Northern Ireland Protocol: Article 16 and EU vaccine export controls

John Curtis

On 29 January the European Commission released new rules controlling the export of Covid-19 vaccines out of the EU.

The EU also said it would trigger emergency safeguarding measures under Article 16 of the Northern Ireland Protocol. This would potentially prevent vaccines being sent to Northern Ireland from the EU, and then onto Great Britain (it later retracted these measures).

This Insight explores the EU’s plans for vaccine controls, what Article 16 is, how it’s triggered, and what the consequences of the last few days may be.

What did the EU propose?

The Commission’s new regulations create an export licensing scheme. This requires companies to get authorisation from the EU Member State where they manufactured the vaccine before they can be exported.

Exports from the EU to a number of countries will be exempt from these rules, including most other European countries, developing nations, and members of the Euro-Mediterranean Partnership. The UK is not included in the exempt list.

The original regulations also said the EU would trigger Article 16 of the Northern Ireland Protocol in order to allow export controls on vaccines moving from the EU to Northern Ireland (NI).

Why specific powers over exports to Northern Ireland?

The NI Protocol keeps an open border and the seamless movement of goods between NI and Ireland and the rest of the EU.

It does this by having NI follow the EU’s customs rules and many EU single market rules for goods. It also prevents the EU from putting restrictions on the quantity or value of exports between the EU and NI. UK authorities control the movement of goods from NI to GB.

The Protocol therefore prevents the EU from putting controls on vaccine exports to NI. Vaccine producers could have potentially side-stepped export controls to the UK by sending them via NI, as the UK authorities would not be bound by these controls to stop the vaccines moving to GB. Triggering Article 16 would have attempted to prevent this.

After condemnation of this move by all of NI’s major political parties, the UK and Irish Prime Ministers, the European Commission took down the original proposal, and clarified that they would no longer plan to trigger Article 16, describing the move as an “oversight”.

What difference would triggering Article 16 have made to the UK’s vaccine supplies?

Potentially very little, as vaccines made in the EU are currently being shipped direct to Great Britain, not through NI, and it wasn’t clear any company would have used the Protocol to get around export controls.

However, the new export regulations will mean shipments of the vaccine from the EU to GB will require export authorisation. The impact, if any, on the UK’s supply of vaccines is unclear at this stage. European Commission President Ursula von der Leyen has said “there should not be restrictions on the export of vaccines by companies where they are fulfilling contractual responsibilities” to a country like the UK. However, this is not spelled out in the regulation itself.

What is Article 16’s purpose?

Article 16 (1) states that if the application of the Protocol leads to “serious economic, societal or environmental difficulties that are liable to persist”, or to “diversion of trade” then either side can impose “appropriate safeguard measures”. These measures, however, need to be targeted in scope and duration to directly address the problems they are trying to fix.

How is the Article 16 process supposed to work?

Annex 7 of the Protocol lays out the process:

Step 1: Notification: When the EU or UK are considering undertaking safeguard measures the proposing side must inform the other side through the Joint Committee “without delay”.
Step 2: Consultation. Both parties must immediately enter into consultations in the Committee to try and find “a commonly acceptable solution”.
Step 3: Implementation. If no solution is found the proposing side cannot implement them until one month after step 1, unless the step 2 discussions have concluded before that.
Step 4: Provide information. The proposing side must “without delay” notify the other what measures they are putting in place and “all relevant information”.
Step 5: Ongoing consultation. Every three months, the safeguarding measures will be discussed in the Joint Committee, with a focus on ending them and/or limiting their scope.

There is a significant exemption, however, “when exceptional circumstances requiring immediate action exclude prior examination” occur, the proposing side can implement measures immediately.

What can the other party do about it?

Article 16(2) states that if the safeguard measures create “an imbalance between the rights and obligations under this Protocol,” the other side may take “proportionate rebalancing measures” that are “strictly necessary” to remedy the imbalance. They should prioritise measures that will “least disturb the functioning” of the Protocol.

The side introducing “rebalancing measures” must also use the five-step process above but could also use the “exceptional circumstances” clause.

Both sides could also ask the independent arbitration panel, set up under the Withdrawal Agreement’s dispute settlement process, to provide a ruling if they thought this process was being misused or misapplied.

Why does this matter?

Firstly, political tensions in NI have already been heightened by Brexit. The Northern Ireland Executive was only restored in January 2020, after a nearly three-year gap. The Protocol was controversial on all parts of the political spectrum.

Secondly, some Northern Ireland Unionist politicians were already calling for Article 16 to be triggered in early January, to stop customs controls and checks on goods moving from GB to NI that are causing disruptions to the flow of goods.

Experts have suggested such measures are not a quick fix for these problems. The EU’s aborted attempt to impose its own measures seem to have given further impetus to these calls with Arlene Foster, Northern Ireland’s First Minister, now calling for it to be triggered.

And lastly, in four years’ time the Northern-Ireland Assembly will have the opportunity under the Protocol’s “consent mechanism” to vote on whether large parts of the Protocol (covering goods, VAT, electricity markets and state aid) should continue. If they vote no, then the EU and UK would have to renegotiate new arrangements for Northern Ireland and the Irish border. Should this happen, there are no easy solutions.