law.

Article 4(1) thus gives direct effect to the provisions of the WA and the provisions of EU law made applicable by the Agreement, when they meet the requisite conditions for direct effect. This binding treaty obligation was then duly incorporated into UK law, in accord with dualist precepts, through amendment to the EUWA 2018. Section 7 A EUWA made provision for directly effective rights flowing from Article 4(1) to be enforceable in national courts. This was complemented by section 8C EUWA, which concerns Northern Ireland. It empowers a minister of the Crown to make regulations as the minister considers appropriate to, inter alia, implement the Protocol and supplement the effect of section 7 A EUWA in relation to the Protocol. There are multiple opportunities for individuals to bring actions based on rights that flow from the Protocol. Two examples will suffice for present purposes.

An individual might claim that action taken by state authorities is contrary to one of the many Single Market regulations that continue to apply in Northern Ireland post-Brexit. Annex 2 of the Protocol renders a very great many Single Market provisions applicable to Northern Ireland, and many of these regulations, decisions and directives fulfil the conditions for direct effect as developed by the CJEU. Thus, provided that the particular article of the regulation, directive or decision is sufficiently precise, certain and unconditional, it will generate rights that can be enforced in national courts. There will also be horizontal direct effect for provisions of EU regulations and decisions that continue to apply in Northern Ireland, provided that they meet the preceding criteria. They can therefore be enforced against private parties, as well as emanations of the state. The courts in Northern Ireland will adjudicate on such claims, and insofar as any such case relates to Articles 5, 7–10 of the Protocol, there might then be a reference to the CJEU pursuant to Article 12(4) of the Protocol.

Consider a second example, which concerns the powers of EU institutions within the UK. EU institutions are accorded powers pursuant to Article 12(4) of the Protocol. It provides:

As regards the second subparagraph of paragraph 2 of this Article, Article 5 and Articles 7 to 10, the institutions, bodies, offices, and agencies of the Union shall in relation to the United Kingdom and natural and legal persons residing or established in the territory of the United Kingdom have the powers conferred upon them by Union law. In particular, the Court of Justice of the European Union shall have the jurisdiction provided for in the Treaties in this respect. The second and third paragraphs of Article 267 TFEU shall apply to and in the United Kingdom in this respect.

This is further reinforced by Article 12(5), which stipulates that the actions of such Union bodies have the same legal effect as those they produce when such bodies act within the EU. It follows that an individual could argue that action by Northern Ireland authorities was invalid because it was inconsistent with imperatives flowing from such EU institutions.

3.6 Conclusion

This chapter has addressed some of the difficult issues concerning rights and enforceability that flow from the WA, the TCA and the principal UK legislation dealing with Brexit. Exigencies of space mean that not all such matters have been considered. There will doubtless be litigation that addresses these issues, and resolves some of the uncertainties raised in the preceding discussion.

4 The Committees of the Protocol

Katy Hayward
4.1 Introduction

The implementation of the Protocol is governed by three UK–EU institutions established by the Withdrawal Agreement (WA). The Joint Committee (JC) is to oversee the implementation and application of the WA and the Protocol.Footnote 1 The Specialised Committee on the Implementation of the Protocol on Ireland and Northern Ireland (INISC) is to facilitate and administer the Protocol.Footnote 2 The Joint Consultative Working Group (JCWG) is for the ‘exchange of information’ and ‘mutual consultation’ between the UK and the EU,Footnote 3 which then informs the work of the INISC. The rules of procedure for the JC and all six Specialised Committees are set out in Annex VIII of the WA. Each body comprises, and is co-chaired by, representatives from the EU Commission and the UK government. Aside from governance, they are important mechanisms for formal and informal dialogue between the two sides. This chapter summarizes the constitution, remit and operation of each of them, as set out in the WA and as they operated in practice during the first months of their establishment.

4.2 The Joint Committee
4.2.1 The Formal and Informal Joint Committee

The JC is the only decision-making body overseeing the WA, drawing on recommendations from the Specialised Committees. The JC will make all its decisions and recommendations ‘by mutual consent’.Footnote 4 It follows that the JC cannot act if either the UK or the Commission is not in agreement. Almost immediately after it came into effect on 1 February 2020, the Protocol was a source of tension in the UK–EU relationship precisely because it required agreement and co-operation between them. The JC has been key to enabling progress to be made in such circumstances, but not in the way strictly envisaged by the WA.

The JC is to be chaired by members of the EU Commission and the UK government, although they can designate high-level officials to act as their alternates.Footnote 5 The fact that the JC is led by senior political representatives from the two sides is a double-edged sword. The first co-chairs of the JC were European Commission Vice-President Maroš Šefčovič and the UK Chancellor of the Duchy of Lancaster, the Rt Hon Michael Gove. Lord Frost, Prime Minister Johnson’s chief negotiator for exiting the EU (July 2019–January 2020) and subsequently chief UK negotiator in the UK–EU Trade and Cooperation Agreement (TCA) negotiations in 2020, was made Minister of State in the Cabinet Office and (unusually) a full member of the UK Cabinet on 1 March 2021. He replaced Minister Gove as co-chair of the JC.Footnote 6

The JC is to meet at least once a year, and at the request of the EU or the UK. The first meeting of the JC was held on 30 March 2020 and in the intervening twelve months it had five further official meetings, plus an extraordinary meeting (10 September 2020) in response to the UK Internal Market (UKIM) Bill in which the UK government proposed to equip its ministers to breach the obligations of the Protocol. In a context of high stakes over the TCA negotiations and the Protocol implementation, the political standing of the co-chairs enabled them to opt to meet informally in so-called political meetings. The first such meeting, on 7–8 December 2020, allowed the two to negotiate a breakthrough (and, in the UK case, resulted in the withdrawal of the offending UKIM clauses). The joint statement from Minister Gove and Vice President Šefčovič after that meeting paved the way for the decisions to be approved in the official meeting of the JC they chaired eleven days later.Footnote 7 Informal meetings between the co-chairs remained important in the first few months of implementing the Protocol, especially against the backdrop of a UK–EU dispute.Footnote 8

4.2.2 Dispute Settlement and the Joint Committee

Within two days of Lord Frost’s appointment, the UK government announced unilateral action to extend the ‘grace periods’ for the Protocol’s implementation.Footnote 9 In Lord Frost’s call to Vice President Šefčovič later that day (classed by the UK government press release as their ‘first meeting’), he described the measures as ‘the minimum necessary steps to allow time for constructive discussions in the Joint Committee’.Footnote 10 The notion that in an informal ‘meeting’ a co-chair can justify action that their counterpart would not consent to in an official meeting represents a peculiar use and interpretation of the role of the JC. The UK co-chair is far freer than their EU counterpart (the Commission being very different from a sovereign government) to engage in such game-playing. This can be problematic, not least given the importance of the JC as the forum for dispute resolution.

Resolving disputes by consensus is a core function of the JC. Each party may refer ‘any issue relating to the implementation, application and interpretation’ of the WA to the JC.Footnote 11 In the event of this happening, ‘[t]he Union and the United Kingdom shall endeavour to resolve any dispute regarding the interpretation and application of the provisions of this Agreement by entering into consultations in the Joint Committee in good faith, with the aim of reaching a mutually agreed solution’.Footnote 12 If no resolution to a dispute sent to the JC is found within three months, the issue will be referred to the arbitration panel, whose decision will be final and binding.Footnote 13 In matters where the arbitration panel requires an interpretation of EU law, the arbitration panel must ask for the European Court of Justice’s ruling on the matter. It is notable that when the EU commenced legal proceedings against the UK for breaching the substantive provisions of the Protocol in September 2020 and March 2021, the JC co-chairs resorted to informal meetings. The behind-scenes negotiations and political bargaining have thus been shown to play an important, if unofficial, part in the dispute settlement role of the JC.

4.2.3 The Operation of the Joint Committee

Officially, the JC is to hold its meetings alternately in Brussels and London. In practice, it met in virtual and in hybrid form (a mix of in-person and videoconferencing) during the Covid-19 pandemic. Where appropriate and by decision of the co-chairs, experts or others may be invited to attend meetings of the JC. Following a UK government commitment in the New Decade, New Approach document, which saw the restoration of power-sharing in Northern Ireland in January 2020, representatives from the Northern Ireland Executive are invited to be part of the UK delegation in meetings of the JC.Footnote 14 These invitations will happen only in instances where the Committee concerned is discussing Northern Ireland–specific matters and which are also attended by the Irish government as part of the EU’s delegation.Footnote 15 Representatives from EU member states are also allowed to attend official JC meetings.Footnote 16

According to the JC’s rules of procedure, the provisional agenda for each meeting of the JC is to include items requested by the Union or the UK. The agenda for the first six regular meetings typically saw a stocktake on the work of the Specialised Committees and an update on WA implementation. It became evident by late 2020 that the Protocols on Citizens’ Rights and on Ireland–Northern Ireland would demand the most attention from the JC, given the evolving conditions and the emerging issues from these that the JC must oversee.

4.2.4 The Powers of the Joint Committee

The UK and the EU are obliged to implement the JC’s decisions, which will have the same legal effect as the WA itself.Footnote 17 At no point is there an obligation for the UK or the European Parliament to discuss such issues, and neither will be asked or required to ratify decisions taken by the JC as a rule.Footnote 18 The scope and effect of the Protocol will evolve under the oversight of the JC. This will happen in three main ways. First, until the end of 2024, the JC has the authority under Article 164(5) of the WA to adopt decisions amending it (including the Protocol), ‘provided that such amendments are necessary to correct errors, to address omissions or other deficiencies, or to address situations unforeseen when this Agreement was signed, and provided that such decisions may not amend the essential elements of this Agreement’.Footnote 19 Second, Protocol Article 13(3) provides for dynamic alignment to specific areas of the EU acquis. Where planned Union acts amend or directly replace EU acts listed in the Protocol, they will be automatically updated and apply in Northern Ireland. In principle, they cannot be blocked by the UK. Third, under Article 13(4) of the Protocol, the JC will decide whether a new EU law which falls within the scope of the Protocol should apply in Northern Ireland. The procedure for this is that the EU informs the UK of such a newly adopted act, initially through the JCWG to allow the UK to consider it, with clarification and consultation being offered through that channel as needs be. The debate in the JC will centre on whether such acts are necessary for the ‘proper functioning of the Protocol’. The JC shall then either add the new act to the relevant Protocol annex or, where the UK objects, ‘examine all further possibilities to maintain the good functioning of this Protocol and take any decision necessary to this effect’.Footnote 20 This second sub-paragraph grants considerable power to the JC in influencing how the Protocol functions. In the absence of a decision by the JC, the EU may take ‘appropriate remedial measures’.

4.2.5 The Remit of the Joint Committee

The JC has a broad and substantial remit. This includes deciding the tasks of the Specialised Committees, supervising their work, establishing new Specialised Committees, and disestablishing existing Specialised Committees. It is also charged with ‘preventing problems’, resolving disputes and considering ‘any matter of interest’ relating to the WA. And it must issue an annual report on the functioning of the WA (something the Secretariat failed to do by the 1 May deadline after its first year).Footnote 21 With respect to the Protocol, the JC was tasked with particular responsibilities to complete during the transition period. This included setting the criteria for goods entering Northern Ireland from outside the EU (including GB) to manage the risk posed to the Single Market.Footnote 22 The fifth formal meeting of the JC included several decisions about the operationalization of the Protocol, plus a set of time-limited unilateral declarations which allowed ‘grace periods’ on the full application of EU rules on heavily regulated areas, including medicines and chilled meat products.

The temporary yet all-important nature of these arrangements was shown in the fact that, six months later, in June 2021, the Commission announced a package of measures aimed at addressing some of the challenges that had arisen for movement across the Irish Sea under the Protocol. This included agreeing to a further extension of the grace period for the movement of chilled meats from GB to Northern Ireland until 30 September 2021, proposing an amendment to EU law on medicines to ensure the continued long-term supply of medicines from GB to Northern Ireland, and facilitating the movement of guide dogs accompanying travellers from GB to Northern Ireland.Footnote 23 The fact that this was not, however, officially a joint decision by the JC reflected the strains in the political relationship and the consequent tendency during the early implementation of the Protocol to act unilaterally or (at best) in parallel, rather than jointly through the JC despite its considerable powers.

The JC has six particular areas of responsibility: defining ‘at risk’ goods;Footnote 24 the operation of the UK Trader Scheme;Footnote 25 application of value added tax (VAT) and excise rules;Footnote 26 agricultural support scheme limits;Footnote 27 working arrangements for EU presence in NI;Footnote 28 proposing the alternative for Articles 5–10 of the Protocol if the Northern Ireland Assembly withholds its consent for their continued application.Footnote 29 All these point to the breadth and significance of the future decisions of the JC for Northern Ireland.

4.2.6 The Monitoring and Reviewing Role of the Joint Committee

The JC carries extraordinary responsibility when it comes to keeping under constant review three dynamic processes that are very consequential for the UK and Ireland. First, relating to the movement of goods to and from Northern Ireland, it is to review the facilitation of trade within the UK:

Having regard to Northern Ireland’s integral place in the United Kingdom’s internal market, the Union and the United Kingdom shall use their best endeavours to facilitate the trade between Northern Ireland and other parts of the United Kingdom, in accordance with applicable legislation and taking into account their respective regulatory regimes as well as the implementation thereof. The Joint Committee shall keep the application of this paragraph under constant review and shall adopt appropriate recommendations with a view to avoiding controls at the ports and airports of Northern Ireland to the extent possible.Footnote 30

Second, relating to cross-border co-operation on the island of Ireland: ‘The Joint Committee shall keep under constant review the extent to which the implementation and application of this Protocol maintains the necessary conditions for North-South cooperation. The Joint Committee may make appropriate recommendations to the Union and the United Kingdom in this respect, including on a recommendation from the Specialised Committee.’Footnote 31

Finally, the JC has the power to review and terminate arrangements arising from its decisions made just before the end of the transition period. These cover ‘at risk’ goods, the authorization for trusted-trader status and exchange of information in relation to customs and the movement of goods.Footnote 32

If either Party considers there is significant diversion of trade, or fraud or other illegal activities, that Party shall inform the other Party in the Joint Committee by 1 August 2023, and the Parties shall use their best endeavours to find a mutually satisfactory resolution of the matter. If the Parties do not find a mutually satisfactory resolution, Articles 3(1)(a)(ii), 3(1)(b)(ii) and 5 to 8 of this Decision shall cease to apply from 1 August 2024, unless the Joint Committee decides before 1 April 2024 to continue their application.Footnote 33

If they do cease to apply, then the JC shall ‘make appropriate alternative provision applicable from 1 August 2024, having regard to the specific circumstances in Northern Ireland and fully respecting Northern Ireland’s place in the United Kingdom’s customs territory’. Thus, the JC retains a responsibility to meet the objectives of the Protocol at the same time as it is charged with monitoring and reviewing its implementation, making decisions on its scope and evolution, and maintaining dialogue between the UK and the EU.

4.3 The Specialised Committee on Ireland–Northern Ireland
4.3.1 The Operation of the Specialised Committees

The JC is supported by six Specialised Committees ranging over the gamut of issues relevant for the operation of the WA, co-chaired by senior officials from the EU Commission and the UK government.Footnote 34 Unless the co-chairs decide otherwise, the Specialised Committees shall meet at least once a year, but additional meetings may be held at the request of the EU, the UK or the JC.Footnote 35 The Union and the UK can bring ‘any matter directly to the Joint Committee’, so the existence of the Specialised Committees is not allowed to slow down a matter that requires a high-level decision.Footnote 36

The meeting schedule and agenda of the Specialised Committees shall be set by mutual consent. The Specialised Committee on Ireland–Northern Ireland (INISC) met eight times in the first eighteen months of the WA being in effect. For all but one of these meetings, there was no agenda published and where there were statements issued afterwards, these were released separately by the EU Commission and the UK government. The lack of transparency in the operation of the INISC combined with political and media interest in the UK–EU tension over the Protocol meant that there were leaks to journalists from INISC meetings. This had the effect of sending the work of the INISC deeper into the echelons of the Cabinet Office and Commission, and making its formal meetings less frequent than they might otherwise have been. This only intensified the difficulties for Northern Ireland civil servants charged with keeping up with the work of the INISC. Officials from the Northern Ireland Civil Service are present at official INISC meetings at the invitation of the UK government; whether they are kept informed of the background work of the INISC officials is rather more ad hoc. When asked (amid growing political and public tensions over the Protocol implementation in Northern Ireland) in April 2021 for an update on the engagement by the UK and the EU with Northern Ireland stakeholders, including the Executive, and on formal consultation mechanisms to ensure their full participation in the WA institutions, Lord Frost replied that ‘representatives of the NI Executive attend[ed] the JC and the Specialised Committee’ – meetings that had happened four to eight weeks earlier.Footnote 37

4.3.2 The Remit of the Specialised Committee on Ireland–Northern Ireland

The INISC has a broad power to discuss ‘any point … of relevance’ to the Protocol that ‘gives rise to a difficulty’, as raised by either the UK or the EU. It can also make recommendations to the JC as regards the functioning of the Protocol. In so doing, it in turn may receive proposals from the North–South Ministerial Council (covering aspects of policy and governance relating to transport, agriculture, education, health, environment and tourism) and the six North–South Implementation Bodies, which include north–south trade, EU programmes, waterways and food safety. It should also consider ‘any matter of relevance’ brought to its attention by designated bodies relating to the implementation of the Protocol’s human rights provisions, namely the Northern Ireland Human Rights Commission, the Equality Commission for Northern Ireland, and the Joint Committee of representatives of the Human Rights Commissions of Northern Ireland and Ireland. The most it could do with these proposals and issues would be to ‘make recommendations to the Joint Committee’ for decisions.Footnote 38

4.4 Joint Consultative Working Group

The JCWG reports to the INISC on issues related to the implementation of the Protocol. Its rules of procedure were not drafted until nine months into the transition period.Footnote 39 The JCWG exchanges information and acts as a forum for mutual consultation in respect of the Protocol between the UK and the EU. The focus is on ‘planned, on-going and final relevant implementation measures’ relating to changes in EU or UK acts covered by the Protocol. It, too, is co-chaired by the EU and the UK and is composed of representatives of the EU and the UK, who carry out its functions under the supervision of the INISC. There is a degree of flexibility in the composition of participants for each JCWG meeting.Footnote 40 The UK government has committed to including ‘representatives of the NI Executive as part of the UK delegation to the group’.Footnote 41 According to Article 15 and its rules of procedure, JCWG is to meet at least once a month, unless otherwise decided by the EU and the UK by mutual consent. However, its first meeting on Friday 29 January 2021 (a noteworthy day for the Protocol, as it happens) was merely to sign off on its rules of procedure. Its second meeting was not held until 15 April 2021, and no statement or documentation was published in relation to that.

If, as intended, the JCWG meets more frequently than either the JC or INISC, it will form a vital means of communication between officials in the UK and the EU. Along with this comes the potential for keeping Northern Ireland civil servants informed and connected. This is particularly important given the need for Northern Ireland officials to be aware of the evolving regulatory environment as created by the Protocol. Article 15(7) of the Protocol places an obligation on the EU to communicate the views and information shared in the JCWG to ‘the relevant institutions, bodies, offices and agencies of the Union without undue delay’. There is no similar obligation on the UK, despite the obvious need for effective communication on the work covered by the JCWG to institutions, agencies and offices in Northern Ireland.

4.5 Conclusion

A House of Lords European Union Committee Report concluded that the effectiveness of the UK–EU committees established under the WA ‘will depend on the frequency of their meetings, the flexibility of their remit, senior political representation on both sides, and a mutual commitment to effective communication, appropriate powers, and full accountability’.Footnote 42 The operation of the UK–EU bodies during the transition period and in the first few months of ‘Brexit proper’ after the transition period ended has revealed chronic inadequacy in all these areas. This marks an inauspicious beginning for these important new UK–EU institutions.

5 Dispute Settlement

Jan Wouters
5.1 Introduction

This chapter examines the system of dispute settlement that is applicable to the Protocol. This system presents a rather unique combination of, on the one hand, continued jurisdiction of the Court of Justice of the European Union (CJEU) and, on the other hand, an arbitration procedure. As has been rightly observed,Footnote 1 these are two very different enforcement mechanisms. The former (the CJEU) relies on an existing supranational court which monitors respect for the EU legal order, works together with national courts, and allows some measure of access to individuals. The role of the CJEU is controversial: its case law and jurisdiction were one of the political drivers of the proponents of the withdrawal of the UK from the EU. The latter (arbitration), in contrast, represents a much more traditional public international law method that is new and available only to the parties of the Withdrawal Agreement (WA).

5.2 Jurisdiction of the CJEU
5.2.1 Provisions of the Protocol

Regarding the jurisdiction of the CJEU, the Protocol itself contains explicit provisions. Protocol Article 12(4) provides:

As regards the second subparagraph of paragraph 2 of this Article, Article 5 and Articles 7 to 10, the institutions, bodies, offices, and agencies of the Union shall in relation to the United Kingdom and natural and legal persons residing or established in the territory of the United Kingdom have the powers conferred upon them by Union law. In particular, the Court of Justice of the European Union shall have the jurisdiction provided for in the Treaties in this respect. The second and third paragraphs of Article 267 TFEU [Treaty on the Functioning of the European Union] shall apply to and in the United Kingdom in this respect.

In other words, the Protocol confers ‘full jurisdiction’ upon the CJEU to oversee the operation of EU law applying to Northern Ireland in relation to certain areas, essentially to attain the Protocol’s not explicitly stated objective of protecting the integrity of the internal market.Footnote 2 These are: customs and movement of goods (Article 5), as well as the monthly exchange of information on this matter (Article 12(2), second sub-paragraph); technical regulations (Article 7); value added tax (VAT) and excise (Article 8); the Single Electricity Market (Article 9); and state aid (Article 10). This jurisdiction of the Court does not stand alone: it goes hand in hand with the exercise, in these areas, of ‘the powers conferred upon them by Union law’ by ‘the institutions, bodies, offices, and agencies of the Union’, in other words, with the continuous evolution of the acquis of the Union. And that acquis, by Protocol Article 12(5), must produce in the UK ‘the same legal effects as those which they produce within the Union and its Member States’. This means with all the features of EU law, including primacy, direct effect, state liability, and so on. If this does not constitute the acceptance by the UK of a major limitation of sovereignty, notably without any representation of the UK in the decision-making and adjudicatory processes of the EU, it would be difficult to identify what is.

The ‘jurisdiction provided for in the Treaties’ covers the totality of the well-known proceedings before the CJEU, including infringement procedures brought by the Commission and the preliminary rulings procedures based on questions from national courts, both in the UK and in EU member states. There is also the possibility of the imposition of lump sums and penalty payments.Footnote 3

It is interesting to consider which parts of the Protocol do not fall firmly within the competence of EU institutions, bodies, offices and agencies, or within the jurisdiction of the CJEU. The matter is less obvious than it sounds, especially for provisions which cross-reference to Protocol Articles 5 to 10, such as Protocol Article 11, on ‘other areas of North–South cooperation’. The reference to the requirement of consistency with ‘the arrangements set out in Articles 5 to 10’ in that Article seem to imply that, if only indirectly, it cannot be excluded that the jurisdiction of the CJEU may be triggered in the many domains listed there, such as environment, health, agriculture, transport, education and tourism, energy, telecommunications, broadcasting, inland fisheries, justice and security, higher education and sport. On the other hand, where no such cross-reference is included, it seems clear that no powers of EU institutions, bodies, offices or agencies or CJEU jurisdiction apply. This is the case, for instance, with the many provisions of EU law in the area of protection against discrimination, contained in the measures listed in Annex 1 to the Protocol, to which reference is made in Protocol Article 2(1). In other words, although this EU non-discrimination law remains binding on the UK with regard to Northern Ireland, and must be implemented ‘through dedicated mechanisms’, there is no EU competence to enforce these through the regular EU institutions, such as the CJEU.

Delicate questions may arise with regard to Protocol Article 6, ‘protection of the UK internal market’. This Article has not been brought under the jurisdiction of the CJEU, but its first paragraph especially raises intricate questions on judicial protection in case of export restrictions or prohibitions flowing from the application of EU law. It is stipulated that such provisions of Union law ‘shall only be applied to trade between Northern Ireland and other parts of the United Kingdom to the extent strictly required by any international obligations of the Union’. To this is added, somewhat cryptically, the obligation that ‘[t]he United Kingdom shall ensure full protection under international requirements and commitments that are relevant to the prohibitions and restrictions on the exportation of goods from the Union to third countries as set out in Union law’. One may think of export prohibitions or restrictions imposed by binding UN Security Council resolutions. This being said, purely unilateral EU export prohibitions or restrictions, such as, for instance, those imposed in relation to the Covid-19 pandemic, do not appear to fall under this provision.

Two more procedural aspects are dealt with in paragraphs 6 and 7 of Protocol Article 12. Paragraph 6 confirms that lawyers authorized to practise before the courts or tribunals of the UK shall ‘in every respect’ be treated as lawyers authorized to practise before the courts or tribunals of member states.Footnote 4 The latter paragraph stipulates that in cases brought before the CJEU, the UK may participate in CJEU proceedings ‘in the same way as a Member State’ – without, however, any longer having a judge on the Court – and a comparable clause regarding lawyers authorized to practise before UK courts applies with regard to the representation or assistance of a party before the CJEU.Footnote 5

Last but not least, it is important to note that there is no time-limit to the jurisdiction of the CJEU, unless one reads the ‘democratic consent’ clause of Article 18 of the Protocol to be such: it may indeed be such a time-limit if, either within four years after the end of the transition period (ie, by 31 December 2024) or after the end of any subsequent period of four years, the Northern Ireland Assembly votes against the continued application of Protocol Articles 5 to 10. In that case, the CJEU’s jurisdiction will, of course, also lapse, subject to a transition period.Footnote 6

5.2.2 Practical Application

Protocol Article 12(4) came to life in the spring of 2021 with tensions between the UK and the EU regarding the former’s unilateral decisions to delay the application in full of EU law made applicable by the Protocol. The dispute had been building up since December 2020. At the Joint Committee (JC) meeting of 17 December 2020, the UK made a unilateral declaration concerning the certification required for food imports into Northern Ireland, setting out the practice it intended to put in place as regards imports of those products into Northern Ireland, ‘during a maximum time period of three months after the end of the transition period’. The UK had committed itself to the fact that, ‘[d]uring the above-mentioned period of time, the UK authorities will take all necessary measures to ensure compliance with the Protocol and relevant Union law as of 1 April 2021’, and it had accepted that ‘this solution is not renewable’.Footnote 7

However, less than three months later, the UK decided unilaterally to depart from the rules of the Protocol: on 3 March 2021 the Secretary of State for Northern Ireland announced before the UK Parliament that the UK government would extend certain ‘grace periods’ and make provision for further flexibilities not provided for in EU law. Later that day, the UK informed its traders that they could continue to move products of animal origin, composite products, food and feed of non-animal origin and plants and plant products from Great Britain to Northern Ireland without the need for official certification until ‘at least 1 October 2021’.Footnote 8 Furthermore, in early March 2021, the UK had updated its guidance on the sending of parcels to and from Northern IrelandFootnote 9 and on travelling with pets from Great Britain to Northern Ireland,Footnote 10 aspects which had not been the subject of an understanding between it and the EU.

On 15 March 2021, the Commission informed the UK government that it considered the UK’s unilateral action to be a violation of Protocol Article 5(3) and (4), read in conjunction with relevant EU law listed in Protocol Annex 2, and in itself to be a violation of the duty of good faith provided for in Article 5 WA.Footnote 11 The Commission responded in two ways, which interestingly illustrate the two main dispute settlement mechanisms discussed in the present chapter.

First, as regards the substantive breaches of the Protocol, the Commission referred to Protocol Article 12(4) and announced that it was initiating infringement proceedings by sending a letter of formal notice to the UK government pursuant to this provision, in conjunction with Article 258 TFEU. The UK had one month to respond to the formal notice.Footnote 12 On 14 May 2021, the UK government replied.Footnote 13 Around the same time, Lord Frost, the UK’s representative, publicly observed that the Protocol, in its current form, did not meet the challenges that the situation in Northern Ireland posed.Footnote 14 The implementation of the WA, including the Protocol, and the Trade and Cooperation Agreement (TCA) was discussed by the European Council on 24–25 May 2021. The Council ‘invite[d] the Commission to continue its efforts to ensure full implementation of the Agreements’ and stressed that ‘[t]he EU will remain united in its engagement with the UK’.Footnote 15

Second, the Commission considered that the UK’s unilateral measures also violated the duty of ‘good faith’ under Article 5 WA. This provision requires that both parties not only must take all appropriate measures to ensure the fulfilment of the obligations arising under the WA but also must refrain from any measure which could frustrate the attainment of its objectives, including the results prescribed by Protocol Articles 5(3) and (4), read in conjunction with Article 4 WA, which requires the UK to give full effect to applicable provisions of EU law. The UK authorities’ authorization of individuals to disregard EU law, ‘even though it is directly applicable to them by virtue of Article 5(3) and (4) of the Protocol read in conjunction with Article 4 of the Withdrawal Agreement’, was seen as especially problematic by the Commission.Footnote 16

This second complaint, regarding a breach of ‘good faith’, apparently does not fall within the Commission’s infringement action. Rather, the Commission expressed its intention to ‘provide written notice to the Joint Committee to commence consultations under [WA] Article 169 …, as a first step in the dispute settlement process set out in [WA] Title III of Part Six …’.Footnote 17 This brings us to the second dispute settlement applicable to the Protocol, namely the arbitration procedure.

5.3 Arbitration Procedure

The Protocol itself does not specifically mention other forms of dispute settlement between the parties, such as the arbitration procedure laid down in the WA. However, the ‘dispute settlement’ Title in Part Six WA applies to the Protocol, ‘without prejudice to [its] provisions’.Footnote 18 As a consequence, the exclusivity clause of Article 168 WA applies: ‘For any dispute between the Union and the United Kingdom arising under this Agreement, the Union and the United Kingdom shall only have recourse to the procedures provided for in this Agreement.’

This implies concretely that in the event that the JC is not able to reach agreement on a dispute, ‘arbitration under the terms of the Withdrawal Agreement will be the end result’,Footnote 19 except where a remedy is explicitly provided for in the Protocol. An example where arbitration could well arise would concern the provisions in Protocol Article 5 on customs and movement of goods, including the definition of goods ‘at risk’.Footnote 20

Before having recourse to the arbitration procedure, the EU and the UK must ‘endeavour to resolve any dispute regarding the interpretation and application of the provisions of this Agreement by entering into consultations in the Joint Committee in good faith, with the aim of reaching a mutually agreed solution’.Footnote 21 If no mutually agreed solution has been reached within three months after a written notice has been provided to the JC, Article 170(1) WA stipulates that the EU or the UK may request the establishment of an arbitration panel. Such request must be made in writing to the other party and to the International Bureau of the Permanent Court of Arbitration (PCA); it must identify the subject matter of the dispute to be brought before the arbitration panel and a summary of the legal arguments in support of the request.

The arbitration panel must be composed of five members. It must be established within fifteen days of the date of a request.Footnote 22 The EU and the UK must each nominate two members to the panel from among the persons on the list of twenty-five persons which has been established by the JC in December 2020.Footnote 23 That list comprises persons whose independence is beyond doubt, who possess the qualifications required for appointment to the highest judicial office in their respective countries or who are jurisconsults of recognized competence, and who possess specialized knowledge or experience of EU law and public international law. It also contains five persons which the EU and the UK have jointly proposed to act as chairperson of an arbitration panel. The chairperson must be selected by consensus by the nominated panel members from those five persons.Footnote 24 The WA provides for a procedure if the EU and the UK fail to establish an arbitration panel within three months from the date of the request made pursuant to Article 170.Footnote 25

The time frame of the procedure is laid down in Article 173: the arbitration panel must notify its ruling to the EU, the UK and the JC within twelve months from the date of its establishment.Footnote 26 There is also a possibility of an expediated procedure: within ten days of the establishment of the panel, the EU or the UK may submit a reasoned request to the effect that the case is urgent. In that case, the panel must give a ruling on the urgency within fifteen days from the receipt of such request, and if it accepts that urgency has been established, it must make every effort to notify its ruling within six months from the date of its establishment.Footnote 27 The panel must make every effort to take decisions by consensus, but where this is not possible, ‘the matter at issue shall be decided by a majority vote’, without the possibility of any published dissenting opinions.Footnote 28

Even in this very ‘classical’ arbitration procedure, the CJEU lurks around the corner. The Court makes a surprise comeback under Article 174 WA for ‘[d]isputes raising questions of Union law’.Footnote 29 Where a dispute ‘raises a question of interpretation of a concept of Union law, a question of interpretation of a provision of Union law referred to in this Agreement or a question of whether the United Kingdom has complied with its obligations under Article 89(2)’,Footnote 30 the arbitration panel may not decide on ‘any such question’; rather, it must request the CJEU to give a ruling on the question. The CJEU is given jurisdiction to give such a ruling, ‘which shall be binding on the arbitration panel’.

It has been correctly observed that neither party can force the arbitration panel to request a ruling from the CJEU.Footnote 31 However, the EU and the UK are allowed to make submissions to the arbitration panel to the effect that a request to the CJEU be made. In responding to these submissions, the panel must provide a reasoned assessment. Within ten days, either party may request the panel to review its assessment, and a hearing must be organized within fifteen days for the parties to be heard on the matter. The arbitration panel must again provide reasons for its ultimate assessment.Footnote 32

While there is as of yet no practice with regard to Article 174 WA, one may expect some vexing questions to arise. For instance, the Article 5 WA duty of good faith mentioned in Section 5.2.2 of this chapter will probably be seen by some as a notion of public international law, whereas others will point to the striking resemblance of the formulation of this obligation to the principle of sincere co-operation laid down in Article 4(3) TEU.Footnote 33

With regard to compliance, Article 175 WA stipulates that the arbitration panel ruling is binding on the EU and the UK, and that they must take ‘any measures necessary to comply in good faith with the arbitration panel ruling and shall endeavour to agree on the period of time to comply with the ruling’. As to the latter, it is for the respondent, if the panel has ruled in favour of the complainant, to notify the latter of the ‘reasonable period of time’ it considers it will require for compliance.Footnote 34 If there is disagreement between the parties on the reasonable period of time to comply with the arbitration panel ruling, the original panel can be requested to determine the length of that period of time.Footnote 35 The respondent must notify the complainant before the end of that period of any measure it has taken to comply with the arbitration panel ruling.Footnote 36 If, at the end of the reasonable period of time, the complainant considers that the respondent has failed to comply with the panel ruling, it may request the original panel to rule on the matter. The panel must notify its new ruling to the EU and the UK within ninety days of the date of submission of such request.Footnote 37 If the case referred to the panel raises the question of EU law as defined above, the panel must request the CJEU to give a ruling.Footnote 38 If the panel rules that the respondent has failed to comply, it may, at the request of the complainant, impose a lump sum or penalty payment to be paid to the complainant.Footnote 39 If there is continued non-compliance, or non-payment, the complainant will be entitled, upon notification to the respondent, to suspend relevant obligations under the WA.Footnote 40 Such suspensions must ‘be temporary and shall be applied only until any measure found to be inconsistent with the provisions of this Agreement has been withdrawn or amended’ or until the EU and the UK ‘have agreed to otherwise settle the dispute’.Footnote 41 The original arbitration panel may be asked to rule on whether the notified measure after penalty or suspension brings the respondent into conformity with the WA.Footnote 42

5.4 Conclusion

Aware of the challenges that implementation of the WA would pose, the parties found it ‘essential to establish provisions ensuring … binding dispute-settlement and enforcement rules that fully respect the autonomy of the respective legal orders of the Union and of the United Kingdom as well as the United Kingdom’s status as a third country’.Footnote 43 This chapter has considered the detailed and complex provisions that the EU and the UK agreed to in order to meet those objectives. At the moment, the dispute settlement process of the Protocol combines traditional international arbitration with a significant role for the CJEU, but this hybrid approach remains controversial. The UK government’s July 2021 proposals for renegotiating the Protocol proposed the eradication of the role of the CJEU in the governance of the Protocol as one of its key demands.Footnote 44 It is clear that challenging times lie ahead for both the CJEU and the arbitration panels.

Footnotes

3 Legal Structure, Rights and Enforceability

1 Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, OJ 2019 No. C384 I/01.

2 The Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the One Part, and the United Kingdom of Great Britain and Northern Ireland, of the Other Part, OJ 2021 No. L149/10.

3 P Craig, ‘Brexit, a Drama, the Endgame – Part II: Trade, Sovereignty and Control’ (2021) 46 European Law Review 129.

4 Such clauses enable primary legislation to be amended or repealed through statutory instruments.

5 P Craig and G de de Búrca, EU Law, Text, Cases and Materials (Oxford University Press 2020) ch 8.

6 P Craig, Administrative Law (9th edn, Sweet & Maxwell 2021) ch 25.

7 Marksenis and Deakin’s Tort Law (Simon Deakin and Zoe Adams eds, 8th edn, Oxford University Press 2019) ch 7.

8 Political declaration setting out the framework for the future relationship between the European Union and the United Kingdom, OJ 2019 No. C384 I/02.

9 The Future Relationship between the United Kingdom and the European Union, Cm 9593 (2018); P Craig, ‘Brexit, a Drama, the Endgame – Part I’ (2020) 45 European Law Review 163 at 171–72; K Armstrong, ‘Regulatory Autonomy after EU Membership: Alignment, Divergence and the Discipline of Law’ (2020) 45 European Law Review 207.

10 Prime Minister Boris Johnson, Greenwich Speech, 3 February 2020, www.gov.uk/government/speeches/pm-speech-in-greenwich-3-february-2020.

11 The Future Relationship with the EU, The UK’s Approach to Negotiations, CP211, February 2020.

12 The Future Relationship with the EU, Introduction [2].

13 The Future Relationship with the EU, Introduction [5].

14 See especially Chapters 1822 and 25.

15 The situation in Northern Ireland is different, although Art 10 of the Protocol could have ramifications for the UK.

16 Art 371 TCA.

17 Art 372(1) TCA, subject to qualifications in Art 372(3).

18 ‘Interested party’ means any natural or legal person, economic actor or association of economic actors whose interest might be affected by the granting of a subsidy, in particular the beneficiary, economic actors competing with the beneficiary or relevant trade associations of the respective parties, Art 369(6) TCA.

19 Art 373(2) TCA.

20 Art 372(3)–(4) TCA.

21 Craig (Footnote n 6) chs 26–27.

22 Craig (Footnote n 6) ch 30.

23 Art 373(5) TCA.

24 Legislating for the United Kingdom’s Withdrawal from the European Union, Cm 9446 (2017), [1.13].

4 The Committees of the Protocol

1 Art 164 WA.

2 Protocol Art 14.

3 Protocol Art 15.

4 Art 166(3) WA.

5 Its Secretariat is composed of an official of the European Commission and an official of the UK government.

6 And the Partnership Council of the TCA, also co-chaired by V-P Šefčovič.

7 Summary Minutes, Fifth Regular Meeting of the JC, 17 December 2020.

8 These meetings are usually followed by joint statements – in contrast to the formal meetings of the JC, for which the Commission and the UK government issued separate statements (at least up to May 2021).

9 Statement by the Secretary of State for NI, Brandon Lewis, to the House of Commons on the ‘NI Protocol: Implementation’, 3 March 2021, HCWS819.

10 UK Government Press Release, Lord Frost call with European Commission Vice President Maroš Šefčovič, 3 March 2021.

11 Art 164(3) WA.

12 Art 169(1) WA.

13 Art 170 WA; see also Chapter 5.

14 New Decade, New Approach, 8 January 2020, p 47.

15 In practice, the two junior ministers (DUP and Sinn Féin) at the Executive Office have attended JC meetings more frequently than the First and Deputy First Ministers themselves.

16 For example, the third JC meeting on 28 September 2020 was attended by EU member-state representatives. Gove, statement to the House of Commons on JC Meeting, 29 September 2020, Hansard, Vol 681, HCWS476. This is a sign of the concern across EU member states about the implementation of the Protocol even as the TCA was being negotiated.

17 Art 166 WA.

18 Unless the JC makes a decision that constitutes an amendment or replacement to part of the WA (pursuant to s 25(2) of the Constitutional Reform and Governance Act 2010), see Lord Keen of Elie, Lords Spokesperson (Ministry of Justice), House of Lords Debate on the UK–EU JC, 20 March 2019, c1436.

19 In May 2020 the Commission proposed the addition of eight acts to Annex 2 of the Protocol. Those which were accepted by the UK were approved in the second meeting of the JC on 12 June 2020.

20 Protocol Art 13(4), emphasis added.

21 Rule 14, Rules of Procedure, Decision No 01/2020 of the JC established by the Separation Agreement of 18 December 2020 Adopting the Rules of Procedure of the JC.

22 Art 5(2) of the Protocol: ‘Before the end of the transition period, the JC shall by decision establish the criteria for considering that a good brought into NI from outside the Union is not at risk of subsequently being moved into the Union.’ The EU’s Common External Tariff has to be paid on those goods that are considered to be ‘at risk’; this should be reimbursed if it is proven that those goods stayed within the UK. Whether goods entering NI via GB are ‘at risk’ or not, they are all subject to customs controls and paperwork, and, potentially, regulatory checks.

23 European Commission, Press Release, ‘EU–UK Relations: Solutions Found to Help Implementation of the Protocol on Ireland and Northern Ireland’, 30 June 2021, https://ec.europa.eu/commission/presscorner/detail/en/ip_21_3324. This package of measures is discussed further in ‘Update: Developments from July 2021 to September 2021’ at the front of this book.

24 According to Art 5(2), the JC may amend at any time its decisions adopted relating to ‘at risk’ goods.

25 The JC co-chairs informally agreed the terms of the UK (Trusted) Trader Scheme on 8 December; the JC is to keep this under review and can enact an ‘emergency brake’ if deemed necessary.

26 According to Art 8, the JC has the competence to review the application of the rules relating to VAT and excise, ‘and may adopt appropriate measures as necessary’.

27 Protocol Annex 6.

28 Protocol Art 12. These arrangements are to be reviewed by the JC ‘at the latest [three] years after entry into force and following a request from the Union or the United Kingdom’. See Decision No 6/2020 of the WA JC on arrangements under Art 12(2) of the Protocol.

29 Protocol Art 18; see also Chapter 10 in this volume. This would have to occur within two years, when Arts 5–10 would automatically cease to apply. The JC ‘may seek an opinion from institutions created by the 1998 Agreement’ before making its recommendation.

30 Protocol Art 6(2).

31 Protocol Art 11(2).

32 Protocol Art 5.

33 Decision No 2/2020 of the JC [2020/2246] (OJ L 443/2020), Art 9 on ‘review and termination’.

34 The other specialized committees are on citizens’ rights; the other separation provisions; issues related to the Sovereign Base Areas in Cyprus; issues related to the implementation of the Protocol on Gibraltar; and the financial provisions of the WA.

35 Art 165 WA.

36 Art 165(4) WA.

37 Lord Frost reply to Lord Kinnoull, chair of the Lords EU Committee, on the Protocol on Ireland/Northern Ireland, 28 April 2021, MC2021/05342.

38 Protocol Art 14(e).

39 Council Decision (EU) 2020/1599 of 23 October 2020 on the position to be taken on behalf of the European Union in the Joint Consultative Working Group as regards the adoption of its rules of procedure, OJ 2020 L 365/3.

40 ‘Where appropriate and by decision of the co-chairs, experts or other persons who are not members of delegations may be invited to attend meetings of the working group in order to provide information on a particular subject’ (Rule 3(2)).

41 Letter from Rt Hon Michael Gove to Colin McGrath, MLA, chair of the Committee for the Executive Office, Northern Ireland Assembly, 6 January 2021, MC2020/17995.

42 House of Lords, European Union Committee (2019) ‘Beyond Brexit: How to Win Friends and Influence People’, 35th Report of Session 2017–19.

5 Dispute Settlement

1 Joris Larik, ‘Decision-Making and Dispute Settlement’ in Federico Fabbrini (ed), The Law and Politics of Brexit (Oxford University Press 2020) 191, at 198.

2 House of Lords, European Union Committee, The Protocol on Ireland/Northern Ireland, Ninth Report of Session 2019–21, 1 June 2020, HL Paper 66, paras 107 and 256.

4 Compare Art 94(2) WA.

5 For the latter, compare the slightly different wording of Art 91(3) WA. Interestingly, it follows from the formulation of Art 12(7)(b) WA that such lawyers may represent or assist any party, including adversaries of the UK authorities in the dispute at hand.

6 See further Chapter 10.

11 Letter of 15 March 2021 addressed by Commission Vice-President Maroš Šefčovič, EU Co-chair of the Joint Committee, to Lord David Frost, UK Minister of State.

12 ‘Commission Formally Launches Infringement Proceedings against London for Breach of Northern Ireland Protocol’ Agence Europe (15 March 2021).

13 ‘London Responds to Commission’s letter of formal notice on Northern Ireland Protocol, but is challenging scheme’ Agence Europe (17 May 2021). On 15 April 2021, following a meeting with Commission Vice-President Šefčovič and Minister Frost, Lord Frost issued a statement saying that recent meetings had begun to ‘clarify’ things and create ‘positive momentum’, but that ‘difficult issues’ remained: ‘Discussions with EU Should Continue to Address Problems of Implementation of Protocol on Ireland/Northern Ireland’ Agence Europe (16 April 2021).

14 See ‘Lord Frost Calls on EU to Show Pragmatism on the Protocol after Meetings with a Number of Business and Community Representatives in Northern Ireland’ (11 May 2021) www.gov.uk/government/news/lord-frost-calls-on-eu-to-show-pragmatism-on-the-protocol-after-meetings-with-a-number-of-business-and-community-representatives-in-northern-ireland. On 16 May Lord Frost published an op-ed in which he criticized the EU’s ‘purist views’ and indicated that the UK was considering ‘all our options’ regarding the Protocol: ‘The EU Must Stop Point Scoring and Work with Us to Protect Peace’ Daily Mail (16 May 2021) www.dailymail.co.uk/debate/article-9582447/LORD-FROST-EU-stop-point-scoring-work-protect-peace.html. On 20 May 2021 Lord Frost suggested that the UK may invoke Protocol Article 16 in light of the difficulties raised by the Protocol: ‘Ex-UK Brexit Negotiator: EU Vaccine Move Is to Blame for Northern Ireland Issues’ Politico (20 May 2021) www.politico.eu/article/former-uk-brexit-negotiator-says-eu-move-to-blame-for-northern-ireland-problems/.

15 European Council Conclusions, 24–25 May 2021, paras 13 and 14.

16 Letter of 15 March 2021 of Maroš Šefčovič to Lord Frost.

18 Protocol Art 13(1), third sub-para.

19 House of Lords, European Union Committee, The Protocol on Ireland/Northern Ireland (Footnote n 2) para 270.

20 Footnote Ibid, para 274. See also the testimony of Dr de Mars before the House of Lords European Union Committee, according to whom

the Protocol is ‘beautifully silent’ as to how any disagreement would be resolved, ‘but if there is no agreement and if the parties are not both happy with saying that EU tariffs apply on all products going from Great Britain to Northern Ireland, then one of the two parties is likely to start consultations in the Joint Committee leading to arbitration on that point’.

(Footnote ibid, para 102)

21 Art 169 WA.

22 Art 171(3) and (4) WA.

23 Pursuant to Art 171(1) WA: Decision No 7/2020 of the Joint Committee establishing a list of 25 persons who are willing and able to serve as members of an arbitration panel under the Agreement, OJ 2020 L443/22.

24 If they are unable to agree on the selection of the chairperson, the EU or the UK may request the Secretary-General of the PCA to select – within five days – the chairperson by lot from among those five jointly proposed persons: Arts 171(5), sub-para 2, and (6) WA.

25 It is then for the Secretary-General of the PCA, upon request by either the EU or the UK, within fifteen days, and after consultation with the EU and the UK, to appoint persons who fulfil the aforementioned requirements of independence and competence to constitute the arbitration panel: Art 171(9) WA.

26 If the arbitration panel considers that it cannot comply with this time limit, its chairperson must notify the EU and the UK, stating the reasons for the delay and the date on which the panel intends to conclude its work: Art 173(1) WA.

27 Art 173(2) WA.

28 Art 180(1) WA.

29 Title of Art 174 WA.

30 Art 89(2) WA concerns the obligation of the UK to comply with a judgment in which the CJEU has found that the UK has failed to fulfil an obligation under the Treaties or under the WA.

31 Larik (Footnote n 1) 207.

32 Art 174(2) WA.

33 See Jan Wouters, ‘The Institutional Dimension of the EU–UK Relationship after Brexit’ (2020) 25(4) European Foreign Affairs Review 613, 627. See also Chapter 8.

34 Art 176(1) WA.

35 Art 176(2) WA.

36 Art 177(1) WA.

37 Art 177(2) WA.

38 Art 177(4) WA.

39 Art 178 WA.

40 Art 178(2) WA.

41 Art 178(5) WA. For a further discussion, including of the possibility to suspend ‘parts of any other agreement between the Union and the United Kingdom’ (Art 178(2) first para, sub b WA), see Larik (Footnote n 1) 208.

42 Art 179 WA.

43 WA, 11th recital of the preamble. On the repeated emphasis in the WA on the autonomy of the EU’s and the UK’s legal orders, see Wouters (n 33) 628.

44 HM Government, Northern Ireland Protocol: The Way Forward (CP 502, July 2021), paras 41, 67.

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