24 Jul EU-UK Collaborative Dispute Resolution – Why Are Northern Ireland Issues So Cumbersome?
[Thomas Bickl researches dispute resolution issues with regard to the EU’s neighbourhood policy in Northern and Western Europe, EU enlargement in the Western Balkans, and Law of the Sea issues. His book on the border dispute between Croatia and Slovenia and its implications for EU enlargement was published by Springer in 2020.]
The European Union (EU) and the United Kingdom (UK) have struggled over the implementation of the Protocol on Ireland/Northern Ireland in the face of the UK leaving the EU (Brexit). The transition period ended on 31 December 2020. Nonetheless, a complex set of rules stipulated in the Withdrawal Agreement has been in operation since, in particular for the political reasons of avoiding to re-establish a hard border between Ireland and Northern Ireland, to preserve both peaceful relations between the communities following the 1998 Good Friday Agreement and the inter-entity economic prosperity of the island.
This blog post aims at outlining and analysing the dispute resolution provisions of (i) the post-Brexit Trade and Cooperation Agreement (TCA) and (ii) the Withdrawal Agreement (WA) between the EU and the UK. The agreements’ mechanisms include the political bilateral and the judicial third-party level within a wider governance framework.
The UK left the EU on 1 February 2020. During the transition period expiring on 31 December 2020, the UK still participated in the EU Single Market (including contributions to the EU budget), so virtually no changes of a practical nature occurred during that period with regard to citizens and business save for the fact that the UK no longer participated in the work and decision-making of the EU institutions. As per 1 January 2021, the UK is a third country, and the relations between the two parties are largely governed by the Trade and Cooperation Agreement (TCA) concluded on 24 December 2020 after nine months of negotiations. In a nutshell, the TCA constitutes a bilateral free trade agreement plus thematic cooperation (on transport, energy including combating climate change, fisheries, law enforcement and judicial cooperation in criminal matters, and the participation in certain EU programmes).
On 30 December 2020, the UK House of Commons adopted the European Union (Future Relationship) Act 2020 in order to implement the TCA in national legislation. On the EU side, the Council (EU Member States) signed the TCA on 29 December 2020. After a few months of provisional application, the European Parliament ratified the TCA on 28 April 2021 and the Council finally adopted the agreement on 29 April 2021 (“EU-only” legal basis Art. 217 TFEU).
Ireland/Northern Ireland Protocol
It must be noted, however, that the current dispute between the UK and the EU is to do with the Withdrawal Agreement (WA), concluded in November 2018 and finally amended in November 2019 (after two unsuccessful ratification attempts in the Commons). The WA has been in force alongside the TCA. The Withdrawal Agreement mainly governs citizens rights (preserving the status quo of EU citizens resident in the UK and vice versa up until 1 February 2020), the financial obligations of the UK vis-à-vis the EU (over which a new dispute seems to emerge ex post), and the Protocol on Ireland/ Northern Ireland. The latter is a sui generis regime providing for a common (EU) market between Ireland and Northern Ireland for goods, agricultural products and VAT whilst preserving the UK domestic customs union between Northern Ireland and mainland Britain effectively shifting the EU’s external customs border to the Irish Sea.
Disputes emerged as early as in January 2021. A well-matured territorial dispute about Rockall (a small rock in the North-East Atlantic) between Ireland and the UK re-surfaced in early January due to the expiry of the application of the EU Fisheries Policy to the UK (see EJIL Talk blog post by Ríán Derrig). On a wider EU-UK front, both parties were contemplating emergency measures (invoking Art. 16 of the Protocol) to suspend major provisions of the Protocol itself: the EU Commission had considered an export ban of anti-COVID vaccines to retain maximum supply within the EU – and hastened to take back such plans over fierce criticism from the UK and Irish governments.
Products imported into Northern Ireland from Great Britain
With regard to the particularly sensitive checks of goods arriving in Northern Ireland from mainland Britain (as stipulated by the Protocol), the UK government unilaterally introduced a lighter regime for imported food and agriculture produce to counter food-supply shortages in supermarkets in Northern Ireland by unilaterally extending the grace period for checks of goods across the Irish Sea to 1 October (with a subsequent phase-in) instead of 1 April 2021 (the latter date stipulated by the Protocol).
This prompted legal action by way of infringement proceedings on the part of the European Commission. In a letter of European Commission Vice-President Maroš Šefčović to David Frost (both being Co-Chairs of the EU-UK Joint Committee and Partnership Council respectively) dated 15 March 2021, the Commission claims a violation of Art. 5(3) and (4) of the Protocol and of the bona fide duty in Art. 5 WA sending a letter of formal notice pursuant to Art. 12(4) of the Protocol in conjunction with Art. 258 TFEU. Both parties have been in bilateral consultations since. On 30 June 2021, they agreed on an extension of the grace period for the movement of chilled meats from Britain to Northern Ireland to 30 September 2021 at the request of the UK, apparently the most pressing issue for food retailers in Northern Ireland who are calling for a sustainable solution.
On 21 July 2021, the UK government presented a policy paper calling for a “standstill on […] the operation of grace periods […] and a freeze on existing legal actions and processes” to negotiate “new arrangements” (UK government: Northern Ireland Protocol: the way forward, paras 76-77). The EU Commission rejected the demands for renegotiating the Protocol whilst being ready “to seek creative solutions, within the framework of the [existing] Protocol” (Statement EU Commission Vice-President Maroš Šefčović).
There have been no major disputes with regard to the Trade and Cooperation Agreement to date.
Dispute resolution and governance under WA and TCA
Whilst the full scope of both the WA and the TCA are out of place in this post, I shall focus on the governance and dispute settlement provisions.
To start with, collaborative dispute resolution, also known as Alternative Dispute Resolution (ADR), is a holistic concept which originated in the US in the early 1990s based on a theory of human needs (see Burton 1990) aiming at avoiding classical litigation. Instead of often lengthy, costly, and adversarial court-room procedures with eventual winners and losers, the collaborative approach looks at the underlying interests of the parties and possible mutual gains. Priority is given to a bilaterally negotiated solution with the option of involving third-party mediation (see e.g. Di Fonzo 2009). Today, collaborative dispute resolution is widely used in areas such as commercial disputes or divorces.
Trade and Cooperation Agreement (TCA)
The TCA’s genuine approach is about its governance and dispute settlement ecosystems. The main forum is the Partnership Council comprising ministerial-level representatives of the UK and the EU entrusted with all aspects of the implementation and operation of the Agreement. Furthermore, the Partnership Council has the powers to amend the TCA’s provisions (Annex INST, Rule 2), not least in the context of the periodic review of the TCA’s and supplementing agreements’ implementation every five years (Art. FINPROV.3). The TCA also establishes Committees and Working Groups (Art. INST.3).
In the event of disputes, they shall be discussed in the Partnership Council with a view to reaching a consensus within 30 days (Art. INST.13). If no solution is found or no consultations have been held altogether, the complaining Party can trigger the establishment of an arbitration tribunal composed of three members. Each Party nominates one arbitrator. If one Party fails to do so, the Co-Chair of the Partnership Council from the complaining Party selects an arbitrator. If there is no agreement on the chairperson of the tribunal, the Co-Chair of the Partnership Council of the complaining Party selects the chairperson (Art. INST.15). The arbitration panel presents an interim report within 100 days. If there is no response from the Parties within 14 days, this report shall be the ruling of the panel. In the event of requests for reviews from the Parties, the arbitration tribunal hands down its decision no later than 160 days after the panel’s establishment (Art. INST.20). If there is disagreement on the compliance of the respondent Party or the legality of a possible suspension of obligations by the complaining Party, the panel can rule on the matter (Arts. INST.23 and 24). Should a bilaterally agreed solution occur during the arbitration procedure, the proceedings shall be terminated (Art. INST 31). For greater legal certainty, the arbitration panel has no jurisdiction over domestic laws of the Parties. In turn, the courts of the Parties have no jurisdiction in disputes arising from the TCA (Art. 4(4) and (4a) INST.29). The European Court of Justice (CJEU) has no jurisdiction in the TCA save for the UK’s participation in EU programmes (Art. UNPRO 4.4).
Withdrawal Agreement (WA)
As regards the WA, however, the CJEU has jurisdiction in a number of areas (pending cases at the end of the transition period and new cases relating to the interpretation of the WA itself aside). It is worth noting that the Court’s jurisdiction relates to individual provisions of the WA. There is an eight-year cut-off jurisdiction regarding citizens rights (Art. 158 WA), jurisdiction over the financial settlement (Art. 160 WA), and the Protocol on Ireland/Northern Ireland (NI), i. e. in the areas of customs and movement of goods in relation to Northern Ireland, VAT and excise as regards NI, and exchange of information referring to the Protocol’s application in NI (Arts. 5, 7-10, 12(2) Protocol). There are innumerous EU legal acts applicable with regard to Art. 5(4) Protocol on customs and the movement of goods, e. g. no less than 15 EU legal acts on live animals and products of animal origin (point 36 Annex II Protocol), 7 on official controls and veterinary checks (point 43 Annex II Protocol), and 2 on other sanitary and phytosanitary standards (point 44 Annex II Protocol). The CJEU’s jurisdiction over the above Protocol provisions is expressly stipulated in Art. 12(4) including the application to UK courts of Art. 267 TFEU on CJEU preliminary rulings (for the tensions between EU law and international law in the Withdrawal Agreement see e. g. Peers 2020).
The primary forum for any matters regarding the operation of the WA and its political steer including the resolution of disputes is the Joint Committee composed of a ministerial-level representative each of the EU and the UK (Art. 164 WA). If no solution to a dispute is found during a maximum consultation period of three months, an arbitration procedure can be initiated by either Party including the notification of the Permanent Court of Arbitration (PCA). If the Parties cannot agree on the five arbitrators including the chairperson, the PCA Secretary General appoints the respective tribunal members (Art. 171 WA). All issues relating to EU law the arbitration panel is bound to refer to the CJEU whose rulings are binding on the panel (Art. 174(1) WA). The arbitration panel has jurisdiction to decide on parties’ requests on referring matters to a CJEU ruling (Art. 174(2) WA). The arbitration tribunal should deliver its ruling within 12 months, in urgent cases within six months, but may extend the period (Art. 173 WA), and has jurisdiction to review any compliance or remedy issues (Arts. 177-179 WA).
For a comparative overview of the TCA and the WA see fig. 1 below.
The spirit of collaborative dispute resolution appears to be well enshrined in both agreements between the EU and the UK, where bilateral consultations constitute the default mode. Whilst little can yet be said about the operation of the Trade and Cooperation Agreement in practice (where there are indeed potential prospective issues of dispute such as fisheries or State aid nonetheless), the first seven months of application of the Withdrawal Agreement has been crisis management concerning the Protocol on Ireland/Northern Ireland. This may have to do with the fact that the WA had been carved out under a very tight schedule including revisiting the provisions on Ireland/Northern Ireland in the first place. However, the underlying issue is that the political and legal circumstances equate trying to marry the UK’s departure from the EU whilst de facto retaining the EU single market rules for Northern Ireland including the jurisdiction of the CJEU.
The procedures for third-party judicial dispute resolution in the WA do not allow for an overall blockade which undoubtedly is a positive thing. However, the operational rules are clumsy and include relatively long deadlines (not least compared to those in the TCA). It seems, therefore, that issues arising from a practical context on the ground, such as checks for products arriving in Northern Ireland through the Irish Sea, are unsuitable for a, say, 18-months-or-so arbitration procedure including a referral to the CJEU. This is why we seem to be witnessing a de facto bilateral development of the interpretation and implementation of existing Protocol rules instead. It must be noted, however, that the only result of the bilateral consultations thus far covers the extension of a transition period and not an alteration of substantive Protocol provisions as such.
The real test, therefore, comes after the summer break when agreements of substantial material scope, which need to provide legal certainty for stakeholders and State authorities alike, will be due. The latest move of the UK government to call for a re-negotiation of the Protocol on Ireland/Northern Ireland altogether and the outright repudiation of that call by the European Commission have added to the tensions.
A mutual spirit of sincere cooperation, bona fide, pacta sunt servanda, and the overall respect for the rule of law on both sides will be indispensable to achieve progress on disputed issues. This holds for both (i) the negotiations on amendments to the Protocol rules or additional agreements to supplement them, and (ii) the implementation and enforcement of existing and potential future agreements. In any event, it also remains to be seen whether and how the dispute settlement provisions in the WA (and the TCA) will stand the test of time, or whether the Parties will contemplate to streamline them.