Professor Steve Peers,
University of Essex
The most controversial provisions
in the recently proposed draft
of the Brexit withdrawal agreement were those relating to the Irish border.
They are tucked away at the end in a separate protocol, but they were soon
found and criticised as an EU attempt to “annex” the Northern Ireland economy
as a means to ensure no border checks were applied on the land border between
the UK and Ireland. Conversely, they were defended by those who argue that the
Leave campaign during the referendum, and the UK government since, have
promised no border controls, and that the Commission’s proposal only elaborates
upon what the UK government promised in the joint
report of December (discussed here).
It seems hard to reconcile the UK
government’s competing simultaneous objectives of avoiding border checks on the
Irish border, diverging from EU product standards, and eschewing checks on
trade between Northern Ireland and the rest of the UK. At present, it seems
possible that the talks on the whole withdrawal agreement will founder on this
issue – damaging the intention of avoiding a hard border as well as the many
other valuable objectives of that agreement.
In this post, I’ll first
summarise and critique the UK’s preferred plans and then the Commission’s
proposed text in the withdrawal agreement on this issue, proposing constructive
solutions in annexes to this blog post – which also annotate the proposed
Protocol on Irish border issues in detail. This builds on earlier proposals
I made on the border issues; and note I’ve also annotated the text of the
withdrawal agreement on the issue of a transition
period (or implementation period).
UK plans
The key issue with UK plans is
the promise to avoid a hard border with Ireland – made by the Leave campaign
during the referendum and upheld by the UK government since. Some have argued
that the border issue has nothing to do with the Good Friday agreement or the
EU, but this is missing the wood for the trees twice over: first because those
issues are all linked in the broader political context, and secondly because
the UK has made commitments on them as part of the Article 50 process.
The key commitment is this, from
the December joint report:
43. The United
Kingdom’s withdrawal from the European Union presents a significant and unique
challenge in relation to the island of Ireland. The United Kingdom recalls its
commitment to protecting the operation of the 1998 Agreement, including its
subsequent implementation agreements and arrangements, and to the effective
operation of each of the institutions and bodies established under them. The
United Kingdom also recalls its commitment to the avoidance of a hard border,
including any physical infrastructure or related checks and controls.
There are three options to this end, as agreed in paragraph
49 of the same report:
…The United
Kingdom's intention is to achieve these objectives through the overall EU-UK
relationship. Should this not be possible, the United Kingdom will propose
specific solutions to address the unique circumstances of the island of
Ireland. In the absence of agreed solutions, the United Kingdom will maintain
full alignment with those rules of the Internal Market and the Customs Union
which, now or in the future, support North-South cooperation, the all-island
economy and the protection of the 1998 Agreement.
The Commission’s withdrawal
agreement fleshes out the “full alignment” option, but not the other two
options, in the absence of any detailed proposals from the UK as to how either
of the other options could work. Their method of doing this is objectionable,
as I explain below; but the UK would certainly make its case easier if it made
some proposals on this issue. As the Prime Minister quite rightly said last
week, in her Mansion
House speech on Brexit policy:
…it is not
good enough to say, ‘We won’t introduce a hard border; if the EU forces Ireland
to do it, that’s down to them’. We chose to leave; we have a responsibility to
help find a solution.
There’s a technical problem
addressing the UK’s preferred options in the withdrawal agreement, since they
depend upon negotiations that would likely take place after Brexit day. But the
intention is for the withdrawal agreement to refer forward to the future
relationship (even if the Commission’s text doesn’t reflect that), in
accordance with the wording of Article 50. So I’ve suggested some text that
would be part of a protocol on the future relationship, distilled from the
Prime Minister’s recent speech.
Are those options technically
feasible? Supporters often refer to a study
for the European Parliament study on the issue. (See also the UK government paper
on a customs relationship after Brexit, and the broader discussion in this CapX
blogpost).
But the blogpost admits that “if the EU insists the December text must be
interpreted to preclude, for example, bonded warehouses anywhere near the border,
or cameras on roads leading to the frontier, then a technological solution
looks impossible”; and the suggested solution in the study for the European
Parliament refers to technology which refers to “opening the gate automatically”.
Needless to say, a gate is physical infrastructure; and you’ll have to go a looong way back from the Irish border to
find an area that voted to Leave the EU.
Some point to the EU’s customs
cooperation treaties with non-EU states; but they facilitate border checks, rather than remove them completely. For
instance the EEA treaty protocol
on border checks with Norway refers to “frontier posts” and “express lanes”. So
does the EU/Swiss customs
cooperation treaty. It’s argued that the US/Canada border is a model, but
that also entails facilitated border
checks.
In light of all this, and for
reasons discussed below, I’m leaving it to others to suggest the details of the
technical solutions that they envisage might be possible for the border issue.
Commission proposals
As a starting point, let’s
examine the contention that the Commission’s proposals on the Irish border do
no more than spell out what the UK agreed to in the December joint report. The
key points of what the UK agreed to were this:
49. The United
Kingdom remains committed to protecting North-South cooperation and to its
guarantee of avoiding a hard border. Any future arrangements must be compatible
with these overarching requirements. The United Kingdom's intention is to
achieve these objectives through the overall EU-UK relationship. Should this not
be possible, the United Kingdom will propose specific solutions to address the
unique circumstances of the island of Ireland. In the absence of agreed
solutions, the United Kingdom will maintain full alignment with those rules of
the Internal Market and the Customs Union which, now or in the future, support
North-South cooperation, the all-island economy and the protection of the 1998
Agreement.
50. In the
absence of agreed solutions, as set out in the previous paragraph, the United
Kingdom will ensure that no new regulatory barriers develop between Northern
Ireland and the rest of the United Kingdom, unless, consistent with the 1998
Agreement, the Northern Ireland Executive and Assembly agree that distinct
arrangements are appropriate for Northern Ireland. In all circumstances, the
United Kingdom will continue to ensure the same unfettered access for Northern
Ireland's businesses to the whole of the United Kingdom internal market.
Comparing this text to the
Commission’s proposal, the proposal does not
merely reflect what the UK agreed to. The UK did not agree to “full alignment”
with EU law as the main rule, with the other two options as subsidiary. It did
not agree to a text which treats Northern Ireland as distinct from the rest of
the UK: para 50 says exactly the opposite. It did not even agree that the “full
alignment” option would appear in the withdrawal agreement. As for the content
of that option, while some continued link with substantive EU law is
unavoidable, the UK did not agree to apply that law as such, or to continued
ECJ jurisdiction, or to continued powers for EU bodies, or to joint customs
controls with EU officials in Northern Ireland.
While the UK has failed to
present any text at all, the Commission has failed to explain the text it
proposed. None of its approaches to enforcement of the Protocol appear in the
EU’s customs union with Turkey, and so the obvious question is why they need to
apply here. Some of its specific proposals (continuing to apply data protection
law, or state aids law) have no obvious explanation.
Therefore, in the proposed new text
(Annex 1) and my annotation of the proposed Protocol (Annex 2) I suggest amendments
that would a) ensure the territorial integrity of the UK, and its internal
market, on equal footing with the Good Friday Agreement and the principle of
consent; b) restore the “full alignment” option to its agreed position as the third
priority, with text in a “future relationship” protocol about the two other
options; and c) remove the many excessive and disproportionate elements in the details
of the Commission’s “full alignment” proposal.
Conclusions
Some supporters of the Commission’s
proposals have argued that its strong defence of the EU27 position is only to
be expected. In general terms, this is correct, and is equally true of
countries around the world: Brexiters are surely the only people left on the
planet who believe that Trump’s intentions when negotiating a trade deal with
the UK will be in any way altruistic.
In the Northern Ireland context,
however, it is problematic. A solution to decades of conflict there was not the
result of the two communities pushing forward their positions as strongly as
possible, but of the willingness of each of them to try and find accommodation
with the other’s concerns. The Good
Friday agreement was a solution that satisfied the broad spectrum of the nationalist
community, but also the concerns and interests of the majority of the unionist
community too. It would never have been
feasible or legitimate without the consent of both.
From that perspective, therefore,
the Commission’s proposals obviously fail, with their inversion of the agreed options,
lack of recognition of concerns about territorial integrity, and unjustified
power-grabs concerning the implementation of the proposal immediately
aggravating the unionist side. The drafters of the Protocol seem unable to
conceive of the UK as a non-Member State of the EU. Perhaps it’s worth
remembering that in the new Black Panther
movie, the “revenge imperialist” was the bad
guy.
But while the Commission’s
drafters need to exorcise their inner Killmonger, many UK pundits need to
exorcise their inner Cromwell. Endless insults directed at Ireland, and cod
analyses of Irish politics (there’s a special place for the instant experts in
Irish politics who call the Taoiseach the “Irish Prime Minister”) have only
backfired. “Let’s take back control – of Ireland!” is not a serious argument. As
well as the Irish government, the nationalist community in Northern Ireland has
genuine concerns too; and we’re in danger of forgetting sometimes that a majority
in Northern Ireland voted Remain. If, as we’re sometimes told, the UK-wide
Leave vote of 52% was “overwhelming”, what the hell do we call the 56% Remain
vote in Northern Ireland?
The weird suggestions about
Ireland solving the problem by leaving the EU need to stop (to avoid a border, they
would anyway entail Ireland also joining a customs and economic union with the
UK: please do read Fintan O’Toole’s analysis
of the politics and historical context of “Irexit”). As I noted in the previous
post, the notion of Ireland leaving the EU – against the views of 88% of voters –
seems about as likely as the ghost of Eamon de Valera leading the next Orange
order parade. Let me add that the notion of Ireland rejoining the UK is about as likely as de Valera being joined there
by Michael Collins – as his same-sex partner.
So what should the UK suggest as
a reasonable compromise, from its side? I haven’t suggested any more detailed
text for a customs cooperation treaty, or a technical plan to ensure remote
control of the border, because I can’t.
I am not a specialist on customs law or customs operations. Indeed, I suspect
that most of those saying that such a plan would be incredibly simple – or simply incredible – are not
specialists in those fields either. The difference is that I am prepared to
admit it.
So this is, quite literally, the
most I can do to suggest constructive solutions to the border problem which
other people have created. And what have those other people done? First they
said there was no problem. Then they said it was the fault of the Commission.
Or Remainers. Or the Good Friday Agreement. Or Ireland. Or the UK government.
It’s never them; for the people who actually want Brexit rarely accept that
they have any responsibility for it. In the decades they fumed about the UK’s
EU membership, in the nine months before the Article 50 notice was sent, and in
the year since, all they’ve come up with is a study for the European Parliament,
a 14-page government paper, and some blogposts. Now they need either: a) to
engage with the criticism of their plans and amend them to find a workable way
forward; or b) to accept the fallback solution, and to negotiate a reasonable
variation on the Commission’s excessive suggestions; or c) to admit they lied
through their teeth and contemplate whether they still have a mandate.
In short, it’s time they either put a text out – or shut the
feck up.
Barnard & Peers: chapter 27
Photo: Business Insider UK
Annex 1
Suggested new text in
the main Withdrawal Agreement
Article 165A
Framework for future
relationship
This Agreement takes full account
of the agreed framework for the future relationship between the United Kingdom
and the European Union, in accordance with Protocol [x].
Article 166A
Ireland and Northern
Ireland
1. The Protocol on Ireland and
Northern Ireland sets out specific provisions on the rights of individuals, the
movement of persons, and border checks and economic cooperation.
2. Nothing in that Protocol or
the remainder of this Agreement shall affect the national identity or
territorial integrity of the United Kingdom or Ireland, or the Good Friday or Belfast Agreement of 10 April
1998, including that Agreement’s provisions regarding the constitutional status
of Northern Ireland and the principle of consent.
Comment: this suggested text would be a legal guarantee to
reassure those concerned that the proposals are an attempt to “annex” Northern
Ireland or create an economic division within the UK. The reference to “national identity or
territorial integrity” reflects in part the wording of Article 4 TEU, and the
other references are adapted from the preamble to the proposed Protocol.
Suggested text on customs in a new Protocol on the framework of the future UK/EU relationship
Annex – Protocol on the framework for the future
relationship between the European Union and the United Kingdom
Section x
Customs
In accordance with Article 2b of
the Protocol on Ireland and Northern Ireland, the arrangements to be negotiated
as soon as possible after the exit day will comprise either:
a) a
customs partnership between the UK and the EU, in which, at the border, the UK
would mirror the EU’s requirements for imports from the rest of the world,
applying the same tariffs and the same rules of origin as the EU for those
goods arriving in the UK and intended for the EU, removing the need for customs
processes at the UK-EU border. This would include a mechanism to ensure that the
UK would apply its own tariffs and trade policy for goods intended for the UK
market, and set out the modalities to ensure that both sides can trust the
system, comprising a robust enforcement mechanism; or
b) a
highly streamlined customs arrangement, comprising joint implementation of a
range of measures to minimise frictions to trade, together with specific
provisions for Northern Ireland.
This would
comprise general measures, as follows:
i) measures to
ensure the requirements for moving goods across borders are as simple as
possible, by waiving the requirement for entry and exit declarations for goods
moving between the UK and the EU, and allowing goods moving between the UK and
the rest of the world to travel through the EU without paying EU duties and
vice versa;
ii) measures to
reduce the risk of delays at ports and airports, including recognising each
other’s “trusted traders” schemes and drawing on the most advanced IT solutions
so that vehicles do not need to stop at the border;
iii) continued cooperation
to mitigate customs duty and security risks;
iv) measures to
reduce the cost and burden of complying with customs administrative
requirements, including by maximising the use of automation.
It would also comprise
specific measures for Northern Ireland, as follows:
i)
exemption of micro, small and medium sized
businesses;
ii)
a trusted trader scheme, as well as other
streamlined processes, for larger traders;
iii)
a mechanism for alignment of relevant UK and EU regulatory
standards.
Annex 2
The following is the text of the Protocol
on Ireland and Northern Ireland as proposed by the Commission. My
comments are in italics; suggested amendments are in italics and underlined.
I have not commented on the preamble.
Protocol on Ireland/Northern
Ireland
The Union and the United Kingdom,
HAVING REGARD to the historic
ties and enduring nature of the bilateral relationship between Ireland and the
United Kingdom;
RECALLING that the United
Kingdom's withdrawal from the Union presents a significant and unique challenge
to the island of Ireland, and reaffirming that the achievements, benefits and
commitments of the peace process will remain of paramount importance to peace,
stability and reconciliation there;
RECOGNISING that it is necessary
to address the unique circumstances on the island of Ireland in order to ensure
the orderly withdrawal of the United Kingdom from the Union;
AFFIRMING that the Good Friday or
Belfast Agreement of 10 April 1998 between the Government of the United
Kingdom, the Government of Ireland and the other participants in the
multi-party negotiations (the "1998 Agreement"), which is annexed to
the British-Irish Agreement of the same date (the "British-Irish
Agreement"), including its subsequent implementation agreements and
arrangements, should be protected in all its parts;
RECALLING the commitment of the
United Kingdom to protect North-South cooperation and its guarantee of avoiding
a hard border, including any physical infrastructure or related checks and
controls, and bearing in mind that any future arrangements must be compatible
with these overarching requirements;
RECALLING that the Joint Report
from the negotiators of the European Union and the United Kingdom Government on
progress during phase 1 of negotiations under Article 50 TEU on the United
Kingdom's orderly withdrawal from the European Union of 8 December 2017
outlines three different scenarios for protecting North-South cooperation and
avoiding a hard border;
HIGHLIGHTING that discussions on
the other scenarios may continue to be pursued in parallel, but that this
Protocol is based on the third scenario of maintaining full alignment with
those rules of the Union's internal market and the customs union which, now or
in the future, support North-South cooperation, the all-island economy and the
protection of the 1998 Agreement, and that it applies unless and until an
alternative arrangement implementing another scenario is agreed;
RECOGNISING that cooperation
between Northern Ireland and Ireland is a central part of the 1998 Agreement
and is essential for achieving reconciliation and the normalisation of
relationships on the island of Ireland, and recalling the roles, functions and
safeguards of the Northern Ireland Executive, the Northern Ireland Assembly,
and the North-South Ministerial Council (including cross-community provisions),
as set out in the 1998 Agreement;
ACKNOWLEDGING that this
cooperation across the full range of political, economic, societal and
agricultural contexts relies to a significant extent on common Union legal and
policy frameworks, as confirmed in the joint mapping exercise conducted by the
Union and the United Kingdom, and that accordingly the United Kingdom's
withdrawal from the Union gives rise to substantial challenges to the
maintenance and development of North-South cooperation;
MINDFUL that the rights and
obligations of Ireland under the rules of the Union's internal market and
customs union must be fully respected;
RECALLING the commitment of the
United Kingdom to protecting and supporting continued NorthSouth and East-West
cooperation across the full range of political, economic, security, societal
and agricultural contexts and frameworks of cooperation, including the
continued operation of the North-South Implementation Bodies;
AIMING to support current and
future common policies and approaches between Ireland and Northern Ireland in
accordance with the 1998 Agreement;
RECOGNISING the need to respect
the provisions of the 1998 Agreement regarding the constitutional status of
Northern Ireland and the principle of consent;
DESIRING to create a common
regulatory area on the island of Ireland in order to safeguard NorthSouth
cooperation, the all-island economy, and protect the 1998 Agreement;
HAVING REGARD to the devolution
arrangements between the United Kingdom and Northern Ireland in relation to the
common regulatory area;
RECOGNISING that Irish citizens
in Northern Ireland, by virtue of their Union citizenship, will continue to
enjoy, exercise and have access to rights, opportunities and benefits, and that
this Protocol should respect and be without prejudice to the rights,
opportunities and identity that come with citizenship of the Union for the
people of Northern Ireland who choose to assert their right to Irish
citizenship as defined in Annex 2 of the British-Irish Agreement
"Declaration on the Provisions of Paragraph (vi) of Article 1 in Relation
to Citizenship";
NOTING that Union law has
provided a supporting framework to the provisions on Rights, Safeguards and
Equality of Opportunity of the 1998 Agreement;
UNDERLINING that part or all of
this Protocol may cease to apply should a future agreement between the Union
and the United Kingdom be agreed which addresses the unique circumstances on
the island of Ireland, including by avoiding a hard border and protecting the
1998 Agreement in all its dimensions;
HAVE AGREED UPON the following
provisions, which shall be annexed to the Agreement on the withdrawal of the
United Kingdom of Great Britain and Northern Ireland from the European Union
and the European Atomic Energy Community ("Withdrawal Agreement"):
Chapter I
Rights of individuals
Article 1
Rights of individuals
1. The United Kingdom shall
ensure that no diminution of rights, safeguards and equality of opportunity as
set out in that part of the 1998 Agreement entitled Rights, Safeguards and
Equality of Opportunity results from its withdrawal from the Union, including
in the area of protection against discrimination as enshrined in the provisions
of Union law listed in Annex 1 to this Protocol, and shall implement this
paragraph through dedicated mechanisms.
2. The United Kingdom shall
continue to facilitate the related work of the institutions and bodies pursuant
to the 1998 Agreement, including the Northern Ireland Human Rights Commission,
the Equality Commission for Northern Ireland and the Joint Committee of
representatives of the Human Rights Commissions of Northern Ireland and
Ireland.
Comments: This text is based on paragraph 53 of the Joint
Report, which also noted that “EU law and practice has provided a supporting
framework” for such rules “in Northern Ireland and across the island of
Ireland”. Paragraph 1 adds the obligation to “implement this paragraph through
dedicated mechanisms.” The Annex referred to has not yet been filled in, but it
is likely to include Directive
2000/78, which prohibits discrimination on grounds of religion in
employment. The specific names of the bodies listed in paragraph 2 have been
added, as compared to the Joint Report.
Chapter II
Movement of persons
Article 2
Common Travel Area
1. The United Kingdom and Ireland
may continue to make arrangements between themselves relating to the movement
of persons between their territories (the "Common Travel Area"),
while fully respecting the rights of natural persons conferred by Union law.
2. The United Kingdom shall
ensure that the Common Travel Area and associated rights and privileges can
continue to operate without affecting the obligations of Ireland under Union
law, in particular with respect to free movement for Union citizens and their
family members, irrespective of their nationality, to, from and within
Ireland.
Comments: this text is based on paragraph 54 of the December
joint report, with the clarification that it applies also to non-EU family
members and the words “to, from and within Ireland”.
[Proposed new Chapter IIa
Border checks and economic cooperation
Comments: The text proposed by the Commission for Chapter III of
the Protocol does not respect the wording and structure of paragraph 49 of the
joint report, which refers to the future UK/EU relationship and technical
solutions as priority options for ensuring no hard border and North-South
cooperation. The following text would more closely reflect what the UK and the
EU27 agreed at that point.
Article 2a
Absence of border checks
The United Kingdom and the European Union shall refrain from
installing any physical infrastructure or related checks and controls at the
border between Northern Ireland and the Republic of Ireland.
Comments: This gives effect to the “no hard borders” part of
paragraph 43 of the Joint Report. Unlike the Joint Report, it does not refer
only to the UK’s obligations.
Article 2b
Ensuring absence of border checks and North-South cooperation
1. At the latest by the end of the [transition] [implementation]
period, the obligation in Article 2a shall be ensured by a [customs
cooperation] [customs union] agreement to be negotiated before that date
between the United Kingdom and the European Union in accordance with the
principles in [section x of protocol x], which shall include any provisions
necessary to ensure the absence of physical infrastructure or related checks
and controls at the border and the protection of North-South cooperation on the
island of Ireland.
Comments: This gives effect to the first option in paragraph 49:
“The United Kingdom's intention is to achieve these objectives through the
overall EU-UK relationship”. The first set of square brackets reflect the UK
government and EU27’s different description of the period after Brexit Day. The
second set of square brackets offers an alternative wording reflecting the
current UK’s government’s position and a potential future Labour government
position respectively. It may be possible to agree a customs treaty before the
main trade agreement between the EU and the UK, so the text reflects this.
The withdrawal agreement could also include a joint declaration, as
follows:
In order to give effect to Article 2b(1) of the Protocol on Ireland and
Northern Ireland, the parties agree to enter into formal negotiations as soon
as possible after the exit date on the basis of the draft [customs cooperation]
[customs union] agreement proposed by the United Kingdom, which shall give
effect to the principles in [section x of protocol x],.
This would give concrete effect to the first option in paragraph 49 of
the Joint Report. It presupposes that the UK tables a draft treaty as soon as
possible in 2018. The options in square brackets offer alternative wording
reflecting the current UK’s government’s position and a potential future Labour
government position respectively.
2. In the event that the agreement referred to in paragraph 1 is not
concluded, the United Kingdom will propose specific solutions to address the
unique circumstances of the island of Ireland, and the parties will negotiate
in good faith on that basis to ensure the absence of physical infrastructure or
related checks and controls at the border and the protection of North-South
cooperation on the island of Ireland by the end of the [transition]
[implementation] period.
Comments: Reflects the second option in paragraph 49.
3. In the absence of agreement pursuant to paragraphs 1 or 2 by the
end of the [transition] [implementation] period, Chapter III of this Protocol
will apply.
Comments: This reflects the third option in paragraph 49. Another
option (as suggested in my previous blog post) is to defer this discussion
until after Brexit Day, on the grounds that it: a) is premature in the absence
of discussions of the other options; and b) increases the risk that no
withdrawal agreement can be concluded, putting at risk the intention to avoid a
hard border as well as all the other objectives of the agreement.
4. Each party will establish mechanisms to ensure the implementation
and oversight of any specific arrangement to safeguard the integrity of the EU
Internal Market [and the Customs Union].
Comments: Based on paragraph 51 of the Joint Report. The precise
intention of that paragraph is not clear. The words in square brackets would be
removed in the event of a Labour government.
Chapter III
Common regulatory
area
Article 3
Establishment of a
common regulatory area
A common regulatory area
comprising the Union and the United Kingdom in respect of Northern Ireland is
hereby established. The common regulatory area shall constitute an area without
internal borders in which the free movement of goods is ensured and North-South
cooperation protected in accordance with this Chapter.
Comment: the second sentence is apparently adapted from the
wording of Article 26(2) TFEU: “The internal market shall comprise an area
without internal frontiers in which the free movement of goods, persons,
services and capital is ensured in accordance with the provisions of the
Treaties.” However, it should be noted that the proposed commitments relate
only to EU law on the free movement of goods, not other aspects of the single
market. Without any direct reference to the EU Treaty clause, the obligation to
follow the relevant case law in Article 12(2) of this protocol will presumably
not apply.
The assumption behind the text is that a very extensive link with EU
law on free movement of goods is required in order to satisfy the commitment in
para 49 of the joint report to “maintain full alignment with those rules of the
Internal Market and the Customs Union which, now or in the future, support
North-South cooperation, the all-island economy and the protection of the 1998
Agreement”. This assumption is not, however, explained.
The wording of the text seems to contemplate a separation between
Northern Ireland and the rest of the UK. This contradicts para 50 of the joint
report, which stated that “the United Kingdom will ensure that no new
regulatory barriers develop between Northern Ireland and the rest of the United
Kingdom, unless, consistent with the 1998 Agreement, the Northern Ireland
Executive and Assembly agree that distinct arrangements are appropriate for
Northern Ireland. In all circumstances, the United Kingdom will continue to
ensure the same unfettered access for Northern Ireland's businesses to the
whole of the United Kingdom internal market.”
Suggested amendment: a
new paragraph could make clear that this chapter, if it is applied, does not
necessarily separate Northern Ireland from the rest of the UK in economic
terms: “2. Nothing in this chapter requires the United Kingdom to develop
new regulatory barriers between Northern Ireland and the rest of the United
Kingdom, or to fetter the access of Northern Ireland products to the whole of
the United Kingdom internal market. In
the event that this Chapter is applied, the United Kingdom, in agreement with the
Northern Ireland Executive and Assembly consistently with the 1998 Agreement,
shall decide on whether its territorial scope is limited to Northern Ireland or
applicable to the entire territory of the United Kingdom.” The suggested
wording gives effect to para 50 of the December joint report.
Article 4
Free movement of
goods
1. The provisions of Union law on
goods listed in Annex 2.1 to this Protocol shall apply to and in the United
Kingdom in respect of Northern Ireland.
Comment: the Annex is blank so far.
2. Customs legislation as defined
in point (2) of Article 5 of Regulation
(EU) No 952/2013 of the European Parliament and of the Council as well as
other provisions of Union law providing for customs controls of specific goods
or for specific purposes listed in Annex 3 to this Protocol shall apply to and
in the United Kingdom in respect of Northern Ireland. The territory of Northern
Ireland, excluding the territorial waters of the United Kingdom (the
"territory of Northern Ireland"), shall be considered to be part of
the customs territory of the Union.
Comment: Article 5(2) of the Regulation referred to (which is
the EU customs code) defines “customs legislation” as the following: “the Code
and the provisions supplementing or implementing it adopted at Union or
national level”; “the Common Customs Tariff”; “the legislation setting up a
Union system of reliefs from customs duty”; and “international agreements
containing customs provisions, insofar as they are applicable in the Union”. The
mechanics of applying this provision at international level (ie ensuring that
non-EU countries also accept that Northern Ireland is part of EU customs
territory) are not spelled out. Note that Article 4 of the Code defines the EU
“customs territory” as including not only the current Member States (with some
exceptions, such as Greenland), but also Monaco and the UK bases in Cyprus.
3. Customs duties on imports and
exports, and any charges having equivalent effect, shall be prohibited between
the Union and the United Kingdom in respect of Northern Ireland. This
prohibition shall also apply to customs duties of a fiscal nature.
Comment: this is apparently an adaptation of Article 30 TFEU,
which provides that “Customs duties on imports and exports and charges having
equivalent effect shall be prohibited between Member States. This prohibition
shall also apply to customs duties of a fiscal nature.” However, there is no
cross-reference to that provision. Without any direct reference to the EU
Treaty clause, the obligation to follow the relevant case law in Article 12(2)
of this protocol will presumably not apply.
4. Quantitative restrictions on
imports and exports and all measures having equivalent effect shall be
prohibited between the Union and the United Kingdom in respect of Northern
Ireland.
Comment: this is apparently an adaptation of Article 34 and 35 TFEU,
which provide respectively that
“Quantitative restrictions on imports and all measures having equivalent effect
shall be prohibited between Member States” and “Quantitative restrictions on
exports, and all measures having equivalent effect, shall be prohibited between
Member States”. However, there is no
cross-reference to those provisions. Without any direct reference to the EU
Treaty clause, the obligation to follow the relevant case law in Article 12(2)
of this protocol will presumably not apply.
5. The Union and the United
Kingdom in respect of Northern Ireland shall not impose, directly or
indirectly, on the products of the other party any internal taxation of any
kind in excess of that imposed directly or indirectly on similar domestic
products. Furthermore, the Union and the United Kingdom in respect of Northern
Ireland shall not impose on the products of the other party any internal
taxation of such a nature as to afford indirect protection to other
products.
Comment: this is apparently an adaptation of Article 110 TFEU,
which provides: “No Member State shall impose, directly or indirectly, on the
products of other Member States any internal taxation of any kind in excess of
that imposed directly or indirectly on similar domestic products. Furthermore,
no Member State shall impose on the products of other Member States any
internal taxation of such a nature as to afford indirect protection to other
products.” Without any direct reference to the EU Treaty clause, the obligation
to follow the relevant case law in Article 12(2) of this protocol will
presumably not apply.
This wording is also very similar to Article III:2 GATT, which will
apply to the UK and the EU even in the absence of a trade agreement.
6. Paragraph 4 shall be without
prejudice to the possibility for the United Kingdom, a Member State or the
Union to take measures to prohibit or restrict the making available on its
market of a good, or a category of goods, where and to the extent permitted by
Union law. Such prohibitions or restrictions shall not, however, constitute a
means of arbitrary discrimination or a disguised restriction on trade between
the Union and Northern Ireland.
Comment: the last sentence in this provision is apparently copied from
Article 36 TFEU, concerning exceptions to the free movement of goods, which
provides:
The provisions of Articles 34 and 35 shall
not preclude prohibitions or restrictions on imports, exports or goods in
transit justified on grounds of public morality, public policy or public
security; the protection of health and life of humans, animals or plants; the
protection of national treasures possessing artistic, historic or
archaeological value; or the protection of industrial and commercial property.
Such prohibitions or restrictions shall not, however, constitute a means of
arbitrary discrimination or a disguised restriction on trade between Member
States.
The reference to ‘Union law’ here could cover the rest of Article 36,
secondary EU law and the case law of the Court of Justice. Arguably the
obligation to follow the relevant case law in Article 12(2) of this protocol
will therefore apply, but it is unfortunate that the cross-reference is not
more precise. If the intention is to refer to the EU legislation which will be
included in the annexes, that should be made explicit.
7. For the purposes of the
customs legislation and the provisions of Union law listed in Annex 2.2 to this
Protocol, the United Kingdom customs authorities competent for the territory of
Northern Ireland shall be considered as customs authorities within the meaning
of point (1) of Article 5 of Regulation (EU) No 952/2013. By way of derogation
from Section 7 of Chapter 2 of Title I of Regulation (EU) No 952/2013, customs
controls as defined in point (3) of Article 5 of that Regulation shall be carried
out jointly by the Union and the United Kingdom customs authorities competent
for the territory of Northern Ireland. The Union and the United Kingdom shall
determine the practical arrangements for carrying out such controls in
accordance with paragraph 10.
Comment: The annex is blank. Article 5(1) of the customs code
defines "customs authorities" as:
“the customs administrations of the Member
States responsible for applying the customs legislation and any other
authorities empowered under national law to apply certain customs legislation”.
Article 5(3) of the Code defines "customs controls" as:
“specific acts performed by the customs
authorities in order to ensure compliance with the customs legislation and
other legislation governing the entry, exit, transit, movement, storage and
end-use of goods moved between the customs territory of the Union and countries
or territories outside that territory, and the presence and movement within the
customs territory of the Union of non-Union goods and goods placed under the
end-use procedure”
The customs code rules which would be derogated from (Articles 46-50 of
the code) concern control of goods. There seems no convincing reason why “full
alignment” with the relevant substantive rules should also entail joint
carrying out of controls on goods. While the EU has a legitimate interest in
ensuring that checks are being properly carried out in the UK, given that they
would not be checked at the border, this could be ensured by means of administrative
assistance (for instance, see the EU/Swiss
customs cooperation treaty, Article 18) and perhaps occasional spot-checks.
This provision has a distinct “annexation” tone; the Commission might
want to inquire why neither the UK nor Ireland agreed to cross-border pursuit
by police officers when they signed up to the Schengen police cooperation
rules.
Suggested amendments for the second and sentences: “The Union and the United Kingdom customs authorities competent for the
territory of Northern Ireland shall cooperate closely when carrying out customs
controls as defined in point (3) of Article 5 of that Regulation. The Union and
the United Kingdom shall determine the practical arrangements for such
cooperation in accordance with paragraph 10.”
8. The provisions of Union law on
value added tax listed in Annex 2.3 to this Protocol concerning goods shall
apply to and in the United Kingdom in respect of Northern Ireland.
Comment: This provision is blank. It is not known if the
Commission thinks that the entirety of EU VAT law should apply, or just the
provisions relating to goods crossing borders, which would seem more directly
relevant to border checks issues.
9. The provisions of Union law on
excise duties listed in Annex 2.4 to this Protocol shall apply to and in the
United Kingdom in respect of Northern Ireland.
Comment: This provision is blank. Again, it is not known if the
Commission thinks that the entirety of EU excise tax law should apply, or just
the provisions relating to goods crossing borders, which would seem more
directly relevant to border checks issues.
10. Specific arrangements for the
proper implementation of this Article shall be determined by the Joint
Committee, upon proposal from the Specialised Committee. Those specific
arrangements may, as appropriate, include a mechanism for revenue collection
and distribution.
Comment: the allocation of revenue could well be a contentious
issue. The fairest way forward would be to base it on reliable estimates of the
percentage of goods entering Northern Ireland ports which are destined for
Ireland. Note that the objectionable Article 4(7) makes a cross-reference to
this paragraph.
Article 5
Agriculture and
fisheries
1. The provisions of Union law on
sanitary and phytosanitary rules listed in Annex 2.5 to this Protocol shall
apply to and in the United Kingdom in respect of Northern Ireland.
Comment: the Annex is blank. It seems likely, however, that
ultimately it will include reference to legislation that would disappoint those
who dream of bringing chlorinated chicken to British dinner tables.
2. The provisions of Union law on
the production and marketing of agricultural and fisheries products listed in
Annex 2.6 to this Protocol shall apply to and in the United Kingdom in respect
of Northern Ireland.
Comment: the Annex is blank. It is not clear if it will refer to
all legislation concerning the Common Agricultural Policy, or only some of it.
As for fisheries, there is no reason why the EU fisheries policy rules on
catches should apply, given that Article 4(2) of the Protocol defines the
customs territory concerned as “excluding the territorial waters of the United
Kingdom”.
Article 6
Single electricity
market
The provisions of Union law
governing wholesale electricity markets listed in Annex 2.7 to this Protocol
shall apply to and in the United Kingdom in respect of Northern Ireland.
Comment: the Annex is blank. It is not clear if it will refer to
all legislation concerning the internal market in electricity. The Prime
Minister’s Mansion House speech expressed an interest in maintaining links in
this area.
Article 7
Environment
The provisions of Union law for
environmental protection concerning the control of the import into, export out
of, release into, or transport within the Union of substances or material, or
plant or animal species, listed in Annex 2.8 to this Protocol shall apply to
and in the United Kingdom in respect of Northern Ireland.
Comment: the Annex is blank. Presumably it will not refer to all
EU environmental law, since that legislation goes beyond the issue of the
import, export and transit of plant or animal species, to include issues like
air pollution.
Article 8
Other areas of
North-South cooperation
1. Consistent with the
arrangements set out in Articles 4 to 7 of this Protocol, and in full respect
of Union law, this Protocol shall be implemented and applied so as to maintain
the necessary conditions for continued North-South cooperation, including in the
areas of environment, health, agriculture, transport, education and tourism, as
well as energy, telecommunications, broadcasting, inland fisheries, justice and
security, higher education and sport. In full respect of Union law, the United
Kingdom and Ireland may continue to make new arrangements building on the
provisions of the 1998 Agreement in other areas of North-South cooperation on
the island of Ireland.
2. The Joint Committee shall keep
under constant review the extent to which the implementation and application of
this Protocol maintains the necessary conditions for North-South cooperation.
The Joint Committee may, including on recommendation from the Specialised
Committee, make appropriate recommendations to the Union and the United Kingdom
in this respect.
Comment: this Article lists 14 general areas of North-South
cooperation. However, it does not lay down any concrete legal obligation in
relation to any of them. Nor is the Joint Committee given powers to adopt
additional binding measures in these fields in para 2.
Article 9
State aid
The provisions of Union law on
aids granted by States listed in Annex 2.9 to this Protocol shall apply to the
United Kingdom in respect of Northern Ireland. For the purposes of those
provisions, "in respect of Northern Ireland" means that only measures
that affect trade between the territory of Northern Ireland and the Union shall
be considered as aid within the meaning of Article 107(1) TFEU.
Comment: the Annex is blank, so it remains to be seen whether it
includes all EU state aids law. State aids rules are not enforced by means of
border checks, but presumably the logic is that this is linked to North-South
cooperation. While the current UK government has no real objections to making
commitments on state aids (see this analysis
of the Mansion House speech on this issue), a Labour government would seek
clarifications or exceptions.
Chapter IV
Institutional
provisions
Article 10
Specialised Committee
1. The Specialised Committee on
issues related to the island of Ireland established by Article 158 of the
Withdrawal Agreement ("Specialised Committee") shall be composed of
representatives from the Union and the United Kingdom.
2. The Specialised Committee
shall
(a) facilitate the implementation
and application of this Protocol;
(b) examine proposals from the
North-South Ministerial Council, and North-South Implementation bodies set up
under the 1998 Agreement concerning the implementation and application of this
Protocol;
(c) discuss any point of
relevance to this Protocol giving rise to a difficulty and raised by the Union
or the United Kingdom;
(d) make recommendations to the
Joint Committee as regards the functioning of this Protocol.
Comment: the powers of the Joint Committee are set out in Article
157 of the main agreement and, as regards Ireland/Northern Ireland issues, in
Articles 4 and 8 of this protocol.
Article 11
Supervision and
enforcement
1. As regards Chapter III, the
institutions, bodies, offices, and agencies of the Union shall in relation to
the United Kingdom, and natural and legal persons residing or established in
the territory of the United Kingdom, have the powers conferred upon them by
Union law. In particular, the Court of Justice of the European Union shall have
jurisdiction as provided for in the Treaties in this respect.
2. Acts of the institutions,
bodies, offices, and agencies adopted in accordance with paragraph 1 shall
produce in respect of and in the United Kingdom the same legal effects as those
which they produce within the Union and its Member States.
Comments: At the very least, this clause should be amended to
provide that it applies “In the event that Chapter III becomes applicable…”
given that, as agreed, this chapter is a fallback option. It should be noted
that the UK government wishes to remain linked to some EU bodies as regards the
UK as a whole, so it seems presumptuous to assume at this point that no such
arrangements will be agreed.
More broadly it is questionable why EU bodies and the Court of Justice
need such extensive powers, given that the EU and Turkey agreed a customs union
without equivalent provisions. There is anyway provision for the Court of
Justice to rule in the event that a dispute cannot be settled pursuant to the
dispute settlement process in Article 162 of the main agreement, and the
Commission has not suggested why this is insufficient. (Article 12 of the
Protocol means that Article 162 of the main agreement applies to the protocol
too).
Suggested amendment: Replace entire Article with:
1. Specific arrangements for the implementation, administration and
enforcement of this Chapter shall be determined by the Joint Committee, upon
proposal from the Specialised Committee. Those specific arrangements may, as
appropriate, provide that the institutions, bodies, offices, and agencies of
the Union shall in relation to the United Kingdom, and natural and legal
persons residing or established in the territory of the United Kingdom, have
the powers conferred upon them by Union law. In that event, acts of those
institutions, bodies, offices, and agencies shall produce in respect of and in
the United Kingdom the same legal effects as those which they produce within the
Union and its Member States.
2. By way of derogation from paragraph 1, the Court of Justice of
the European Union shall have jurisdiction as provided for in the provisions of
this agreement referred to in Article 12(1)(c) of this Protocol.
Chapter V
General and final
provisions
Article 12
Common provisions
1. The following provisions of
the Withdrawal Agreement shall apply to this Protocol:
(a) Article 2, the first subparagraph of Article
4(1) and Article 4(2) and (3), Article 5(2) and (3) and Article 6;
(b) Articles 100 and 104, Article
105(1), Articles 111, 115, 116 and 117 in respect of activities of the Union
pursuant to this Protocol;
(c) Part Six, without prejudice
to Article 11 of this Protocol.
For the purposes of this Protocol, any reference
to the United Kingdom in those provisions of the Withdrawal Agreement shall be
read as referring to the United Kingdom or the United Kingdom in respect of
Northern Ireland, as the case may be.
Comments: Point (a) refers to: the definitions (Article 2 of the
main agreement); the legal effect of EU law in the UK (Article 4(1), first
subparagraph), but implicitly not direct effect or supremacy ((Article 4(1),
second subparagraph); the obligation to implement by primary legislation
(Article 4(2)); cross-references to EU law (Article 4(3)), but implicitly not
ECJ case law (Article 4(4) and (5)), which is the subject of Article 12(2) of
this protocol; some of the rules on cross-references to EU law (Article 5(2)
and (3)), but not all (Article 5(1) is omitted, but see instead Article 12(3)
of this protocol); and references to Member States (Article 6; but note Article
12(4) of this protocol, discussed just below).
Point (b) refers to official communications (Article 100), privileges
and immunities (Articles 104 and 111), official secrecy (Article 115),
discretion (Article 116) and access to documents (Article 117).
Point (c) refers to the final and institutional provisions, including
dispute settlement. Note that in accordance with Article 168, this Protocol only
applies from the end of the transition/implementation period.
2. 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 Court of Justice of the European Union.
This replaces the distinction in Article 4(4) and (5) between ECJ case
law handed down before and after the end of the transition/implementation
period. (The former binds the UK as such; the latter need only be taken into
account). However, there is no convincing reason to drop this distinction for
this Protocol, since the dispute settlement mechanism in Article 162, with its
more limited role for the ECJ, can be applied to settle disputes about
divergent implementation that may arise.
3. Where this Protocol makes
reference to a Union act, and where that act is amended or replaced after the
entry into force of the Withdrawal Agreement, the reference to that act shall
be read as referring to it as amended or replaced.
The Joint Committee shall
periodically revise the relevant references in this Protocol upon proposal from
the Specialised Committee set up under this Protocol.
Comment: this is a
more far-reaching rule than Article 5(1) of the main agreement, which only
applies the obligation to “keep up to date” with amended EU law until the end
of the transition/implementation period. It may be questioned whether such a
strict requirement need be applied, or whether a more flexible process of
discussion about new standards and equivalence similar to the EU/Swiss
veterinary standards rules (Articles 12-14 in Annex 11 to the EU/Swiss agricultural
trade agreement) could apply.
4. By way of derogation from
point (a) of paragraph 1 of this Article and from Article 6 of the Withdrawal
Agreement, representatives or experts of the United Kingdom or experts
designated by the United Kingdom may, upon invitation and on an case-by-case
basis, exceptionally attend meetings or parts of meetings of the committees
referred to in Article 3(2) of Regulation (EU) No 182/2011 of the European
Parliament and of the Council, of Commission expert groups, of other similar
entities, or of bodies, offices or agencies where and when representatives or
experts of the Member States or experts designated by Member States take part,
provided that one the following conditions is fulfilled:
(a) the discussion concerns
individual acts to be addressed during the period of application of this
Protocol to the United Kingdom or to natural or legal persons residing or
established in the United Kingdom;
(b) the presence of the United Kingdom is
necessary and in the interest of the Union, in particular for the effective
implementation of Union law made applicable by this Protocol.
During such meetings or parts of
meetings, the representatives or experts of the United Kingdom or experts
designated by it shall have no voting rights and their presence shall be
limited to the specific agenda items that fulfil the conditions set out in
point (a) or (b).
Comments: This clause is taken from Article 123(5) of the main
agreement, concerning the UK’s role during the transition/implementation
period. It’s excessive in that context, yet far more excessive here, given that
the Protocol will apply indefinitely.
Suggested amendment: By way of derogation from point (a) of
paragraph 1 of this Article and from Article 6 of the Withdrawal Agreement,
representatives or experts of the United Kingdom, or experts designated by the
United Kingdom, may attend, without voting rights, meetings or parts of
meetings of the Council, of the committees referred to in Article 3(2) of
Regulation (EU) No 182/2011, of Commission expert groups, of other similar
entities, or of bodies, offices or agencies, where and when the subject matter
of such meetings is Union law within the scope of this Protocol.
5. Authorities of the United
Kingdom shall not act as leading authority for risk assessments, examinations,
approvals and authorisation procedures provided for in Union law made
applicable by this Protocol.
Comment: this copies Article 123(6) of the Agreement, which
applies to the transition/implementation period. Since these provisions apply
indefinitely, and the UK has an interest in involvement of many EU agencies, this
provision is excessive. A better approach is to provide for decisions to be
adopted pursuant to Article 11 to replace this rule.
Suggested amendment: “Unless otherwise provided in Joint Committee
decisions adopted pursuant to Article 11, authorities of the United Kingdom…”
6. The provisions of Union law on
the protection of personal data referred to in Article 66 of the Withdrawal
Agreement shall apply in respect of personal data processed in the United
Kingdom on the basis of this Protocol.
Comment: Article 66 of the main agreement refers to the General
Data Protection Regulation, the Directive on law enforcement use of data, the
e-privacy Directive, and “any other provisions of Union law governing the
protection of personal data.” It is not clear why the Commission believes this
clause is necessary; data protection law is not enforced by means of border
checks and there is no explanation as to why this law would be linked to
North/South cooperation. The limitation of scope “on the basis of this
Protocol” is very unclear. If the intention is to refer to the implementation
of substantive obligations in the Protocol, such as (for instance) the exchange
of data on customs operations, this should be more clearly specified.
Note that Article 67 of the main agreement otherwise phases out the
application of EU data protection law in the UK as of the end of the
transition/implementation period, although the UK government’s policy is to
seek continued close alignment with EU law, by means of an adequacy decision
and links between the UK and EU data protection authorities.
7. Articles 346 and 347 TFEU
shall apply to this Protocol as regards measures taken by a Member State or by
the United Kingdom in respect of Northern Ireland.
Comment: These articles set out exemptions from EU law as
regards internal security, national security, international relations and arms
control. There is no reference to Article 348 TFEU, which sets out a special
process in case these exemptions are invoked. In this context it should be
noted that the ECJ has previously interpreted these provisions (then Articles
223 and 234 EEC) narrowly, when ruling on whether a ban on women in the
Northern Ireland police was in breach of EU law (Johnston
v RUC). In accordance with Article 12(2) of this Protocol, this case law
will still be relevant.
Article 13
Safeguards
1. If the application of this Protocol leads to
serious economic, societal or environmental difficulties liable to persist, the
Union or the United Kingdom may unilaterally take appropriate measures. Such
safeguard measures shall be restricted with regard to their scope and duration
to what is strictly necessary in order to remedy the situation. Priority shall
be given to such measures as will least disturb the functioning of this
Protocol.
2. If a safeguard measure taken by the Union or
the United Kingdom, as the case may be, in accordance with paragraph 1 creates
an imbalance between the rights and obligations under this Protocol, the Union
or the United Kingdom, as the case may be, may take such proportionate
rebalancing measures as are strictly necessary to remedy the imbalance.
Priority shall be given to such measures as will least disturb the functioning
of this Protocol.
3. Safeguard and rebalancing
measures taken in accordance with paragraphs 1 and 2 shall be governed by the
procedures and dispute settlement arrangements set out in Annex 3 to this
Protocol.
Comment: This text is effectively identical to the safeguards
clause in Articles 112 and 114 of the EEA
treaty, which extends the EU’s single market law (and certain other EU laws)
to Norway, Iceland and Liechtenstein. Those EEA treaty provisions refer to a
consultation and dispute settlement mechanism in Article 113 of that treaty; it
remains to be seen whether Annex 3 to this Protocol sets up the same system,
since it is not filled in yet.
Article 14
Protection of
financial interests
The Union and the United Kingdom
shall counter fraud and any other illegal activities affecting the financial
interests of the Union or of the United Kingdom in respect of Northern Ireland.
Comment: Compared to the arguably excessive provisions of the
rest of the Protocol, conversely this clause is arguably insufficient. It
resembles Article 325 TFEU, which starts: “The Union and the Member States
shall counter fraud and any other illegal activities affecting the financial
interests of the Union through measures to be taken in accordance with this
Article…”, but that provision is more detailed and is also a basis for
legislation. Furthermore, ECJ case law also gives that Treaty article some
legal effects of its own (most recently clarified in the Taricco II judgment,
discussed here). In light of the perceived risk that customs
fraud issues may increase in the Irish border context after Brexit, it would be
appropriate to agree some additional rules to ensure that illegal activities
within the scope of the Protocol are dealt with, perhaps following the example
of the EU/Swiss treaty
on combating fraud.
Article 15
Subsequent agreement
Should a subsequent agreement
between the Union and the United Kingdom which allows addressing the unique
circumstances on the island of Ireland, avoiding a hard border and protecting
the 1998 Agreement in all its dimensions, become applicable after the entry
into force of the Withdrawal Agreement, this Protocol shall not apply or shall
cease to apply, as the case may be, in whole or in part, from the date of entry
into force of such subsequent agreement and in accordance with that
agreement.
Comments: this Article should be deleted as it does not reflect
the agreement in the December joint report. See the proposed Article 2b above.
Article 16
Annexes
Annexes 1 to 3 shall form an
integral part of this Protocol.
Annexes
Annex 1 in relation to protection
against discrimination
Annex 2 in relation to the common
regulatory area for ensuring the free movement of goods and protecting
North-South cooperation
Annex 2.1 in relation to free
movement of goods
Annex 2.2 in relation to customs
controls of specific goods or for specific purposes
Annex 2.3 in relation to value
added tax
Annex 2.4 in relation to excise
duties
Annex 2.5 in relation to sanitary
and phytosanitary rules
Annex 2.6 in relation to
production and marketing of agricultural and fisheries products
Annex 2.7 in relation to
wholesale electricity markets
Annex 2.8 in relation to
environmental protection concerning the control of the import into, release
into, or transport within the Union of substances or material, or plant or
animal species
Annex 2.9 in relation to State
aid
Annex 3 in relation to procedures
and dispute settlement arrangements applicable to safeguard and rebalancing
measure
