The Withdrawal Agreement: The view from Brussels

Alastair Sutton

Introduction

These notes were originally prepared for a legal conference in mid-December 2020.  Since that time, the UK and the EU have finalised a Trade and Cooperation Agreement (TCA), which has been implemented in the UK by the European Union (Future Relationship) Act 2020. In the EU, the provisional application of the TCA has been effected by a Council Decision of 29 December 2020.  To the extent possible, the notes reflect developments since mid-December, notably of course the conclusion of the TCA but also the removal from the Internal Market Act of provisions on Northern Ireland which, if enacted, would have infringed the terms of the Protocol on the Ireland/Northern Ireland border.

The challenge for both sides going forward, but in my view, especially for the UK (which has shown itself to be unprepared[i] throughout the Brexit process), will be formidable –  to apply two complex and novel legal frameworks in parallel, coping at the same time with the worst pandemic in 100 years.   Only a maximum of good faith, mutual respect and cooperation can deliver the legal certainty which is indispensable to minimise the fall-out from Brexit. These essential ingredients in the UK’s relations with Europe have not been in such short supply since 1945. They will not be restored quickly and certainly not by a government which has:

  1. Broken its commitments under the Political Declaration (notably as regards the level playing field) and
  2. Proposed legislation which, if enacted, would have breached the provisions of the Ireland/Northern Ireland Protocol, arguably the most sensitive and politically-important part of the WA.

As far as the Withdrawal Agreement (WA) is concerned, it might appear that this agreement, so highly controversial only one year ago, has now been consigned to history.  This is however far from the case. Irrespective of the TCA, the 3.7 million EU citizens in the UK and the 1.2 million UK citizens in the EU depend on the effective transposition and application in good faith of the WA’s citizens’ rights provisions into 28 national legal systems (the UK and 27 EU Member States), with full effect from 1 January 2020.

Further, the WA provides the legal basis for the management of trade between the EU, Great Britain and Northern Ireland under the Ireland/Northern Ireland Protocol. The reliable and efficient management of the Protocol’s provisions on trade in goods by the UK authorities will be seen as a test case by the EU, not only of the UK’s good faith but also the capacity of HMRC to monitor trade between Great Britain and Northern Ireland in such a way as to avoid fraud and circumvention of  taxes (VAT and excises) and product standards.

Other parts of the WA provide legal continuity beyond 31 December 2020 in areas such as trade in goods, public procurement, ongoing state aid and competition cases, pending and new cases before the European courts, intellectual property rights, civil and criminal judicial cooperation and the treatment of nuclear materials. The WA provisions on the financial settlement are likewise applicable beyond 2020.

The WA has no termination date. Its provisions are directly effective in and superior to UK law.[ii]  Citizens’ rights are protected indefinitely, with the ECJ having jurisdiction in preliminary references for 8 years after the end of the transition period (TP).

The UK Government’s blatant failure to respect the terms of the Political Declaration (negotiated personally and signed by the UK Prime Minister) on the level playing field, taken with a deliberate breach of the WA Protocol on Ireland and Northern Ireland in the Internal Market Bill  (even if since rectified), not only undermine the EU’s respect for the UK as a world leader on the rule of law, but also reinforced the EU’s negotiating position on the governance of the new agreement with the UK.

Even if a new agreement has now been concluded, the EU will insist on scrupulous respect by the UK for all the provisions of the WA – especially the “Irish Protocol”.  Even more than the UK’s conduct under a new agreement or the WTO, the full and accurate implementation of the WA will be seen in Europe (and elsewhere[iii]) as a test of the UK’s good faith and its respect for the principle – pacta sunt servanda. Against this sombre background, these notes summarise the relevant provisions of the WA (including the “Irish Protocol”), focussing mainly on those which will apply after 2020.

Legal basis for the Withdrawal Agreement (WA)[iv]

Article 50(2) TEU provides:

“A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the future framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the TFEU. It shall be concluded on behalf of the Union by the Council, acting by qualified majority, after obtaining the consent of the European Parliament.”

The entry into force of the WA had an important effect on the timing of the UK’s withdrawal. Article 50(3) provides:

“The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend the period.”

The withdrawal period, triggered by the UK’s notification on 29 March 2017, has been characterised by delays and legal uncertainty. There have been, in effect, 4 delays: 3 extensions to the 2 year period in Article 50 granted by the EU[v] and then the transitional period between 1 February and 31 December 2020.  The UK has been a “third country” or non-Member State since 1 February 2020, but has been bound by the entirety of EU law under the terms of the transition period (WA Articles 126-132).

The legal nature of the WA

The WA is an agreement concluded under public international law by an international (supranational) organisation possessing legal personality under international law and a sovereign State. It is nonetheless sui generis in the sense that:

  1. It was negotiated, signed, ratified and entered into force whilst the UK was still a Member State;
  2. The legal basis of the WA is Article 50 TEU;
  3. The bulk of the substantive and procedural provisions of the WA are based on, reflect or incorporate the EU acquis;
  4. The WA contains no expiry date and has many provisions (including for the enforcement of obligations it contains), the legal effect of which continue after the end of the TP when the UK’s full[vi] transition to third country status should be complete, with the conclusion of a new bilateral framework agreement.

The purpose of a withdrawal agreement under Article 50 TEU – a “drawbridge” of “walking the plank” for the UK?

Article 50 was an innovation in the Lisbon Treaty (2009). It was probably intended never to be used; and certainly not for the UK (although with hindsight, Brexit was a political accident waiting to happen).  Article 50 serves two purposes: “housekeeping”[vii] and a legal “bridge” to ensure a smooth transition from EU membership to third country status.

An unspoken assumption in Article 50 is that the withdrawing State knows what it wants as a third country outside the Union. The way in which UK withdrawal has been handled reflects the fact that still today, 75 years after World War 2, the UK still has no credible foreign policy, nor a clear approach on “Europe”. Consequently, the EU has “called the shots” by being first with a mandate both for the WA (and political declaration for the future agreement)[viii] and for the future agreement itself.[ix]  Making use of Article 218(3) TFEU (the “classic” treaty provision for trade negotiations), the EU has treated the UK in practice as a third country if not since the referendum, then at least since the UK’s formal notification on 29 March 2017[x]. The (self-inflicted) economic harm to the UK caused by a failure of governance and compounded by the COVID-19 pandemic is without precedent.

The aim of the WA to facilitate a smooth transition, with minimum disruption and maximum legal certainty for citizens and economic operators has not been met. Nearly 5 years after the run-up to the referendum in 2016, lack of preparedness in the UK and resulting legal uncertainty is greater than ever.

The Political Declaration (PD) – a test of “good faith” in EU-UK relations?

Under Article 50, the WA sets out the arrangements for withdrawal, “taking account of the framework for its future relationship with the EU”. Although the PD does not have the same legal character as the WA, the principles of good faith and mutual trust apply, in the sense that the text was meticulously negotiated (and revised by the Johnson administration) and contains the agreed principles for elaboration in the future agreement. Provisions on the “level playing field” are at the heart of the PD.[xi]

The failure of the UK to respect both the WA and the PD (see further below) must be seen in the wider context of the UK’s approach to EU membership over 46 years (especially dating from Cameron’s failed attempt at re-negotiating the free movement of persons in 2015-16) and its conduct of the Brexit process, notably the often intemperate, ill-informed and hostile language used by senior politicians in the UK, including the present Prime Minister.  It is this consistent failure of foreign policy which conditions “the view from Brussels”, including on the prospects for future cooperation, even (or especially) now that a new agreement has been implemented on 1 January 2021.

The main pillars of the WA – “protecting the EU’s interests”.

Priorities for the EU were (and are):

  1. Protecting the rights of nearly 3.7[xii] million EU citizens in the UK;
  2. Preserving peace on the island of Ireland;
  3. A workable financial settlement;
  4. A transition period to preserve legal certainty by requiring complete continuity in the application of the EU acquis by the UK, although with the exclusion of the UK from all EU institutions.

The UK did not have any clear idea either of what the WA or the PD should contain. Consequently, the EU “set the agenda” throughout.[xiii] One of the clearest indications of the EU’s hegemony throughout the Brexit process is in Article 4(1) WA, which applies the unique features of EU law (direct effect and supremacy) in an agreement under public international law.[xiv]

Note that a transition period is not foreseen by or inevitable under Article 50 TEU. Imagine, for example, a small Member State (e.g. Malta) deciding to leave the EU and join the EEA or EFTA. All the steps foreseen in Article 50 (notification, negotiation of WA and preparation for accession to new arrangement) could be done without any transition period.  Because the UK did not “get its house in order”, it had no choice other than to accept the EU’s “hardline” solution.[xv]

When does the WA end? 

In theory, the WA would be replaced by a new bilateral arrangement between the UK and the EU. However, notwithstanding the entry into force of the TCA from 1 January 2021, certain provisions of the WA will continue in force for many years after 2020.[xvi]

By far the most important “hangover” of EU law, monitored and enforced by the Commission and the ECJ, concerns citizens’ rights.  This reflects the central importance for the Commission and all Member States in ensuring that the acquired rights of their (3.7 million) nationals who have moved to the UK are fully respected.   Ensuring respect for those parts of the acquis which are incorporated in the Ireland/Northern Ireland Protocol are likewise crucial for the EU, especially the Commission and Ireland.

Citizens’ rights (WA Part Two, Articles 9-39)

The rights referred to here are the right of residence, the right of exit and entry, the right of permanent residence, the rights of employment and self-employment, the right to equal treatment and non-discrimination, the rights of workers, the rights of self-employed persons, frontier-workers’ rights, the right to recognition of professional qualifications and the right to social security.

The voluminous primary and secondary acquis and related case law of the European courts is “imported” into the WA by its Part Two, to the extent defined there, including[xvii]:

  1. Directive 2004/38 on the right of citizens of the Union and their families to move and reside freely in the territories of Member States of the Union;
  2. Regulation 492/2011 on the free movement of workers in the EU;
  3. Directive 2005/36 on the recognition of professional qualifications;
  4. Directive 98/5 to facilitate the practice of the profession of lawyer on a permanent basis on a Member State other than that in which he is qualified;
  5. Directive 2006/43 on statutory audits;
  6. Directive 74/556 on the distribution of toxic products;
  7. Regulations 883/2004, 987/2009 and Directive 859/2003 on the coordination of social security systems.

Article 36 WA provides a “dynamic” aspect to the application of EU social security law to the UK after the end of the transition period.  When the basic regulations are amended or replaced after the end of the TP, the new measures are to be applied to and in the UK, following discussion in the Joint Committee.  When social security measures are discussed in the Administrative Commission, the UK shall have the status of observer!  “It may, where the items of the agenda relating to this Title concern the UK, send a representative to be present in an advisory capacity, to the meetings of the Administrative Commission and to the meetings of the bodies referred to in Articles 73-74 of the regulation on the coordination of social security systems, when such items are discussed.”   However, by derogation from Article 8 WA, the UK will be allowed to take part in the Electronic Exchange of Social Security Information (EESSI) and bear the related costs.

Two further provisions in particular illustrate the extent to which the WA and EU law will impact the UK for many years to come. Article 39 on “life-long protection”, which provides that “the persons covered by this Part shall enjoy the rights provided for in the relevant Titles of this Part for their lifetime, unless they cease to meet the conditions set out in this Title”.

Articles 158 and 159 of Part Six on “consistent interpretation and application”, specifically “references to the Court of Justice of the European Union concerning Part Two” and “monitoring of the implementation and application of Part Two.”    Cases which arise at first instance within 8 years of the end of the transition period (i.e. before the end of 2028) may be referred for a preliminary ruling.  Cases involving the issue of residence documents under Articles 18 and 19 WA may be referred for preliminary rulings more than 8 years after the end of the transition period. 

Article 159 requires the UK to establish an independent authority with powers equivalent to those of the Commission:

 “to conduct enquiries on its own initiative concerning alleged breaches of Part Two by the administrative authorities of the UK [notably the Home Office] and to receive complaints from Union citizens and their family members for the purpose of conducting such enquiries. The Authority shall also have the right, following such complaints, to bring a legal action before a competent court or tribunal in the UK in an appropriate judicial procedure with a view to seeking an adequate remedy.”

With the exception of Part Four of the WA on the transition period, no other aspect of the WA illustrates so clearly:

  1. The attribution of third country status to the UK (formally from 31 January 2020, but in reality from 29 March 2017 when the UK “triggered” the Article 50 TEU process), notably by the exclusion of the UK from all EU institutions, bodies, agencies, committees etc. under Article 7 WA;
  2. The priority attached by the EU throughout the Brexit process to the “protection of the Union’s interests”;  and
  3. The “extra-territorial” extension of the EU acquis to the UK as a third country, to the maximum extent possible, both under the TP and thereafter.

The EU’s insistence on the adoption of “level playing field” disciplines by the UK in the negotiations for a future bilateral agreement is simply another example of the EU’s approach to all international negotiations. It reflects the reality of power politics, which enables a Union of 27 sovereign States, the largest economy and market in the world, with a population nearly 8 times greater than that of the UK, to impose its own rules on third countries, at least to the extent that they are dependent on access to EU markets.

Continued circulation of goods placed on the market before the end of the TP

Uncertainty for economic operators[xviii] involved in trade between the UK and the EU at the end of 2020 and early in 2021 may be compounded by the application of the current acquis to goods “placed on the market” or “made available on the market” before the end of December 2020 (Article 41- 42 WA).  These goods will retain “Union status” under Article 47 WA “where such goods move from the customs territory of the UK to the customs territory of the Union, or vice versa, provided that the movement started before the end of the TP and ended thereafter”.

Of special importance in view of COVID-19, Article 45 WA requires the UK and/or the EU to “make available without delay the marketing authorisation dossier of a medicinal product authorised by a competent authority before the end of the TP”. Presumably this has been done for the Pfizer and other   vaccines authorised in the UK.

Challenges for UK (and EU) customs authorities at the end of 2020 and early 2021.

In addition to the (reported) lack of preparation by the UK customs authorities for the new customs and other frontier rules which will apply from 1 January 2021, they will need to apply existing EU law to goods covered by Articles 41-47 and relevant new rules to goods “placed on the market”, “made available on the market” and where “movement started” on or after 1 January 2021. 

Similarly, goods for export to the EU retain “Union status” provided that the movement of these goods started before the end of the TP.  Proof of movement is by provision of a transport document relating to the goods and must be effected “for every movement by the person concerned” by any of the means allowed under EU customs law. Special rules apply for air and sea transport between the UK and the EU. Specific time-limits also apply for non-Union goods in temporary storage or subject to any of the special customs procedures[xix] at the end of the TP. Some of these time-limits end 12 months after the release of the goods.[xx]  UK (and EU) customs authorities could therefore be involved in the parallel application of two different customs regimes, including the settlement of customs debts, more than 12 months after the end of the TP.

Article 98 WA provides for administrative cooperation between the UK and Member States in 12 types of procedures listed in Annex VI WA.  These procedures may be launched within a period of 3 years after the end of the TP but concerning facts which occurred before the end of the TP.  Article 100 WA provides for mutual assistance for the recovery of claims relating to taxes, duties and other measures for 5 years after the end of the TP for claims which became due before the end of the TP.

By way of an exception to Article 8 WA which provides that the UK “shall cease to be entitled to access any network, any information system and any database established on the basis of Union law” at the end of the TP[xxi].  Articles 50 and  100(2)WA provide a limited exception for customs procedures which extend beyond 31 December 2020, provided that the UK reimburses the EU for the actual costs incurred by the Union as a consequence of facilitating that access”.  This provision is replicated, mutatis mutandis, for VAT and excise procedures (see below).[xxii]

VAT and excises

The UK’s exit from EU VAT and excise law[xxiii] at the end of 2020 raises issues similar to those in the customs field. Northern Ireland will remain subject to EU VAT rules under the Protocol on Ireland/Northern Ireland. For Great Britain, EU VAT rules and procedures will continue to apply to “goods dispatched or transported from the territory of the UK to the territory of a Member State or vice versa, provided that the dispatch or transport started before the end of the TP and ended thereafter”[xxiv].   EU VAT will continue to apply until 5 years after the end of the TP”, with regard to the taxable person’s rights and obligations in relation to transactions with a cross-border element between the UK and a Member State that took place before the end of the TP”.    Refund applications however must be submitted “at the latest on 31 March 2021” and  amendments to tax returns with regard to services supplied in an EU Member States from the UK must be submitted by 31 December 2021.[xxv] Mutual assistance for the recovery of claims relating to taxes applies for 5 years after the end of the TP for claims that became due before the end of the TP.

In the light of criticisms made by economic operators (including freight-forwarders) of the inadequate preparations and communications by the UK authorities, and taking into account the complexity of customs and tax procedures, it would not be surprising if, in the weeks and months to come, trade between the UK and the EU did not suffer significant disruption.  The situation at the border between Northern Ireland and the Republic of Ireland is of course of special concern, in the absence of physical border controls (see below).

Intellectual property rights

Continued reciprocal protection after the end of the TP,  is guaranteed under the WA for trade marks, Community designs, plant variety rights, geographical indications of origin, international registrations designating the Union, unregistered Community designs and databases. Persons who have registered or been granted such rights before the end of the TP, “shall, without any re-examination, become the holder of a comparable registered and enforceable intellectual property right in the UK under the law of the UK”.

Ongoing police and judicial cooperation in criminal matters[xxvi]

In general, procedures initiated or action taken under any of the relevant EU instruments before the end of the TP may be completed thereafter. These include mutual legal assistance requests, European arrest warrants where the person was arrested before the end of the TP, freezing or confiscation orders, judgements received and new criminal proceedings initiated before the end of the TP. However, after the end of the TP, the UK may no longer transmit requests for information under the European Criminal Records Information System.

Similarly, requests under the Schengen Implementing Convention, for mutual assistance and cooperation between customs administrations, for cross-border surveillance or investigations, by Financial Intelligence Units, for asset recovery or for passenger information, before the end of the TP are to be implemented even after the end of the TP. 

The UK may also use the communication Infrastructure on alerts issued in the Schengen Information System for no longer than 3 months after the end of the TP, “to the extent strictly necessary for the purpose of exchanging such supplementary information”. The UK is also entitled to use (in derogation from Article 8 WA) , for no longer than one year after the TP, the Secure Information Network Application (SIENA), to the extent strictly necessary to implement the ongoing procedures referred to above.  In both cases, the UK is to reimburse the expenses incurred in its use of these systems.

Ongoing judicial cooperation in civil and commercial matters[xxvii]

In general, the recognition and enforcement of judgements, decisions, authentic instruments, court settlements and agreements which occur before the end of the TP are covered.  Similarly judicial and extra-judicial documents received for service and requests for the taking of evidence in civil or commercial matters before the end of the TP are to be covered by the relevant EU legislation.

Data and information processed or obtained before the end of the TP or on the basis of the WA[xxviii]

In essence, the aim of this Title is to ensure that, after the TP and assuming that no adequacy decision has been taken by the Commission with respect to the UK, that the UK continues to provide the same level of protection under EU law to personal data received during EU membership from companies and administrations in other Member States. Similarly, EU law on the protection of EU classified information and Euratom classified information, as well as on industrial security in cases involving tendering, contracting or grant award procedures and on cryptographic products is to apply to the UK after the end of the TP. 

There is (at least potentially) no time-limit indicated for these obligations in the WA.  In the absence of an EU adequacy decision, Articles 70-74 WA will continue in force indefinitely.

Public procurement cases initiated before 31 December 2020.

The principle of “continuity” or “winding up unfinished business” based on the relevant EU acquis on 31 December 2020,  applies to “procedures launched by contracting authorities or contracting entities from the Member States or the UK before the end of the TP and not yet finalised on the last day of the TP”.  A procedure has been “launched” when “a call for competition or any other invitation to submit applications has bene made in accordance with the relevant rules.”[xxix]

In a further derogation from the exclusion of the UK from EU data bases after 31 December 2020, Article 78 WA allows the UK for a period not exceeding 9 months from the end of the TP  to make use of the e-Certis data base for the storage of information and other documentary evidence used in procurement procedures.

Euratom-related issues[xxx]

In essence, this part of the WA addresses the consequences, notably as regards the ownership, rights of use, consumption and safeguards for fissile materials in the UK, as an independent nuclear State outside Euratom. The WA marks the end of the EU’s legal responsibility for the UK’s compliance with relevant international obligations, such as those under the IAEA or the Treaty on the non-proliferation of nuclear weapons.  Articles 81 and 82 WA create obligations for the UK, which are not time-limited, to implement and maintain a safeguards regime “of equivalent effectiveness and coverage” as that provided by the EU and “ensure that any specific obligations under agreements concluded by the Community in relation to any nuclear equipment, nuclear material or other nuclear items present” in the UK, are fulfilled with regards to third countries and international organisations.

Special fissile materials in the UK belonging to the Community at the end of the TP, are to become “the property of the persons or undertakings that have unlimited right of use and consumption of those materials at the end of the TP”.  Such materials may be deposited with the Euratom Supply Agency in accordance with the Euratom Treaty.  Contracts may be concluded between the Agency and the owners of the materials in the UK for the supply of the materials to persons or undertakings established outside the UK.  “Member States, persons or undertakings that have the unlimited right of use and consumption of special fissile materials present on the territory of the UK at the end of the TP shall retain that right”.

“Horizontal” or “cross-cutting” provisions, extending the reach of EU law to and in the UK beyond 2020

Of potentially greater political importance than the “sectoral” issues (above) are the WA “continuity” provisions on cases before the ECJ, infringement procedures against the UK, competition and state aids cases, anti-fraud cases and proceedings before the EU Intellectual Property Office.

Pending or new cases in the ECJ

Article 86 WA provides that the ECJ has continuing jurisdiction in cases brought by or against the UK before the end of the TP.[xxxi] It also has jurisdiction in preliminary references from UK courts and tribunals made before 31 December 2020.[xxxii]

New cases may be brought by the Commission against the UK if the latter has failed to fulfil an obligation under the Treaties or Part Four of the WA (transition period) within four years after the end of the TP, under Article 258 or 108(2) TFEU (state aids).

Administrative proceedings (infringements, state aids, OLAF investigations etc.)

Article 92 WA provides for “continuity” in infringement, competition and state aids cases, as well as infringement procedures brought by the European Securities and Markets Authority (ESMA) under the regulations on credit-rating agencies and OTC derivatives, central counterparties and trade repositories.  The same article defines the point at which such procedures are initiated.

Under Article 92(4) WA, the Commission is to provide the UK with a list of all “individual ongoing administrative procedures” falling under Article 92(1) within 3 months of the end of the TP, except for cases brought by ESMA, EBA and EIOPA where the Commission has 1 month after the end of the TP to notify the UK of outstanding cases.

State aids and OLAF cases

Article 93(1) provides that the Commission has 4 years after the end of the TP  to initiate new cases on aids granted before the end of the TP. The Commission’s competence in such matters continues after the 4 years for cases initiated within the 4 year period.  Under Article 92(5), the Commission “shall be bound in relation to the UK by the applicable case law and best practices, as if the UK were still a Member State.”  The Commission must notify the UK of any new case within 3 months of initiating it.

On anti-fraud cases, the Commission (OLAF) has 4 years to initiate new cases involving facts which occurred before the end of the TP or customs debt arising after the end of the TP from the discharge procedures referred to in Article 49(1) WA (ending of temporary storage or special customs procedures).  Like the Commission in state aids cases, OLAF remains competence after the 4 year period in cases started before the end of that period. OLAF must inform the UK within 3 months of the initiation of a new investigation.

Article 95(1) WA confirms that decisions addressed to the UK or to natural or legal persons either before or after the end of the TP are binding on the UK. The ECJ has exclusive jurisdiction for the judicial review of such decisions. In theory therefore the ECJ could still be deciding cases under the WA, possibly 6 or 7 years after the UK’s withdrawal.

Article 96 WA provides for the continuity of other reporting procedures involving plant varieties, greenhouse gases and ozone-depleting substances and vehicle emissions, with derogations from Article 8 WA being provided to allow the UK to access relevant EU data bases of the Kyoto Protocol Registry, the Central Data Repository of the European Environment Agency and the Business Data Repository.

Financial provisions – “balancing the books”

The “settling of accounts” had the highest media profile in the early stages of the Brexit negotiations, but is highly technical and perhaps less controversial than originally thought.  Even here however, “power politics” played its part.  Article 133 WA provides:

“Without prejudice to the applicable Union law concerning the Union’s own resources, all amounts, liabilities, calculations, accounts and payments referred to in this Part shall be drawn up and implemented in euro.”

Article 136(1) WA makes provision for the UK’s contribution to and participation in the Union budget after 2020:

“The applicable Union law concerning the Union’s own resources relating to financial years until 2020 shall continue to apply to the UK after 31 December 2020”.

A further illustration of the hegemony exercised by the EU in all aspects of the Brexit process is in Article 136(3)(d):

“by way of derogation from Article 7 of this Agreement, the representatives or experts of the UK, or experts designated by the UK,  may, upon invitation, exceptionally attend, without voting rights, the meetings…..such as the Advisory Committee on Own Resources”.

Article 138(1) WA provides that Union law is to apply after 2020 in relation to the UK’s participation in the implementation of the Union’s programmes and activities committed under the MFF 2014-2020 or previous financial perspectives, “until the closure of those Union programmes and activities.”

Limited derogations are granted to the UK under Articles 7 and 8 WA, so that UK experts may be invited to attend meetings of the relevant EU committees and access relevant data bases.  

Article 138(5) provides that the EU may exempt the UK from certain obligations, “provided that such technical measures  respect the principle of sound financial management and do not result in an advantage in favour of the UK or the UK beneficiaries compared to other Member States or third countries participating in the same programmes and activities financed by the Union budget”.

Articles 142-3 and 152-157 WA make further provision for UK liabilities after 2021, in particular the pension rights of EU civil servants, contingent liabilities relating to loans for financial assistance, EFSI, EFSD and the external lending mandate, the UK’s participation in the European Development Fund and “Agencies of the Council”, such as the European Defence Agency, the European Institute for Security Studies, the European Union Satellite Centre, as well as the costs of the Common Security and Defence Policy operations:

“Based on the accounts of the agencies, to the extent that the relevant liabilities have not been provisioned on 31 December 2020, the UK shall pay its share of the following liabilities in accordance with its contribution key for each of these agencies on the basis of the audited accounts on 31 Deember 2020:

  1. Pension liabilities for the personnel of the European Defence Agency, the European Institute for Security Studies and the European Union Satellite Centre;
  2. Any liabilities arising from the liquidation of the Western European Union.

Finally, Article 160 WA provides for the jurisdiction of the ECJ in the interpretation and application of EU law under Articles 138 (1) and (2) on the UK’s participation in Union programmes adopted under the MFF after 2020.

Monitoring and enforcing the Withdrawal Agreement

The UK’s failure to respect its commitments in the Political Declaration, as well as in the WA (specifically in the case of the Irish Protocol and arguably in certain cases under the citizens’ rights provisions), means that the EU will attach even greater importance to monitoring UK legislation (and its implementation) giving effect to the WA.

Article 5 WA provides:

“The Union and the UK shall, in mutual respect and good faith, assist each other in carrying out tasks which flow from this Agreement. They shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising from this Agreement and shall refrain from any measures which could jeopardise the attainment of the objectives of this Agreement. This Article is without prejudice to the application of Union law pursuant to this Agreement, in particular the principal of sincere cooperation.”

With the exception of the continuing role of the ECJ after the TP described above, the enforcement of the WA is based on the “classical” dispute settlement procedures which are common in bilateral and multilateral agreements. These combine bilateral consultations, back up by binding arbitration. These procedures are set out in Part Six of the WA. They are broadly analogous with dispute settlement procedures under the Dispute Settlement Understanding (DSU) of the WTO.

The importance of the role of the Joint Committee[xxxiii] and its Specialised Committees (especially those on citizens’ rights and the Irish Protocol) established under Article 164 WA has already been established in the disputes over the Irish Protocol and citizens’ rights. Its role after 1 January 2021 will be crucial. Its decisions, even if these are to be made by “mutual consent”,[xxxiv] are binding and “shall have the same legal effect as this Agreement” (i.e. direct effect and supremacy over incompatible UK law).[xxxv]

An arbitration procedure may be initiated by either Party if no mutually agreed solution has been found in 3 months, or earlier if both agree. Requests for the establishment of an arbitration panel are to be addressed to the other party and to the International Bureau of the Permanent Court of Arbitration. By the end of the TP, the Joint Committee must establish to list of 25 persons who are willing and able to serve as members of the arbitration panel.[xxxvi] Panels comprise 5 members. Panel members are proposed by the UK and the EU (two each) with the chairperson being agreed between them or, if this is not possible, by the Secretary General of the PCA.[xxxvii]

Arbitral decisions are to be made within 12 months from the establishment of the panel. Urgent cases are to be decided in 6 months.[xxxviii] Panel rulings are binding and the parties are to implement them, within a reasonable period of time (if necessary to be determined by the panel), in good faith.[xxxix] Rules on the review of measures taken to comply with panel rulings, as well as on temporary remedies in case of non-compliance are set out in Articles 177-181 WA.

The continuing role of the ECJ

Perhaps the most sensitive part of the WA (and there are many) is the provision in Article 174 WA on disputes raising “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 UK has complied with its obligations under Article 89(2)[xl]”.  The arbitration panel may not rule on these matters but must refer them to the ECJ. The ECJ’s ruling is binding on the arbitration panel.  The procedures for compliance are those summarised above. The sensitivity of this provision in the current political climate, perhaps especially as regards the WA provisions on the Irish Protocol (see below), citizens’ rights and the financial settlement, do not need emphasis today.

The Protocol on Ireland/Northern Ireland – at the heart of EU-UK relations now and for years to come – a litmus test for the UK?

Without doubt, the “Irish Border” issue was at the centre of the re-negotiation of the WA by the Johnson administration in October 2019. Its management after 2020 is likely to remain the most contentious issue in EU-UK relations, with or without a deal.  Even if there is a new agreement in place on 1 January 2021, the Protocol will (in all likelihood) continue to apply, unless the same level of customs and border security is achieved in any new UK-EU bilateral agreement (see further below for a more detailed discussion of the Protocol).

The Protocol is rare, if not unprecedented, in international law.[xli]  As amended by the Johnson administrations’ negotiations with the EU in October 2019, it effectively subjects one distinct region (or province) of a State to foreign laws, including their interpretation, amendment and enforcement, over which it has no (or at least very limited) control. It is at least a partial abandonment of sovereignty. The requirement for border controls inside the territory of an island State like the UK (“down the middle of the Irish Sea”) is also unusual if not unprecedented in international law.

The underlying motivation for the Protocol, shared by the EU, the UK and the Republic of Ireland, is the preservation of peace on the island of Ireland, symbolised by the Good Friday or Belfast Agreement. Since 1998, the EU supported the implementation of the Agreement with the establishment of  committees covering many aspects of cross-border relations[xlii].  Article 11 of the Protocol specifically refers to “the necessary conditions for continued North-South cooperation, including in the areas of environment, health, agriculture, transport, education and tourism, as well as in the areas of energy, telecommunications, broadcasting, inland fisheries, justice and security, higher education and sport”.

The Protocol contains 40 pages including a main text of 18 articles and 7 annexes.  The legal and technical complexity of the texts (especially the annexes) reflects the diverse economy in Northern Ireland, combining manufacturing, agriculture, fisheries and services. The movement of people (families, workers, students, tourists and service providers) across the border is facilitated by the retention of the Common Travel Area, as confirmed in Article 3 of the Protocol.[xliii] 

The effective monitoring and enforcement of the Protocol is at the heart of the EU’s concerns, especially given the consensus that controls at the border itself (the “hard border”) must be avoided.[xliv]  The fact that, at least for trading purposes, Northern Ireland remains a part of the EU’s internal market increases (in the eyes of some) the risk of fraud, circumvention or diversion of trade. A particular challenge for customs authorities will be to distinguish the export of goods from Great Britain destined for consumption in Northern Ireland (including those imported into the UK from third countries), from those intended for re-export to the Republic and perhaps onward to other Member States in the EU (see below).

Reconciling Northern Ireland’s place in the UK’s customs territory and internal market with its adoption of EU internal market rules.

The final three paragraphs of the Preamble to the Protocol recall that “Northern Ireland is part of the customs territory of the UK and will benefit from the UK’s independent trade policy” and “the importance of maintaining the integral place of Northern Ireland in the UK’s internal market” and “that the rights and obligations of Ireland under the rules of the Union’s internal market and customs union must be respected.”

The key economic provisions of the Protocol are those in Articles 3-10 covering the Common Travel Area, the definition of the customs territory of the UK, customs and the movement of goods, the protection of the UK internal market, technical regulations (including assessments, registrations, certificates, approvals and authorisations). VAT and excise, the single electricity market and state aid. In these areas, as set out in detail in the Annexes to the Protocol, the UK (on behalf of Northern Ireland) must not only ensure that the existing acquis is accurately implemented in Northern Ireland, but also that the evolving acquis is also correctly transposed into law in Northern  Ireland and enforced. Article 13(4) of the Protocol lays down the procedure to be followed in the Joint Committee on this crucial matter.

For the EU, Article 12 on implementation, application, supervision and enforcement is crucial.  Important background to the EU’s position on enforcement generally (including the Withdrawal Agreement itself and any future trade agreement) are doubts concerning the capacity of HMRC to monitor and enforce border controls.  In a recent case involving the import of textiles and clothing into the UK from China, complaints were made to the Commission and OLAF that serious under-valuation had occurred at the UK border, resulting in substantial losses of revenue to the EU budget. This was attributed by some to the lack of resources in HMRC.  This has raised questions over the capacity of HMRC to monitor trade across a “soft” border in Ireland, as well – more generally-  as their ability to cope with increased administrative procedures under WTO or FTA procedures, with the EU and other third countries.

The EU’s concerns in this regard have been greatly exacerbated by the UK’s approach to the Internal Market Bill, which the UK openly accepted as being in breach of international law.  The fact that the Commission chose to initiate infringement proceedings against the UK under Article 5 of the Withdrawal Agreement (alleging a breach of the fundamental principle of good faith) reflects the lack of trust, mutual confidence and respect which has characterised the Brexit process as a whole, including the negotiations for a Withdrawal Agreement and, perhaps especially, the UK’s breach of its commitments on the level playing field made in the Political Declaration.

The Internal Market Bill and the Ireland/Northern Ireland Protocol – whither the rule of law now?   [Note:  this part of these notes was written before the removal of the offending provisions before the final adoption of the Bill]

The key provisions in the Internal Market Bill (as originally introduced) from an EU perspective are:

Clause 42: giving Ministers the power to disapply or modify export declarations and other exit procedures;

Clause 43:  empowering Ministers to make regulations in connection with the interpretation and application of Article 10 of the Protocol on state aids, including the possible modification or disapplication of Article 10;

Clause 45 provides that  any regulation made under Clauses 42 and 43 would have effect “notwithstanding any relevant international or domestic law with which they may be found incompatible or inconsistent.”

The UK (Secretary of State for Northern Ireland) admitted that these provisions of the IMB would breach international law “in a very specific and limited way”.

The House of Lords has voted to remove these provisions. The Bill now returns to the Commons, which may re-insert the clauses. Meanwhile, EU-UK negotiations on a future agreement are in their final days.  It is reported today (Tuesday) that a solution has been found (in the Joint Committee) which would enable the UK to remove these clauses from the Bill.  The introduction of these provisions was not sufficient to cause the EU to break off negotiations, although this action (and reaction) by the UK will have had a significant further adverse effect on the trust, respect and mutual confidence, which is essential not only to the negotiation of international agreements, but also their implementation in good faith.

The special case of Northern Ireland – full powers for EU institutions in enforcing the key provisions of the Protocol

Monitoring and enforcement of the Protocol is crucial for the EU and especially for the Irish Republic. Increased illicit movements of goods, fiscal fraud, counterfeit, contraband – for which the Irish border has been infamous in the past –  would now create difficulties for Ireland in its trade relations with the rest of the EU, even to the point of raising the possibility of controls on exports from Ireland to France, Spain or other EU destinations.

Article 12 of the Protocol makes special provision for its implementation, application, supervision and enforcement.  Article 12(2) provides that:

 “Union representatives shall have the right to be present during any activities of the  authorities of the UK related to the implementation and application of the provisions of Union law made applicable  by this Protocol, as well as activities related to the implementation and application of Article 5 [customs, movements of goods]…….the UK shall facilitate the presence of such representatives  and shall provide them with the information requested……”.[xlv]

In refusing a Commission request (in April/May this year) for the opening of an office in Belfast to facilitate the process referred to above, the UK appear already to have breached the spirit if not the letter of this provision.  However, the Union has the possibility to revert to this matter in the Specialised and Joint Committees.[xlvi]

More specifically, Article 12(4) provides that, as regards the second subparagraph of Article 12(2) (the exchange of information on customs and the movement of goods), Article 5 (customs and movements of goods, 7 (technical regulations, assessments, registrations, certificates, approvals and authorisations), 8 (VAT and excise), 9 (single electricity market) and 10 (state aid),  “the institutions, bodies, offices, and agencies of the Union shall in relation to the UK have the powers conferred upon them by Union law. In particular the ECJ shall have the jurisdiction provided for in the Treaties in this respect. The second and third paragraphs of Article 267 TFEU (preliminary references) shall apply to and in the UK in this respect.”

In addition, any legislative acts adopted by the Institutions acting under Article 12 (4) are to have direct effect and prevail over incompatible national rules in Northern Ireland.[xlvii] Article 13(4) requires the EU to inform the UK in the Joint Committee when any new legislation is adopted falling within the scope of the Protocol. Failure to agree on the addition of any such measure to one of the Annexes to the Protocol would entitle the EU “to take appropriate remedial measures”.[xlviii]

Article 12(6) and (7) ensure equal rights for UK lawyers and the UK with their EU counterparts in administrative and judicial procedures arising under paragraph 4.

Reflecting the fact that Northern Ireland will remain subject indefinitely[xlix] to evolving  EU law and practice, Article 13(2) provides that, “notwithstanding Article 4(4) and (5) WA, the provisions of this Protocol referring to Union law or concepts or provisions thereof shall in their implementation and application be interpreted in conformity with the relevant case law of the ECJ”. 

This is in contrast to Article 4 WA which provides a “cut-off” point for ECJ case law at the end of the TP.  Note however that Article 18 provides that “within 2 months before the end of the initial period [4 years from the end of the TP] and any subsequent period [ also 4 years, if a majority of Members of the Northern Ireland Assembly, present and voting, agree], the UK shall, provide the opportunity for democratic consent in Northern Ireland to the continued application of Articles 5-10,” consistently with the 1998 Agreement.

The importance of security considerations in Northern Ireland is recognised by the application of Articles 346 and 347 TFEU in the context of the Protocol.  Similarly, the close relationship between the Protocol and the Belfast (Good Friday) Agreement is recognised in Article 14(b) which empowers the Specialised Committee to “examine proposals concerning the implementation and application of this Protocol from the North-South Ministerial Council and North-South implementation bodies set up under the 1998 Agreement”. The rights of individuals as set out in Article 2 of the Protocol also fall within the remit of the Specialised Committee under Article 14(c).

The unique challenges of the Irish Protocol

The Protocol is, in an already unique legal document, an extraordinary abdication of control over its territory by a sovereign State.  In ceding legislative, executive and judicial control over a substantial part of the economy, the UK has sown the seeds for continuing trade frictions with Ireland and the EU, as well as putting at risk more than 30 years of relative stability as a result of the 1989 Belfast Agreement. 

Of particular concern, in my view, is the fact that:

  1. Northern Ireland is and remains a part of the customs territory of the UK and may be covered by the UK’s agreements with third countries[l], “provided that those agreements do not prejudice the application of the Protocol”; [li] but
  2. Customs duties must be applied to goods entering Northern Ireland from Great Britain if they “are at risk of subsequently being moved into the Union, whether by itself or forming part of another good following processing”;[lii] and
  3. Substantial parts of the EU’s acquis on equal treatment,[liii] customs and the free movement of goods including commercial defence,[liv] VAT and excises,[lv] the electricity market,[lvi] state aids[lvii] and agricultural support[lviii] are to be applied in Northern Ireland on an ongoing basis, when many of these areas are also covered in the UK’s bilateral agreements with third countries.

Notwithstanding the provisions in Article 6 of the Protocol for the “protection of the UK internal market”, the role of the Joint Committee (and its specialised subcommittee) will be crucial in reconciling the parallel application of two legal regimes in Northern Ireland[lix].  Article 6(2) provides that “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 (emphasis added).”

The application of EU indirect tax law (VAT and excises) in Northern Ireland is particularly sensitive for the EU in view of the cross-border fraud and circumvention which has occurred in the past.  Article  8 provides that the UK (HMRC) is to be responsible for the application and implementation of these rules and the collection of VAT and excises. VAT exemptions and reduced rates applied in Ireland are to be applied in Northern Ireland.

Of similar sensitivity for the EU is the issue of state aid.  In short, Annex 5 to the Protocol applies substantial parts of the EU state aids acquis to Northern Ireland, including rules and procedures on agricultural aids. Article 10(2) does however allow the UK to “support the production  of and trade in agricultural products in Northern Ireland up to a determined maximum overall level of support and provide that a determined minimum percentage of that exempted support complies with the provisions of Annex 2 to the WTO Agreement on Agriculture”.

Conclusion – the Brexit process and the Withdrawal Agreement – the view from Brussels

More than 4 years after the 2016 referendum, the EU has not only (with great reluctance) accepted that Brexit is a fait accompli, but has moved on, driven (as always) by external threats and most recently the impact of the COVID-19 pandemic.  Nonetheless, the geographical proximity and economic importance of the UK, as well as the deeply intertwined nature of their economies after 46 years convergence, means that the achievement of a comprehensive framework agreement for their future relations will always be a priority for the EU.  This will remain the case even if a “thin” FTA (principally on trade in goods) is concluded in the coming days.  The EU would not prefer to repeat its experience with Switzerland with the UK. On the other hand, in any continuing negotiations with the UK (for example on services), the EU will always take as a priority the protection of the EU’s interests, as has been the case in the Brexit process since 2016.

For the EU, relations with the UK will always be unique. An economically strong UK is part of the EU’s vital interests. The same is true for the UK’s approach to the rule of law and fundamental rights; which is why doubts about the UK’s continued membership of the European Convention on Human Rights, the apparent disregard of the hard-won EU acquis on cooperation on civil and criminal justice and the blatant breach of political and legal commitments in the Political Declaration and the Withdrawal Agreement were received with shock and dismay by the UK’s partners in Europe.  Similarly, the EU views with dismay the growing fragmentation of the “United” Kingdom. Even if the EU is formally “neutral” on issues such as Scottish independence and Irish reunification, the fact that – like the prolonged Brexit process –  these developments would lead to years (decades even) of political and legal uncertainty, is not in the EU’s interests at a time of unprecedented global uncertainty.

Finally, it is clear that relations with the UK are now only one of the EU’s priorities.  The fact that the Johnson administration will in all probability remain in power for 4 more years, thus ruling out any significant change in the UK’s European policy, will alone underline the need for the EU to move on.  

In its December meeting, in addition to dealing with the conclusion of negotiations with the UK, the European Council focussed on the COVID-19 crisis, climate change, security (the fight against terrorism), the banking and capital markets union and external relations (especially EU-US relations, the situation in the Eastern Mediterranean and relations with Turkey).  In all of these areas, the UK’s contribution is missed. However, given the declining influence of the UK in European affairs over the last 5 years (or perhaps longer) – and the UK’s exclusion from all EU consultation and decision-making processes during the transition period – the principal immediate focus of the EU will be to ensure that:

  1. The Withdrawal Agreement in all its aspects especially citizens’ rights and the Ireland/Northern Ireland Protocol are fully and accurately implemented in UK law;
  2. The TCA is accurately transposed and implemented in good faith in UK law;
  3. That in areas which fall outside the TCA, the UK’s trade policy towards the EU and more generally is fully in line with its WTO obligations.

[i] In some respects, it could be said that the UK’s approach to the current negotiations  – which are for a preferential trade agreement under GATT Article XXIV (6) – has been naïve, in expecting the EU simply to “cut and paste” provisions from other agreements (e.g. with Canada or Japan), rather than tailoring its negotiating position to take account of the economic size and geographic proximity of the UK.  “Protecting the Union’s interests” has been at the core of the EU’s negotiating position since the mandate for the negotiation of the WA was drawn up in 2017.

[ii] Article 4(1) WA.

[iii] Perhaps especially in Washington, Tokyo and Beijing, as well as other important trading partners of the UK, such as the Commonwealth countries.

[iv] Including the annexed Political Declaration which, though not legally binding, is an integral part of the WA under Article 50 TEU.

[v] On 21 March till 22 May 2019; on 10 April till 31 October 2019; and on 19 October 2019 till 31 January 2020.  The WA was signed by the two Parties on 24 January 2020.

[vi] The UK of course formally withdrew from the EU and became a third country on 31 January 2020, when the Withdrawal Agreement entered into force.

[vii] Settling outstanding financial commitments and allowing existing procedures to be completed (e.g. competition, state aid, infringement and anti-fraud cases which were ongoing on the date of withdrawal).

[viii] 22 May 2017 – approval by European Council of Commission negotiating mandate.

[ix] 25 February 2020.

[x] The “protection of the Union’s interests” is a theme running through the EU’s negotiating position both of the WA and the future agreement.

[xi] See paras. 2, 3, 21 and especially Part XIV, para. 77 which could not be more explicit:  “Given the Union and the United Kingdom’s geographic proximity and economic interdependence, the future relationship must ensure open and fair competition, encompassing robust commitments to ensure a level playing field……To that end, the Parties should uphold the common high standards applicable in the Union and in the UK at the end of the transition period in the areas of state aid, competition, social and employment standards, environment, climate change and relevant tax matters……..”

[xii] In 2019.  1.3 million UK citizens live in the EU in 2020.

[xiii] Council guidelines of 29 April and 13 December 2017 and 23 March 2018, based on proposals by the Commission and agreed in consultations with the Parliament.

[xiv] Normally, in accordance with the dualist principle of international law, treaty rules are only applicable in national law to the extent that they have been transposed by Parliament.

[xv] I am not aware of any other international agreement where a sovereign State comparable to the UK (except as part of a post-War settlement) was required to apply law decided by a third party, without playing any part in its formulation, interpretation or application.

[xvi] In theory of course, any provisions of the WA which remain in force after 2020 could be adopted or adapted in any future agreement. The Protocol on the Irish border is an example of this.

[xvii] A full list of the measures applicable to the social security coordination aspects of Part Two of the WA on citizens’ rights is set out in Annex 1 to the WA.

[xviii] Importers, exporters, freight-forwarders, customs agents etc.

[xix] Union transit, customs warehousing, temporary admissions, end-use, inward processing and outward processing.

[xx] See WA Annex III.

[xxi] 31 such IT systems covering customs, VAT and excises procedures are listed in Annex IV WA.

[xxii] Article 53 WA.

[xxiii] Regulations 2006/112 and 2008/118.

[xxiv] For excise goods the criterion is that the movement of goods under a duty suspension arrangement and in respect of the movement of goods after release from consumption from the territory of the UK must occur before the end of the TP and end thereafter (Article 52 WA).

[xxv] Article 51 WA.

[xxvi] Articles 62-65 WA

[xxvii] Articles 66-69 WA

[xxviii] Articles 70-74 WA

[xxix] Articles 75-78 WA

[xxx] Articles 79-85 WA

[xxxi] This includes appeals from, and references back to, the General Court.

[xxxii] On timing, Article 86(3) WA provides that proceedings are considered to be brought at the moment  at which the document initiating the proceedings has been registered at the ECG or the General Court.

[xxxiii] The Joint Committee’s Rules of Procedure are set out in Annex VIII to the WA.

[xxxiv] Article 166(3) WA

[xxxv] Article 4(1) WA.

[xxxvi] Members of the arbitration panel must be  “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 recognised competence and who possess specialised knowledge or experience of Union law and public international law. That list shall not comprise persons who are members, officials or other servants of the Union institutions, of the government of a Member State, or of the government of the UK”.

[xxxvii] Note the provisions of Article 171 (5-9) WA on the “fall-back” role of the Secretary General of the PCA in nominating arbitrators in the case of the failure of the parties to agree.

[xxxviii] Article 173 WA.

[xxxix] Articles 175 and 176 WA.

[xl] Implementation of rulings of the ECJ is cases brought before or after the end of the TP (pending and new cases referred to in Articles  86 and 87 WA).

[xli] The Preamble to the Protocol refers to the fact that it addresses “unique circumstances” requiring a “unique solution”.

[xlii] Waterways Ireland, the Food Safety and Promotion Board, the Trade and Business Development Body (InterTrade Ireland), the Special EU Programmes Body (PEACE IV and INTERREG VA), the Language Body and the Foyle, Carlingford and Irish Lights Commission.

[xliii] The Preamble to the Protocol refers to the fact that “the UK’s withdrawal from the Union gives rise to substantial challenges to the maintenance and development of North-South relations.”

[xliv] The Preamble underlines the Parties’ “firm commitment to no customs and regulatory checks or controls and related physical infrastructure at the border between Ireland and Northern Ireland.”

[xlv] Article 17 provides explicitly that the Union and the UK shall counter fraud and any other illegal activities affecting the financial interests of the Union or the financial interests of the UK.”

[xlvi] See Article 12(3).

[xlvii] Article 12(5).

[xlviii] Article 13(4).

[xlix] Article 13(8) provides that “any subsequent agreement between the Union and the UK shall indicate the parts of this Protocol which it supercedes. Once a subsequent agreement between the Union and the UK becomes applicable after the entry into force of the WA, this Protocol shall then, from the date of application of such subsequent agreement and in accordance with the provisions of that agreement setting out the effect of that agreement on this Protocol, not apply or shall cease to apply, as the case may be, in whole or in part.”

[l] Including the WTO, where Northern Ireland may be included in the territorial scope of the UK’s Schedules of Concessions annexed to the GATT 1994.

[li] Protocol Article 4

[lii] “At risk” is defined in Article 5(2) as any good (a) that will not be subject to commercial processing in Northern Ireland and (b) fulfils the criteria established by the Joint Committee in accordance with the fourth subparagraph of Article 5(2).

[liii] As set out in Annex 1 to the Protocol

[liv] As set out in Annex 2 to the Protocol. Note that the sectoral acquis is particularly onerous, including motor vehicles (including agricultural and forestry tractors), lifting and handling appliances, gas appliances, pressure vessels, measuring instruments, construction products,, electric and radio equipment, textiles and footwear, cosmetics and toys, recreational craft, explosives and pyrotechnical articles, medicinal products, medical devices, substances of human origin, chemical, pesticides and biocides, waste, environment and energy efficiency products,, marine equipment, rail transport equipment, food (general, hygiene and ingredients), GMOs, live animals, animal disease control,, animal identification, breeding and welfare, plant heath, official controls and veterinary checks, sanitary and phytosanitary products, intellectual property, fisheries and aquaculture and “other”.

[lv] As set out in Annex 3 to the Protocol

[lvi] As set out in Annex 4 to the Protocol

[lvii] As set out in Annex 5 to the Protocol

[lviii] As set out in Annex 6 to the Protocol

[lix] An important aspect of this “parallelism” is the system provided for in Article 7 of the Protocol for a separate indication for Northern Ireland (“UK(NI)”) or “United Kingdom/Northern Ireland”,  as well as a distinguishable numeric code.

New UK sanctions regimes in force today

Maya Lester QC

The UK has new sanctions regimes that come to force today.  The UK is no longer implementing EU sanctions (because the Brexit transition period has ended). OFSI notice here with guidance from the UK sanctions regulator. In brief:

  • There is a new consolidated list of asset freeze targets to reflect UK designations made under Sanctions Act regulations. These are not all the same as the EU sanctions list, eg 113 people / entities that were listed by the EU are not UK-listed.
  • OFSI has published a bridging document to help facilitate sanctions screening as a result of the changes to the list.

Brick Court Chambers will be discussing the new UK sanctions regimes at lunchtime on 22 January 2021.  Details to follow.

European Union (Future Relationship) Bill

Lord Anderson of Ipswich KBE QC @bricksilk at the Second Reading debate

My Lords,

These Agreements fairly reflect the negotiating priorities of their signatories: these included, on our side, a dogmatic and substantively empty notion of sovereignty that confounds the reputation we once enjoyed as Europe’s canny pragmatists. Having as a young man in the office of Commissioner Lord Cockfield observed the removal of precisely the red tape that now returns to constrict us, my enthusiasm for this deal has its limits. In the security field, a particular regret is the loss of access to the immensely useful SIS II database. We must hope that dogma on the European side does not defeat the data adequacy determination on which so much else will depend.

But given the dismal alternative, I greet these Agreements with relief, see much in them that is good, and focus today on the terms of the Bill itself.

I would describe it as an essay-crisis Bill.  Four increasingly expansive styles may be spotted in its hastily assembled pages.

The first style, seen in the treatment of criminal records at the start, is the careful hand-threading of these agreements into existing law. On VAT fraud and social security, a more broad-brush approach is taken: whole protocols to the Agreement are simply pasted into domestic law – whether seamlessly or not, only time will tell.

Thirdly, we have delegated powers. These clauses feature elements that your Lordships found exorbitant in the 2018 EU Withdrawal Bill, including a power to create new criminal offences punishable by up to two years in prison, and a bootstraps power to amend the Bill itself, if “appropriate”. Henry VIII has been on the steroids again.

Finally, to cover any gaps left by even these broad provisions, we have clause 29, which requires our judges to give effect to domestic law “with such modifications as are required for the purposes of implementing” the Agreements. The objective is noble: but implementation often requires choices: and to impose those choices on the courts is to push them towards the forbidden ground of policy. The existing legal doctrines of direct effect and strong interpretation have inherent limits which avoid that result. Clause 29 contains no such limits. Perhaps it is an afterthought. It certainly needs knocking into shape.

This is a rushed Bill – inevitably so – which I strongly regret that we are in no position to scrutinise or to improve. But as Baroness Taylor has said, our committees will scrutinise it after it becomes law. If necessary improvements are identified, I hope we will find a way of making them.

Henry VIII Powers in The European Union (Future Relationship) Act 2020

Fergus Randolph QC1

The European Union (Future Relationship) Bill [“the Bill”] is about to receive Royal Assent and become The European Union (Future Relationship) Act 2020. The Bill – 80 pages – and the Explanatory Notes thereto – 77 pages – were published by the Government less than 24 hours before Parliament started to debate its contents. One of the first decisions taken by the Commons Speaker was to confirm that there would be no time to debate any amendments to the Bill. Accordingly, the only issue for Parliament was whether there should be an act or not. Given that the Bill was seeking to implement the EU-UK Trade and Cooperation Agreement [“the TCA”], finalised on Christmas Eve, which agreement was described by the Prime Minister in the Government’s summary thereof as being one which “changes the basis of our relationship with our European neighbours from EU law to free trade and friendly cooperation”, one might have thought that time would have been found to debate the Bill properly. As is well-known, the European Parliament is taking its time to do exactly that, and the TCA itself allows for its provisional application prior to ratification.

The position would be more palatable if the Bill were simply a technical instrument to implement the TCA. However, the Bill seeks to do more by enlarging once again the might of the Executive through either executive fiat or by use of the ubiquitous Henry VIII powers.

Thus, section 29 of the Bill will have the effect, without more, of blessing inter alia all future relationship agreements. Such agreements are defined as including “any supplementing agreement or any agreement under, or otherwise envisaged (whether as part of particular arrangements or otherwise) by, an agreement falling within … [inter alia] the Trade and Cooperation Agreement.”2

As Professor King of UCL has noted, the provision can be translated in the following terms: “We don’t know what changes to the law are in fact required by this EU-UK agreement, but whatever they are, Parliament by operation of this clause makes them effective from the date this law comes into force.” As Professor King further notes “this is deeply unsatisfactory, arguably worse that broad delegated powers that entail some parliamentary scrutiny.”

Which brings one neatly onto Henry VIII. Section 31(1) provides as follows:
“A relevant national authority3 may by regulations make such provision as the relevant national authority considers appropriate (a) to implement the Trade and Cooperation Agreement, the Nuclear Coooperation Agreement, the Security of Classified Information Agreement or any relevant agreement, or (b) otherwise for the purposes of dealing with matters arising out of, or related to, the Trade and Cooperation Agreement, the Nuclear Coooperation Agreement, the Security of Classified Information Agreement or any relevant agreement.”

Section 31(2) provides that “Regulations under this section may make any provision that could be made by an Act of Parliament (including modifying this Act).”

As helpfully identified in the Explanatory Notes, the scrutiny procedures for such regulations is set out in Schedule 5 to the Bill. Paragraph 6 thereof provides that regulations4 made on or after 31 December 2020 “may not be made unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament.” – i.e. the draft affirmative resolution procedure. However, there are exceptions to this. First, those regulations not falling within the ambit of paragraph 6(2) of Schedule 5 can be made by way of a negative resolution procedure (or the equivalent thereof in the devolved administrations).5 However, where such regulations are to be made within two years of the end of the transition period (11pm GMT on 31 December 2020), then the negative resolution procedure may only be used where the relevant Minister or other relevant devolved authority has made a statement in writing to the effect that in the Minister’s opinion the instrument should be subject to such negative resolution procedure6 and that either the relevant committees of both Houses of Parliament have each made recommendations as to the appropriate procedure or that the relevant period has ended without such recommendations being made.7

Secondly, under paragraphs 14-17 of the Schedule, in so-called “urgent cases”, where a Minister of the Crown or equivalent other relevant devolved authority declares that “by reason of urgency, it is necessary to make the regulations without a draft being laid and approved”,8 then the ‘made affirmative resolution procedure’ will be applicable, whereby regulations can come into force without being debated but cannot remain in force unless approved by both Houses within 28 days.

As again noted by Professor King, section 31 of the Bill (as read with Schedule 5 thereto) “means that such powers can be used to create tertiary legislation (ie designate someone to make new legislation not subject to any parliamentary scrutiny) and permit the amendment of the Future Relationship Bill/Act itself if regarded by ministers as necessary to implement.” As he continues with some degree of understatement, both of those features were “quite controversial” when the EU (Withdrawal) Act 2018 was passed.

In conclusion, given the UK’s dualist legal system, it was always going to be necessary to incorporate the terms of the TCA into domestic law by legislation. However, what the Bill does is to go well beyond that, by giving the Executive a whole fresh suite of powers to exercise without any or any proper Parliamentary scrutiny.

1 This paper which has been prepared for BEG reflects the views of the author and any expression of opinion should not be taken to reflect the views of all BEG members.

2 ‘Supplementing agreement’ is defined as being one constituted as such by Article COMPROV.2 of the TCA, which provides as follows: “1. Where the Union and the United Kingdom conclude other bilateral agreements between them,such agreements shall constitute supplementing agreements to this Agreement, unless otherwise provided for in those agreements. Such supplementing agreements shall be an integral part of the overall bilateral relations as governed by this Agreement and shall form part of the overall framework. 2. Paragraph 1 shall also apply to agreements between the Union and its Member States, on the one part, and the United Kingdom, on the other part …”

3 Defined as comprising inter alios a Minister of the Crown.

4 Which amend, repeal or revoke primary legislation or retained direct principal EU legislation or create a power to legislate – see paragraph 6(2) of Schedule 5.

5 See paragraph 6(3) of Schedule 5.

6 See eg paragraph 8(3) of Schedule 5.

7 ‘Relevant period’ is defined in paragraph 8(10) of Schedule 5.

8 See eg paragraph 14(2) of Schedule 5.

Latest communication on Trade Remedies from the Secretary of State for International Trade.

Fergus Randolph QC and Sarah Lee QC

On 16 December 2020 the Secretary of State for International Trade published her final list of the anti-dumping and anti-subsidy safeguarding measures previously issued by the European Union which she has decided to maintain after 31 December 2020.  This follows a process in which the Secretary of State held a Call for Evidence consultation with United Kingdom Industry.  That process has now concluded and the UK will continue to apply the previous measures at the United Kingdom border in relation to those measures that have been maintained: see here.

The Trade Remedies Investigations Directorate (TRID) is conducting transition reviews in relation to a number of maintained measures and the status of these can be seen on the TRID’s website, along with non-confidential versions of documents on the file. The list on the website itself indicates which measures are currently undergoing a transition review (namely, those marked with ***). The website also indicates those EU measures that will be terminated, and therefore not carried over, as part of the UK’s independent trade policy. Interestingly, the Secretary of State has carried over measures on bicycles and electric bicycles coming from certain producer countries, which had been contentious. The comments note that UK producers had “contacted the Secretary of State with new evidence showing changes to UK production and/or market share of products covered by the EU’s existing measures on bicycles and electric bicycles”. This appears to have led to a shift from the view originally held by the Secretary of State, which was to let the anti-dumping duties expire.

The types of issues that are considered in a transition review are whether the application of the amount concerned (in a current anti-dumping or anti-subsidy remedy) is necessary or sufficient to remedy the detriment suffered and whether the injury would continue to occur if the remedy were to be lifted. The existing measure can be varied, changed or terminated. Each initiation notice lists potentially interested parties and sets a date by which they are invited to contact the TRID in order to make their representations. Similarly, the Secretary of State has decided on tariff rate quotas which will apply in the United Kingdom to those 19 steel products measures that that it has decided to transition following 31 December 2020, in order to provide continuity. These are contained in a determination made on 30 September 2020 under regulation 46(3) of the Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) Regulations and will come into effect on 31 December.  The UK will conduct a transition review of those measures in the 19 steel products areas in order to ensure that they fully reflect the UK’s needs. The TRID has published operational guidance on this transition review on its website: see here.

Lastly, the Secretary of State’s notice contains a reminder that after 31 December 2020 the United Kingdom government will operate its own independent trade remedies system. Further, it notes that applications can be made to the Trade Remedies Service if an industry member wants TRID to investigate imports which are causing or threatening to cause injury to a United Kingdom industry.

New SI confirms binding effect of “continued competence” Commission decisions even after the end of the Brexit transition period

Charlotte Thomas

The Government has published a new statutory instrument confirming that the European Commission will have “continued competence” in relation to competition and merger investigations begun before the end of 2020.

Decisions reached by the Commission in such “continued competence” competition infringement cases can therefore continue to found follow-on damages claims in the UK even if they are taken after 31 December 2020.

That’s the short version – the considerably longer and more convoluted version, which requires tracing through some labyrinthine SI amendments, follows.

The current position

The term “infringement decision” under Part I of the Competition Act 1998 is currently defined as including decisions of the European Commission that EU competition law has been infringed, as well as decisions of the CMA (or the Competition Appeal Tribunal on appeal from the CMA) that either EU competition law or domestic competition law has been infringed: s 47A(6).

Thus, when s 58A(2) of the Act (as amended to give effect to the Damages Directive) provides that the High Court and Competition Appeal Tribunal are “bound by the infringement decision once it has become final” where a claim is brought in respect of that infringement decision, that includes both EU competition infringement decisions of the Commission and EU and domestic competition infringement decisions of the CMA.

Decisions of the European Commission are therefore currently capable of founding so-called ‘follow-on’ damages claims in UK courts and many competition damages claims have been brought in the UK on just this basis.

Commission decisions are also of relevance where any decision in taken in relation to breaches of the domestic prohibitions contained in Part I of the Act under s 60, which requires questions under Part I to be determined “so far as possible” consistently with EU law, including having regard to “any relevant decision or statement of the Commission”.

But what will happen after Brexit takes effect at 11pm on 31 December 2020, following the end of the transition period?

The 2019 Regulations

The Government’s ‘no-deal’ competition law SI, the Competition (Amendment etc) (EU Exit) Regulations 2019 (SI 2019/93) (available here), as originally made, provided:

  • As to infringements of EU competition law, under para 14(2)(b) of Schedule 4, Part 6, after ‘exit day’ a claim relating to an infringement of EU competition law which occurred before exit day could be made as long as that claim could be made before exit day – importantly, para 14(3) specified that it does not matter whether the damage caused by the infringement occurred before or after exit day. Para 7(4)(a) of Schedule 4, Part 3, which applies to claims described in para 14(2) by virtue of para 15, specifically confirmed that references to EU competition infringement decisions of the European Commission “do not include a decision made on or after exit day”.
  • As to domestic competition infringements, under reg 30(3), a new s 60A was inserted into the Competition Act 1998 confirming that the duty of consistency with EU court decisions and the duty to have regard to relevant decisions or statements of the European Commission only apply in respect of such decisions or statements issued before exit day. Para 17 of Schedule 4, Part 6 then disapplied certain elements of reg 30(3) concerning disclosure from the investigation file in relation to domestic competition infringements that occurred before exit day.

The Withdrawal Agreement

The Withdrawal Agreement, which was agreed in October 2019 and which entered into force on 31 January 2020, provides for a different transitional rule in relation to decisions of the European Commission, by Article 92 (emphasis added):

“1. The institutions, bodies, offices and agencies of the Union shall continue to be competent for administrative procedures which were initiated before the end of the transition period concerning: (a) compliance with Union law by the United Kingdom, or by natural or legal persons residing or established in the United Kingdom; or (b) compliance with Union law relating to competition in the United Kingdom.

3. For the purposes of this Chapter: … (b) proceedings for the application of Article 101 or 102 TFEU conducted by the European Commission under Council Regulation (EC) No 1/2003 shall be considered as having been initiated at the moment at which the European Commission has decided to initiate proceedings in accordance with Article 2(1) of Commission Regulation (EC) No 773/2004”.

This creates a category of so-called “continued competence” cases, which secure the continued relevance of competition infringement decisions of the European Commission where two criteria apply:

  • Before the end of the transition period (i.e., before 11pm on 31 December 2020), the Commission has decided to initiate proceedings with a view to adopting a competition infringement decision under Council Regulation (EC) No 1/2003; and
  • The competition infringement has been committed by natural or legal persons residing or established in the UK, or relates to competition in the UK.

Article 95(1) of the Withdrawal Agreement further provides that decisions taken in such “continued competence” cases and addressed to the UK or to “natural and legal persons residing or established” in the UK must be treated as binding “on and in” the UK. Meanwhile, Article 95(2) confirms that the Commission continues to be competent to monitor and enforce commitments given and remedies imposed in or in relation to the UK in connection with antitrust and merger cases, unless it agrees to transfer that competence to the CMA.

The new 2020 Regulations

The Government has now published (on 26 November 2020) a statutory instrument which gives effect to Articles 92 and 95 of the Withdrawal Agreement in the UK after the end of the transition period: the Competition (Amendment etc) (EU Exit) Regulations 2020 (SI 2020/1343) (available here, with a helpful explanatory memorandum here).

The amendments made by the 2020 Regulations to the 2019 Regulations include the following points relevant to follow-on damages claims:

  • The 2020 Regulations replace all references in the 2019 Regulations to ‘exit day’ to ‘IP completion day’ – i.e., 11pm on 31 December 2020, when Brexit will actually take effect, at least as matters stand (European Union (Withdrawal Agreement) Act 2020, s 39).
  • The 2020 Regulations continue to provide in respect of EU competition infringements that Commission decisions issued before IP competition day are binding but Commission decisions after IP completion day are not, “except in relation to cases in which the European Commission has continued competence after IP completion day in accordance with Article 92 of the EU withdrawal agreement”: Part 1, reg 36(c) of the 2020 Regulations, amending para 7(3)(b) of Schedule 4, Part 6 of the 2019 Regulations (still applicable to para 14(2) by virtue of para 15). Thus, the concept of “continued competence” is defined directly by reference to Article 92 of the Withdrawal Agreement.
  • The 2020 Regulations further provide that these transitional provisions also apply where the claim is or includes a claim in respect of a domestic competition infringement which spans the end of the transition period (reg 39(5) and (8)).
  • The 2020 Regulations similarly permit competition infringement collective redress schemes to be founded on “continued competence” Commission decisions (reg 38).

The 2020 Regulations also contain important provisions allocating jurisdiction between the CMA and Commission where the Commission has “continued competence” in respect of competition investigations (regs 36-37) and merger control cases (regs 40-45, inserting a new Part 6A into the 2019 Regulations). They also require the CMA to monitor compliance in respect of transferred EU antitrust and merger commitments pursuant to Article 95(2) of the Withdrawal Act (reg 4, introducing new ss 40ZA-D to the Competition Act 1998, and reg 8, introducing new ss95A-B into the Enterprise Act 2002, respectively).

The CMA’s draft Guidance

Also worth noting in this regard is the CMA’s draft Guidance on the functions of the CMA after the end of the Transition Period (CMA125), published on 2 October 2020 (available here) and in respect of which the consultation closed on 30 October 2020 (available here).

Evidence for House of Lords on UK sanctions policy post Brexit

Maya Lester QC gave evidence on 27th October 2020 to the House of Lords EU Security and Justice Sub-Committee on UK sanctions post Brexit.  Lord Anderson of Ipswich KBE QC is a member of the committee. You can watch the evidence session here. The committee’s focus was on the role of the UK in EU sanctions, the impact of Brexit on UK and EU sanctions, the advantages and disadvantages of Brexit to sanctions policy, new autonomous UK sanctions regimes, and whether alignment or divergence is likely/desirable.

DIT update on steel safeguard measures

Fergus Randolph QC and Sarah Lee QC

On 30 September 2020, the Department for International Trade [“DIT”] published an update to its guidance on the UK’s trade remedies Brexit transition policy, concerning steel safeguard measures. 

As noted in the guidance, the UK has committed to maintaining EU safeguard measures after the end of the transition period, where there is a UK interest in doing so.  It will be recalled that safeguard measures temporarily restrict imports of specified goods to help relevant domestic industries adapt to new or temporary market conditions.  Safeguard measures may be applied where there has been an unforeseen surge in imports which has caused or is causing serious injury to the relevant domestic industry.

The Trade Remedies Investigations Directorate [“TRID”] conducted a transition review in relation to various EU steel safeguard measures to determine whether it would be appropriate to retain them after the end of the transition period.  It identified 19 product categories covered by the EU’s existing measures where UK production existed.  It therefore determined that the measures in question should “be transitioned in order to provide continuity to UK producers.”  The remaining 7 product categories covered by the EU’s existing measures did not have a requisite UK interest because there was no UK production of the products and accordingly tariff rate quotas [“TRQs”] on those products will cease as of 23:00 (London time) 31 December 2020.  A table with the different product categories and their treatment is set out below.

Product category numberSteel Product Categories subject to EU Safeguard MeasuresSubject to UK Safeguard Measures?
1Non-Alloy and Other Alloy Hot Rolled Sheets and StripsMaintain
2Non-Alloy and Other Alloy Cold Rolled SheetsMaintain
3AElectrical Sheets (other than GOES)Terminate
3BElectrical Sheets (other than GOES)Terminate
4AMetallic Coated SheetsMaintain
4BMetallic Coated SheetsMaintain
5Organic Coated SheetsMaintain
6Tin Mill productsMaintain
7Non-Alloy and Other Alloy Quarto PlatesMaintain
8Stainless Hot Rolled Sheets and StripsTerminate
9Stainless Cold Rolled Sheets and StripsTerminate
10Stainless Hot Rolled Quarto PlatesTerminate
12Non-Alloy and Other Alloy Merchant Bars and Light SectionsMaintain
13RebarsMaintain
14Stainless Bars and Light SectionsMaintain
15Stainless Wire RodMaintain
16Non-Alloy and Other Alloy Wire RodMaintain
17Angles, Shapes and Sections of Iron or Non Alloy SteelMaintain
18Sheet PilingTerminate
19Railway MaterialMaintain
20Gas pipesMaintain
21Hollow sectionsMaintain
22Seamless Stainless Tubes and PipesTerminate
24Other Seamless TubesTerminate
25ALarge welded tubesMaintain
25BLarge welded tubesMaintain
26Other Welded PipesMaintain
27Non-Alloy and other alloy cold finished barsMaintain
28Non-Alloy WireMaintain

Insofar as concerns the 19 product categories for which the safeguard measures are to be retained, the DIT collected historic trade flow data between the period 2015-2017 in order to be able to re-calculate the relevant TRQs.  Those recalculated TRQs are set out below:

Quarterly Volume of Country and Residual Tariff-Rate Quotas

Product Category Number Product Category Area/Country Year 3
From: 1/1/2021 To: 31/3/2021 (tonnes) From: 1/4/2021 To: 30/6/2021 (tonnes)
1 Non Alloy and Other Alloy Hot Rolled Sheets and Strips EU 147,130 148,765
Turkey 23,602 23,864
Other Countries 46,033 46,544
2 Non Alloy and Other Alloy Cold Rolled Sheets EU 69,037 69,804
South Korea 9,392 9,496
India 7,052 7,131
Other Countries 25,994 26,283
4A Metallic Coated Sheets EU 153,111 154,812
South Korea 11,475 11,603
Other Countries 58,957 59,612
4B Metallic Coated Sheets EU 166,037 167,882
China 30,355 30,693
South Korea 13,761 13,914
Other Countries 32,261 32,620
5 Organic Coated Sheets EU 31,093 31,439
Other Countries 1,063 1,075
6 Tin Mill products EU 32,390 32,750
China 3,842 3,885
Other Countries 4,219 4,266
7 Non Alloy and Other Alloy Quarto Plates EU 60,522 61,195
Ukraine 7,810 7,896
Other Countries 15,527 15,700
12 Non Alloy and Other Alloy Merchant Bars and Light EU 48,392 48,930
Turkey 11,278 11,403
Other Countries 8,237 8,329
13 Rebars EU 42,268 42,737
Turkey 16,297 16,478
Ukraine 11,274 11,399
Belarus 8,249 8,341
Other Countries 38,147 38,571
14 Stainless Bars and Light Sections EU 11,675 11,805
Other Countries 2,444 2,471
15 Stainless Wire Rod EU 233 235
Taiwan 59 60
USA 35 35
South Korea 26 27
Other Countries 18 18
16 Non Alloy and Other Alloy Wire Rod EU 63,925 64,635
Other Countries 4,060 4,105
17 Angles, Shapes and Sections of Iron or Non Alloy Steel EU 142,599 144,183
Other Countries 21,136 21,370
19 Railway Material EU 1,331 1,346
Other Countries 430 434
20 Gas pipes Turkey 13,527 13,678
EU 6,686 6,760
India 3,984 4,028
Other Countries 1,481 1,498
21 Hollow sections Turkey 32,387 32,746
EU 10,966 11,088
Other Countries 1,898 1,919
25A Large Welded Tubes Other Countries 15,722 15,897
25B Large Welded Tubes EU 17,022 17,211
Japan 1,471 1,487
South Korea 2,283 2,309
Turkey 1,653 1,671
Other Countries 1,850 1,871
26 Other Welded Pipes EU 19,729 19,948
UAE 11,720 11,850
Turkey 7,767 7,853
Norway 5,973 6,039
China 5,002 5,058
Other Countries 6,466 6,538
27 Non-Alloy and other alloy cold finished bars EU 7,144 7,223
Turkey 1,371 1,387
Russia 714 722
Other Countries 611 618
28 Non Alloy Wire EU 24,773 25,048
Turkey 4,336 4,384
China 2,918 2,950
Thailand 2,578 2,606
Other Countries 1,900 1,921

Developing countries listed in the DIT review are not subject to these TRQs, except in relation to certain products produced in Brazil, China, India, Saudia Arabia, Thailand, Turkey, Ukraine, UAE and Vietnam.

For each of the product categories concerned, a part of each tariff rate quota will be allocated to the countries and territories specified.  The remaining part of each tariff rate quota, shall be allocated on a first-come-first-served basis, based on a tariff rate quota established equally for each quarter of the period of application.  The drawings on each quarterly quota shall be stopped on the twentieth working day of the month following the end of the quarterly period. At the end of each quarter, the unused balances of the tariff rate quota shall automatically be transferred to the next quarter. No unused balance at the end of the last quarter of each year of application of the definitive tariff rate quota shall be transferred.  Where the relevant quota is exhausted for a specific country, imports from that country can access the residual tariff-rate quota for the same product category. This provision shall only apply during the last quarter of each year of application of the definitive tariff-rate quota.

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The importance of the Economic Interest Test in the UK’s new Trade Remedies Regime

Fergus Randolph QC and Sarah Lee QC

Introduction.

The UK’s new trade remedies regime contained in the Taxation (Cross-border Trade) Act 2018 (“2018 Act”) has an economic interest test which is different from that of any other jurisdiction. Some jurisdictions, e.g. US and Australia, have chosen not to have one at all. The test is designed to ensure that only remedies that are in the UK’s economic interests taken as a whole will be adopted.

The test is similar in nature to the public interest test which applies when the European Commission adopts anti-dumping or anti-subsidy measures. However, it is also unique, having been specifically created for the UK’s purposes, taking into account not only the EU experience but also that of other jurisdictions. There is, as yet, no decision applying the test, nor any judicial consideration of it. The law and practice in this area will therefore develop in the next few years.

This post provides some comments on the test, which will be applied when the UK starts to adopt its own trade remedies at the end of the Brexit transition period on 31 December 2020. We outline some of the test’s features below, as well as explaining how and at what stages according to the Government’s published Guidance the test will be applied, and we discuss briefly how it compares with the EU public interest test.

Brexit Transition

 As explained in the previous blog post of 3 August 2020 (here), the UK’s current trade remedies activity is carried out by the Trade Remedies Investigations Directorate (“TRID”), on behalf of the Secretary of State. At the moment, the TRID is limited to carrying out investigations where the EU already has trade remedies in place affecting UK industries and where there is a desire to replicate them, or else where the EU has opened an investigation into such cases. The TRID’s functions will be transferred to the TRA (a non-departmental public body) when the UK assumes full competence from the EU for its trade remedies at the end of 2020. At that stage, the Trade Remedies Authority (“TRA”) will investigate and will make recommendations to the Secretary of State on the remedies to be adopted in individual cases.

A new inquiry was opened on 30 July 2020 by the House of Commons International Trade Committee to look at the status, powers, operation and extent of parliamentary scrutiny of the TRA under the 2018 Act, as well as its interaction with the Northern Ireland Protocol of the UK-EU Withdrawal Agreement. Evidence could be submitted to the Committee for consideration until 18 September 2020. The House of Lords also discussed the Trade Bill 2019-21 on 8 September 2020, and the House of Lords Committee stage will follow in due course at a date to be arranged.

The Test

The requirements of the economic interest test are set out in paragraph 25 of Schedule 4 (anti-dumping and anti-subsidy) and paragraph 23 of Schedule 5 (safeguarding) of the 2018 Act. These two tests are essentially the same except that there is a presumption in the case of anti-dumping and anti-subsidy measures that the test is met (see paragraph 25(3) and the consequential adjustments in paragraph 25(4)) unless the TRA, or the Secretary of State as the case may be, is satisfied that the application of the anti-dumping or anti-subsidy remedy is not in the economic interest of the UK. There is no such presumption in the case of safeguarding remedies. It follows that where the latter are concerned, it will be necessary for the TRID currently, and the TRA and Secretary of State subsequently, positively to conclude that it is in the economic interest of the United Kingdom to apply them.

Anti-dumping remedies are available where goods are imported into the UK and sold at a price below the sales prices in their domestic market, or below the cost of production, causing injury to a UK industry in the goods. They can take the form of a requirement to give a guarantee under Schedule 4, paragraph 15; applying an anti-dumping duty to goods Schedule 4, paragraphs 17-20; or accepting an undertaking: (Schedule 4, paragraph 23).  Anti-subsidy remedies apply where the production or export of goods is subsidised in a manner which causes injury to the relevant UK industry. The remedies available for anti-dumping are listed in Schedule 4, paragraph 25(5)(a), and those for anti-subsidy cases – which are the same – are listed in paragraph 25(5)(b).

Safeguarding remedies can be adopted where there is an unforeseen surge in the quantity of imports of particular goods, which causes serious injury to UK producers of those goods. In such cases, the UK authorities can impose a provisional or a definitive safeguarding duty on goods or make goods subject to a provisional tariff rate quota or a tariff rate quota: (see Schedule 5, paragraph 23(4)). This step usually affords temporary relief and gives time to producers to adapt to the new situation.

Paragraphs 25 of Schedule 4 and 23 of Schedule 5 specify those elements which the authorities must have regard to so far as relevant when applying the economic interest test. They also include a “catch-all” requirement to take account of such other matters as the authorities consider relevant. The factors listed specifically are: the injury caused to the relevant UK industry (or, in the case of safeguarding remedies, the serious injury caused to UK producers); the economic significance of the affected industries and of consumers in the UK; the likely impact of the remedies on those parties; the likely impact on particular geographic areas or particular groups in the UK; and the likely consequences for the competitive environment and for the structure of markets for goods in the UK.  The reference to particular groups and the investigations into the structure of markets are amplified in guidance which is referred to below.

Guidance on how the test is to be applied

The UK’s Guidance published by the Department for International Trade (“DIT”) on 28 October 2019, https://www.gov.uk/guidance/trade-remedies-investigations-directorate-trid-dumping-and-subsidisation-investigations-guidance (“2019 Guidance) provides details on how TRID will apply the economic interest test. Further Guidance on the TRID’s approach contains some additional information on the economic interest test and how the TRID will assess the factors it must consider when conducting the test, amongst other things, but it also refers the reader back to the 2019 Guidance, which contains a more detailed overview. This second Guidance, most recently updated on 7 September 2020, is found  at https://www.gov.uk/government/publications/the-uk-trade-remedies-investigations-process/how-we-apply-the-economic-interest-test.

The 2019 Guidance reiterates the point in the legislation referred to above, namely that there is a presumption in anti-dumping and anti-subsidy cases that the economic interest test is met, but no such presumption arises in a safeguard case, where the TRID must positively demonstrate that the application of the measure is in the economic interest of the UK.

The 2019 Guidance goes on to state that a measure is not in the economic interest of the UK if the negative impacts are disproportionate to the positive impacts and explains that the burden of proof lies on TRID to demonstrate that this is the case. It is not enough simply to show that the costs of a measure outweigh the benefits. Presumably, this burden of proof is relevant where the initial presumption has been that the economic interest test has been met, but further considerations have led the TRID to consider that there are serious negative impacts in taking a relevant measure.  Further, as individual circumstances are likely to require different approaches in each case, the TRID will avoid an overly prescriptive approach.

The ‘Detailed factors to consider’ section of the 2019 Guidance expands on the factors listed in the legislation, referring in more detail to the sorts of information that the TRID/TRA will expect to be provided with and will be required to take into account. For example, in assessing the economic significance of affected industries and consumers, they will assess employment information which may come through answers to questionnaires or ONS data, production volumes, UK market share (using, for example, data such as HMRC trade data), value and volumes of exports, numbers and size distribution of firms (which may be sought through questionnaires to consumer groups) and consumer information (which the authorities may need to seek actively).

As regards the benefits of removing injury caused to UK industry, the TRID/TRA will undertake a forward-looking consideration of the proposed measures and of their expected effects on all UK industry regardless of whether a particular producer is also an importer or has any associations with foreign exporters. There may be positive or negative impacts on other industries which might be affected by the proposed measures such as downstream user industries, upstream suppliers, distributors or importers. The magnitude of these impacts, along with any impacts on consumer welfare, is to be assessed.  Short-term welfare impacts may be modelled, although the 2019 Guidance states, without further elaboration, that this may not always be possible or appropriate, and qualitative factors will be looked at alongside quantitative effects. The qualitative assessments referred to in the 2019 Guidance include details of how the market currently functions and the degree of competition (e.g. market shares, degrees of market concentration, pricing behaviour and price competition, profitability and levels of innovation, ranges of goods and quality).

The likely impact on particular groups is described in the 2019 Guidance as being concerned with groups mainly affected who are “likely to be particular consumer groups, or possibly particular groups of employees”. The likely consequences of measures for the competitive environment and for the structure of the UK market, compared to if they are refused, merits a separate section in the 2019 Guidance, which explains how the TRID will assess competition in the market. The 2019 Guidance notes that the evidence will come primarily from questionnaire responses and submissions from interested parties.

Practicalities

The assessment as to whether measures are in the economic interest of the UK is to be made in new investigations, review, expiry or interim investigations if the authorities have made an affirmative determination (either provisional or final), which means that they consider that a remedy can otherwise be imposed. Where the TRID takes a preliminary decision, making a recommendation to the Secretary of State, the decision will always include findings on the test. Similarly, after the end of 2020, provisional and final determinations by the TRA which find dumping, subsidising or a surge of imports causing injury to a UK industry to have taken place, will be required to include a definitive assessment of the economic interest test.

Information will be sought at different stages of the investigation. Much of it will not be publicly available and the authorities will actively seek it out. Material may be included as part of the information requested from interested parties through the use of questionnaires addressed to them. Interested parties are those who satisfy the definitions in Regulation 2 of the Trade Remedies (Dumping and Subsidisation) (EU Exit) Regulations 2019 and Regulation 2 of the Trade Remedies (Increase in Imports Causing Serious Injury to UK Producers) (EU Exit) Regulations 2019. These are: a government of the relevant foreign country; an overseas exporter or importer of the goods concerned or the goods subject to review; a trade or business association of producers, overseas exporters or importers of the relevant goods; a producer of the like goods (or in the case of safeguards, of directly competitive goods) in the UK; or a trade or business association of UK producers of the like goods.

Questionnaires can be sent to others, including devolved administrations, downstream user industries, distributors, upstream supplier industries, consumer groups, local authorities and trade unions. Others may decide to supply information during the investigation on their own initiative. The authorities can also contact industry experts, consider relevant publications (including on production and price data) and review previous investigations on the industry. They can also refer to official data from HMRC, ONS or other sources.  Although these alternative sources are not specified in the 2019 Guidance, presumably they would have to be of an official and reliable nature.

The impact of the test

The matters to be examined in the economic interest test are set out in the paragraphs of the Schedules to the 2018 Act referred to above, and they are also elaborated on in the two guidance documents we have mentioned.  Combined, these descriptions provide an extensive list of information which could be relevant to an investigation, together with details on how that information may be obtained by the decision-making authorities. This enumeration of factors points to the need for a thorough and detailed examination being conducted, and, at the very least the possibility of remedies being refused in certain cases.

Interested parties, and others who wish to contribute, are able to provide detailed and sophisticated evidence for consideration under the test, if they choose to do so. There will be simplified questionnaires for those possibly without the time or resources to provide lengthy responses to enhance participation. It remains to be seen whether or not the test plays a very active role in practice, and whether those who might contribute information will continue to feel incentivised to do so as a decisions start to be made. This will no doubt be influenced by the effectiveness of past submissions and the rigour of the reviews conducted.

As we said in introduction, the EU has a Union interest test which requires the Commission to examine whether imposing anti-dumping or anti-subsidy measures is in the overall interest of the EU “based on an appreciation of al the various interests taken as a whole, including the interests of the domestic industry and users and consumers”: see Article 21(1) of the Anti-Dumping Regulation (2016/1036) and Article 31(1) of the Anti-Subsidy Regulation (2016/1037).

Those Articles set out procedures to be followed in order to ensure that those who wish to provide information can do so. There is no similar provision in the legislation relating to safeguards (see Regulations 2015/478 and 2015/755), although a recital to the first of these regulations refers to the fact that “it falls to the Commission to adopt the safeguard measures required by the interests of the Union. Those interests should be considered as a whole and should in particular encompass the interests of Union producers, users and consumers” (Recital 11). Article 10(1) of Regulation 2015/478 refers to the fact that certain measures may be taken where the Union’s interest so requires. Article 15 talks of safeguard measures being taken “in order to safeguard the interest of the Union”. Regulation 2015/755 has similar references in Articles 9 and 13.

Like the UK’s economic interest test, the EU’s test is also designed to balance the various concerns of interested parties, effectively requiring the Commission to consider whether or not taking the step of introducing remedies would be proportionate. It seems that it has usually been carried out after the Commission had already provisionally determined the existence of a dumping or subsidy injury.

There appear to have been very few decisions refusing remedies on grounds that they are not in the interests of the Union: see the recent comments of Advocate General Tanchev in Case C-461/18 P Changmao Biochemical Engineering Co v Distillerie Bonollo SpA at paragraph 99. Rather, the Commission may, for example, decide that measures should only be for a limited duration looking at the negative effects of measures on consumers and other Community producers if they were continued for a longer period: see e.g. Case T-459/07 Hangzhou v Council at paragraph 190.

The UK authorities will also assess whether they should vary any elements of a proposed measure in order successfully to minimize any negative effects whilst retaining its benefits. In other words the test is not simply a pass/fail test, but it allows for readjustment or fine-tuning of the measures being considered. The elements of the remedy that can be varied are the duration, the type of duty or the scope of the goods on which the measure is imposed.

The UK’s test appears to place a very strong emphasis on gathering evidence which may well occur throughout the period of the investigation, although provisional or final determinations will only set out the TRID/TRA’s conclusions in relation to the test when and if an affirmative view on conduct leading to injury has been taken. It is not clear currently whether the investigations and decision-making in relation to the test will nonetheless occur in tandem with the investigations on conduct and injury, or only once an affirmative decision on remedy has been reached. It is possible that there may be some differences in approach therefore between the UK and the EU’s practice.  Whether this is so will emerge as the TRID and TRA begin to make their decisions.

The UK’s test has the potential to play a strengthened and more prominent role than has been the case to date with the EU test. Further, the fact that the issues will be considered thoroughly can only enhance the decision-making, generating confidence in the system and in the remedies imposed.

As with EU Commission findings, there is an opportunity for judicial challenge of UK decisions. Unlike the EU situation, there is also the opportunity to ask the TRA to reconsider its decision first: see Trade Remedies (Reconsideration and Appeals) (EU Exit) Regulations 2019, Regulations 10-15. The decisions that the authorities can be asked to reconsider include the refusal of requests to start an investigation, the rejection of an application following investigation and determinations on the amounts of anti-dumping or anti-subsidy duties. Where the request is unsuccessful (and also where the decision to be challenged is a decision of the Secretary of State), appeal lies to the Tax and Chancery Chamber of the UK’s Upper Tribunal, which will apply a judicial review rather than the “on the merits” test under consideration at the time the draft legislation was consulted on: see Regulations 16-18. The Upper Tribunal is likely to sit in a panel with some specialist members and be more inclined than the Administrative Court to hear oral evidence.

The case law of the Court of Justice shows the difficulties of mounting a successful challenge to a decision of the EU Commission on the public interest test. The assessment is regarded as an appraisal of complex economic situations, which it is not generally justiciable in the EU courts; see e.g. Case T132/01 Euroalliages at paragraphs 47-50; Hangzhou at paragraphs 181-3. It will be interesting to see how the Upper Tribunal approaches challenges to the assessments made under the UK economic interest test. This will no doubt be the subject of submissions and findings  as and when the Tribunal begins to apply judicial review principles in the particular circumstances of TRID, TRA or Secretary of State findings.

Conclusions

There is considerable scope under the UK’s new test for representations and evidence as to the effects of applying or not applying proposed remedies. In the case of anti-dumping and anti-subsidy remedies, it will be necessary to displace a presumption in order to persuade the relevant body not to impose a remedy. In the case of safeguarding remedies, the TRID or the TRA / Secretary of State will need positively to conclude that the test is met. It seems likely that the test will involve a careful and detailed substantive exercise with wide participation encouraged. It will be interesting to follow in due course the developing approaches of the TRID, the TRA, the Secretary of State and the Upper Tribunal to the new test as it starts to be applied.

New possibility to ask the Trade Remedies Investigations Directorate (TRID) to investigate need for a UK trade remedy where there is already an ongoing EU investigation

Sarah Lee QC

On 29 July 2020 the Department of Trade (DIT) announced a change in regulations expanding the TRID’s current powers to investigate whether or not UK trade remedy should be applied in cases of imports causing or threatening to cause injury to UK businesses.

The new investigations can be opened from 5 August 2020 and relate to imports already the subject of an existing EU investigation. The change is a step in the transition away from the EU’s exclusive competence to apply trade remedies benefiting industries in the UK and towards the UK’s sole responsibility for doing so from 1 January 2021 onwards.

Prior to 5 August 2020, the TRID had the power to commence investigations into whether existing EU measures should be replaced by the imposition of a UK remedy once the Brexit transition period ends on 31 December 2020.  So far the TRID has opened three such investigations – in February, March and July of this year. This most recent change allows the TRID, in addition, to open investigations into the possibility of imposing a trade remedy in respect of imports to the UK in cases where the EU has already commenced an investigation, but has not yet taken the decision to impose a remedy.

The TRID has been set up by the DIT as a temporary arrangement during the Implementation Period following the UK leaving the EU. From 1 January 2021, by which time the TRID’s functions will have become these of the Trade Remedies Authority (TRA), the TRA will be able to carry out not only these investigations, but also investigations into imports which have not been the subject of EU measures or of EU investigations. The TRA will be able to make recommendations that the Secretary of State imposes measures in respect of them where appropriate. The scope for trade remedies applying in the UK may well therefore increase with a UK focused Non Departmental Public Body looking specifically at applications made by those in the UK.

Trade remedies are aimed at preventing imported goods from being dumped on the UK market at prices below normal values (that is, below the normal cost of goods in their domestic market), or imports of subsidized goods, or a significant influx of imports of a particular product flooding the market. They are a familiar feature of the EU legal system and the ways in which the European Commission exercises these functions to prevent unfair trade practices are well-known.

The new mechanisms established by the UK will inevitably have certain differences, however. The UK’s system has been set up having looked not only at the EU’s legislation and practices, but at the relevant WTO agreements (the GATT, the Anti-Dumping Agreement, the Agreement on Subsidies and Countervailing Measures and the Agreement on Safeguards) also that from other jurisdictions, including Australia. One of the pre-condition tests that parties either applying for a measure or resisting one will have to address is whether it is in the economic interest of the UK or not to introduce a remedy after balancing the pros and cons of doing so. Detailed information is likely to be required.

The procedures relating to the investigations process and the systems set up to allow the review of the TRA’s decisions and appeals of decisions to the Upper Tribunal are all new. Businesses will therefore have to navigate the new requirements and the UK’s newly established procedures. The remedies that the TRA will be able to impose are anti-dumping duties or countervailing duties (which can be up to the lower of the dumping or subsidy margin, as the case may be, or the injury margin) or safeguard measures (that is, tariff increases or tariff rate quotas not targeted at a particular country) for a specified period.