Northern Ireland Protocol: Article 16

The Northern Ireland Protocol (the Protocol) is an integral part of the Withdrawal Agreement which set out how the UK’s exit from the EU would work.

The Protocol sets out Northern Ireland’s post-Brexit relationship with both the EU and Great Britain (the rest of the UK). Most of the Protocol came into force on 1 January 2021.

What is Article 16?

Article 16 is an emergency mechanism in the Protocol that either the UK or the EU can use to introduce temporary safeguard measures to protect its economy and society. This is only if the application of the Protocol leads to “serious economic, societal or environmental difficulties that are liable to persist”, or to “diversion of trade”. These measures, however, need to be targeted to directly address the problems they are trying to fix.

The side wanting to introduce safeguard measures must first discuss its proposals through the EU-UK Joint Committee, to try and find other solutions. If this isn’t possible, then they should keep the other side regularly informed and try to end the measures as soon as possible and/or limit their scope.

The other side can introduce counterbalancing measures if the safeguard measures of the other side create “an imbalance between the rights and obligations under this Protocol”. They should also use the consultation process above. Both sides can immediately impose measures in “exceptional circumstances”.

It is sometimes said that Article 16 is a means to “suspend” parts of the Protocol. This is not directly stated in Article 16 and is not the purpose of the safeguard mechanism.

Why could Article 16 be triggered?

Northern Ireland’s Unionist political parties, who want the Protocol to be removed or significantly changed, have called to trigger Article 16 since early 2021. They want to use the process to stop checks and controls on goods moving from Great Britain to Northern Ireland that they see as threatening the Union. These calls were intensified in January 2021, when the EU briefly suggested it might trigger Article 16 to restrict exports of Covid-19 vaccines from the bloc.

Early in 2021, the UK Government raised concerns over the effect of the Protocol on Northern Ireland and asked for limited changes. The EU acknowledged some of these concerns and proposed some specific proposals in areas such as the movement of livestock and steel quotas. There have also been disagreements over the extension of so called “grace periods” first implemented in January 2021, to temporarily ease the burden on Northern Ireland businesses in complying with the Protocol.

The UK has since proposed much more significant changes to the Protocol, including removing the jurisdiction of the Court of Justice of the EU (CJEU) from the Protocol. These requests were set out in detail by the Government in a July 2021 Command Paper.

In the paper, the Government said it believed the threshold for using Article 16 had been met, citing “significant disruption” to trade flows between Great Britain and Northern Ireland; “perceptions of separation and threat to identity withing the unionist community”; “political and community instability”; and “instances of disorder”. But it said it would not trigger it while it might be able to find solutions with the EU.

In response to the paper, the EU has proposed changes to lessen the burden of customs checks and controls, as well as checks on live animals, plants and animal products, and negotiations are continuing on these proposals. The outcome of these negotiations will heavily influence whether the UK decides to trigger Article 16 and the EU’s reaction.

Withdrawal Agreement’s arbitration process

The Withdrawal Agreement’s dispute mechanisms state that if the two sides cannot solve serious disputes through negotiations in the Joint Committee, then it can refer them to an independent arbitration panel. An arbitration panel must refer any questions on the interpretation of concepts or provisions of EU law to the CJEU and the CJEU’s ruling on the matter will be binding on the panel.

Either side could ask an arbitration panel to rule on whether safeguard measures or counterbalancing measures had met the requirements of Article 16.

Cross-retaliation between the Withdrawal Agreement and the TCA

Both the Withdrawal Agreement and the Trade and Cooperation Agreement (TCA, which sets out the future relationship between the UK and EU) include the possibility of taking action if a party has not complied with its obligations under the Withdrawal Agreement. However, this is only explicitly allowed when a party has not complied with the ruling of the arbitration panel and/or paid a fine imposed by the panel.

The EU may argue that the only way it could respond proportionately to the UK taking Article 16 safeguard measures in areas like customs checks, is to use counter-balancing measures relating to EU-UK trade under the TCA.

Termination of the TCA

The TCA’s dispute mechanisms allow either side to unilaterally terminate the whole agreement with 12 months’ notice, or much more quickly if one of the “essential elements” of the TCA is breached. It appears unlikely that triggering Article 16 would breach an essential element. Parts of the TCA can also be suspended with nine months’ written warning.

There is no justification required for the nine- or 12-months’ notice procedures, and it would be a political calculation by the EU as to whether it would wish to retaliate with such measures should the UK trigger Article 16. Political reports suggest the EU is considering doing so.

Infringement proceedings

Article 12(4) of the Protocol states the European Commission can bring infringement proceedings against the UK at the CJEU, if it considers that the UK has breached Article 5 and Articles 7 to 10 of the Protocol.

Article 5 covers customs and is likely to be an area affected by any UK safeguard measures.

The UK may argue that any disputes should be dealt with by the arbitration process rather than infringement, as its actions would be under the umbrella of Article 16. Infringement proceedings could run concurrently with the arbitration process and it’s not clear how they should or could interact.

Other potential areas for disputes

The EU could also withhold cooperation with the UK in areas such as participation in EU programmes like Horizon, ongoing negotiations on Gibraltar, data adequacy, and financial services as leverage should the UK trigger Article 16.