The Windsor Framework: limiting the scope of EU law in Northern Ireland in practice, though not in theory (part 1)

 

 

Professor Steve Peers, University of Essex

 

Photo by David Iliff - License: CC BY-SA 3.0

 

Introduction

 

After many months of on-off negotiations and three Prime Ministers on the UK side, the UK and EU have agreed another Brexit deal: the so-called Windsor Framework, which amends the controversial Northern Ireland protocol (or as we must soon call it, the Protocol Formerly Known as Northern Irish), and includes a number of other legal texts. This blog post is in two parts: this first post is an overview of the Windsor Framework as a whole, while a second part looks in more detail at a specific issue: the ‘Stormont Brake’ on amendments or replacements to EU legislation within the scope of the protocol.

 

Background

 

At present, the current Northern Ireland protocol is attached to the withdrawal agreement (which I summarised here; I have updated my summary of the protocol for this section of this blog post). (On the current legal framework overall, see also my working paper on the withdrawal agreement, and the Yearbook of European Law article based on that working paper).

The Protocol is the one part of the withdrawal agreement that was changed after the UK Parliament refused to ratify it; among other things the provisions emphasising that the Protocol is meant to be temporary were dropped from the version of the protocol which had been negotiated by Theresa May and the EU. However, the possibility of replacing the Protocol by future UK/EU trade arrangements was maintained.

Article 1 of the Protocol refers to the UK’s territorial integrity; it is clear that the EU has not ‘annexed’ Northern Ireland, as some have claimed. Next, Article 2 and 3 of the Protocol refer to equality/existing rights and the common travel area between the UK and Ireland. These issues were never controversial, and the existing rights provisions have since been litigated: see Colin Murray’s analysis of the first judgment.

The current Protocol then dropped the previous UK-wide customs union backstop found in the Theresa May version. This text had linked to Annexes on: a) trade in goods between EU/UK/non-EU states; b) customs cooperation; and c) a ‘level playing field’, which meant some degree of continued harmonisation of law relating to tax, the environment, labour law, state aid, competition, and public companies/monopolies.

In place of the UK/EU customs union backstop, in the current Protocol Article 4 first specifies that Northern Ireland is part of the UK’s customs territory for international trade purposes. Article 5 then regulates trade between Great Britain and Northern Ireland. No customs duties are charged on goods moved from Great Britain to Northern Ireland, unless there is a risk that the goods may be sold in the EU. The further definition of what that means had to be worked out by the Joint Committee established by the withdrawal agreement by the end of the transition period, ie the end of 2020. In practice, the Joint Committee agreed several measures to implement the protocol by the end of that year. There is an exemption for personal property.

An Annex applies a long list of EU laws on customs, trade and goods regulation to Northern Ireland – although in the previous version some of these laws would have applied to the whole UK.  The Protocol also includes provisions on the UK internal market, as well as lists of specific EU laws that apply in Northern Ireland: product regulation, VAT and excise tax, a single electricity market, and State aids.

The institutional provisions of the Protocol include the proviso that EU bodies, including the CJEU, have competence to apply or interpret certain provisions of the Protocol. It is also possible for the UK to object to new (as distinct from amended or replaced) EU laws becoming applicable in Northern Ireland; this will be discussed along with the new provisions in the Windsor Framework on objecting to amended or replaced EU laws in part 2 of this blog post.

A provision on ‘consent’ specifies that the Northern Ireland Assembly can, under certain conditions, terminate the customs and other economic provisions of the Protocol. There’s also a unilateral UK declaration related to this. (The absence of a power to end the previous backstop unilaterally had been controversial). This is the only part of the withdrawal agreement subject to the possibility of unilateral termination by one side; on the issue of terminating the agreement generally, see my discussion here.

The UK government’s implementation of the consent provisions had formed the basis of a legal challenge by unionist politicians and others which in effect tried to argue that the very existence of the protocol was unlawful in the UK. This challenge lost at every level including (recently) the UK Supreme Court (on that judgment, see Colin Murray and Anurag Deb).

Finally, the Protocol included a safeguard clause, Article 16:

1.    If the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade, the Union or the United Kingdom may unilaterally take appropriate safeguard 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.

There are provisions for the other party to retaliate proportionately if one party used Article 16, and an annex which sets out procedural rules. In the event, despite much discussion, neither party has invoked Article 16; the EU Commission reversed its intention to use it to provide for possible restriction of vaccine exports before that law entered into force, and a legal challenge to the Commission on this point was unsuccessful, because in effect there was nothing to challenge.

Despite pitching the withdrawal agreement as an ‘oven ready deal’, it soon became apparent that the UK government – like the unionist community in Northern Ireland – had huge objections to the deal that it had championed, approved in Parliament, and ratified. The government first tabled an Internal Market Bill that they admitted would have been a breach of the protocol, although the offending clauses of that bill were dropped once the UK and EU reached agreement on Joint Committee decisions implementing the protocol in December 2020 (as referred to above).

Subsequently, in 2022 the government tabled another bill – the Northern Ireland protocol bill – which would arguably breach the protocol, although the government claimed that any breach would be justified by the ‘doctrine of necessity’ in international law (for a criticism of this defence, see Professor Mark Elliott’s analysis; see also Colin Murray’s analysis on this blog). For its part, believing that the UK was not fully implementing the protocol in practice, the EU Commission began infringement proceedings against the UK (on the basis of the provisions in the protocol which give the CJEU jurisdiction over much of it).

The Windsor Framework

Joint Committee decision

The core of the new Brexit deal is a draft Joint Committee decision, which would first of all amend the Protocol itself. This would be done on the basis of the Joint Committee powers, set out in the withdrawal agreement, to:

except in relation to Parts One, Four and Six, until the end of the fourth year following the end of the transition period, adopt decisions amending this Agreement, provided that such amendments are necessary to correct errors, to address omissions or other deficiencies, or to address situations unforeseen when this Agreement was signed, and provided that such decisions may not amend the essential elements of this Agreement;

The amendments to the protocol entail first an amendment to Article 6(2) of the protocol, concerning UK internal trade (new provision underlined):

Having regard to Northern Ireland's integral place in the United Kingdom's internal market, the Union and the United Kingdom shall use their best endeavours to facilitate the trade between Northern Ireland and other parts of the United Kingdom, in accordance with applicable legislation and taking into account their respective regulatory regimes as well as the implementation thereof. This includes specific arrangements for the movement of goods within the United Kingdom’s internal market, consistent with Northern Ireland’s position as part of the customs territory of the United Kingdom in accordance with this Protocol, where the goods are destined for final consumption or final use in Northern Ireland and where the necessary safeguards are in place to protect the integrity of the Union’s internal market and customs union. 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.

This is not so much a substantive change in itself, as a description of the changes made elsewhere in the Joint Committee Decision (see discussion below), although it might address any argument that might be made that those changes in the Decision are incompatible with the Protocol.

Secondly, an amendment to Article 13 of the protocol will add the "Stormont brake" on amended or replaced EU law. An annex to the Joint Committee decision will set out the text of a unilateral UK government statement on this process. As noted already, I will discuss the Stormont brake in part 2 of this blog post.

Next, as regards VAT and excise taxes, Article 8 of the protocol will not be amended. It reads as follows:

The provisions of Union law listed in Annex 3 to this Protocol concerning goods shall apply to and in the United Kingdom in respect of Northern Ireland.

 

In respect of Northern Ireland, the authorities of the United Kingdom shall be responsible for the application and the implementation of the provisions listed in Annex 3 to this Protocol, including the collection of VAT and excise duties. Under the conditions set out in those provisions, revenues resulting from transactions taxable in Northern Ireland shall not be remitted to the Union.

 

By way of derogation from the first paragraph, the United Kingdom may apply to supplies of goods taxable in Northern Ireland VAT exemptions and reduced rates that are applicable in Ireland in accordance with provisions listed in Annex 3 to this Protocol.

 

The Joint Committee shall regularly discuss the implementation of this Article, including as concerns the reductions and exemptions provided for in the provisions referred to in the first paragraph, and shall, where appropriate, adopt measures for its proper application, as necessary.

 

The Joint Committee may review the application of this Article, taking into account Northern Ireland's integral place in the United Kingdom's internal market, and may adopt appropriate measures as necessary.

However, the Joint Committee decision will amend Annex 3 to the protocol, which is referred to in Article 8 and which sets out the UK’s current obligations as regards VAT and excise tax in Northern Ireland in more detail. In particular, a new note added to that annex will set out several derogations from the EU’s main VAT Directive: a) for ‘goods supplied and installed in immovable property located in Northern Ireland by taxable persons’, there can be a reduced rate, a rate below 5%, or an exemption; b) the UK can have more reduced rates or rates lower than 5% or an exemption than EU Member States are allowed, going beyond a recent amendment to EU law to give more flexibility on reduced rates; and c) the UK can apply different rules on small businesses.

As regards excise tax, Annex 3 will be amended to state that the UK, as regards Northern Ireland, is exempt from certain rules in the Directive on the structure of alcohol tax, a) so it ‘may therefore apply excise duty rates on alcohol and alcoholic beverages always on the basis of alcoholic strength and may apply reduced duty rates to alcoholic beverages packaged in large draught containers served for immediate consumption in hospitality venues’, and b) ‘may therefore define small producers and set reduced duty rates to alcohol and alcoholic beverages produced by small producers, provided that such reduced duty rates are in no case, even after any applicable relief’, although in each case the minimum duty calculated under the Directive must still be charged. There are no exemptions added to the Directives on taxation of tobacco and petrol.

The Joint Committee also refers to the possibility of adding more notes to indicate how VAT and excise tax laws will apply in Northern Ireland, provided that those ‘notes shall ensure that there is no negative impact on the Union’s internal market in the form of fiscal fraud risks nor any potential distortion of competition.’

The biggest part of the Joint Committee decision will replace a previous Joint Committee decision. This is the part that will reduce checks on goods going from Great Britain to Northern Ireland, by setting out new rules indicating when a good is at risk of going to the EU as distinct from staying in Northern Ireland (following the distinction set out in the Protocol). It first defines what goods do not raise that risk because they will not be subject to commercial processing, including goods to be used in construction in Northern Ireland, the sale of food to a consumer in the UK, provision of food as part of health or care services in Northern Ireland, or animal feed. Unlike the previous Joint Committee decision, which only permitted several of these exemptions if the good was used by the importer, the new Decision allows the exemptions if the importer sells the good once to one other entity. Also a smaller business exemption has been widened from £500k to £2 million in turnover; the UK government states that this will bring about 80% of manufacturing and processing companies in Northern Ireland that trade with Great Britain within the scope of the exception. A new provision adds parcels to the list of goods movements which do not pose risks of further movement to the UK.

As for the rest of the Decision, there are new provisions on consultation as regards VAT and excise tax. Some of the new provisions will not apply until September 2023 or September 2024, in order (among other things) to ensure that the UK is supplying data, and (in the latter case) to give time for the EU to pass unilateral legislation (discussed below) relevant to the protocol – although those dates could be brought forward.

Other parts of the Windsor Framework

The other parts of the Framework are a mix of unilateral or joint measures which are mainly non-binding ‘soft law’. Crucially, though, there are also unilateral proposals for EU law, discussed further below.

A Joint Declaration states that the whole protocol should be called the ‘Windsor Framework’ from now on. There is a Joint Committee recommendation and a Joint Declaration on what happens if the UK pulls the Stormont brake and arbitrators rule against it (to be discussed in part 2).

The only other binding measure jointly agreed is a change to the rules of procedure of a working group, to involve more stakeholders from Northern Ireland in discussions. Along the same lines, there is a joint declaration on involving stakeholders in the work of the committees.

There is then a unilateral UK declaration on review of the ‘consent’ process on the future existence of the protocol (Article 18 of the protocol, discussed above); but this does not alter the consent process as such.

Next, a recommendation of the Joint Committee and a unilateral declaration by the UK address the issue of ‘market surveillance and enforcement’ – ie the prospect of cross-border smuggling.

A unilateral declaration by the UK addresses when export rules of EU law will apply to goods moving from Northern Ireland to Great Britain – although it should be recalled that most of the rules in the protocol apply to the movement of goods the other way around, because of the EU’s concerns about goods entering its internal market via Northern Ireland to Ireland without being checked. (The UK is obviously less bothered about the parallel prospect as regards its own internal market).

Another unilateral UK declaration concerns parcels moving from Great Britain to Northern Ireland, and is applicable until the new Joint Committee decision fully takes effect.  A Joint Declaration notes the possibility of negotiating further amendments to VAT law in future, as regards reduced rates and refunds.

Finally, on two further controversial issues, the law stays the same. First, this applies to the current rules on State aid – where EU State aid rules apply to Northern Ireland, as enforced by the Commission – although there is now a joint declaration interpreting this provision of the protocol.

The law also stays the same as regards the jurisdiction of the CJEU on the protocol, although the effect of the Windsor Framework is to reduce the application of EU law in practice to Northern Ireland, therefore in principle reducing the number of possible cases where the CJEU might be asked to rule because EU law applies. (In practice, the CJEU has not yet exercised its jurisdiction as regards the protocol). 

Finally, a joint political declaration of the EU Commission and the UK summarises the contents of the agreement, and includes commitments to drop the Northern Ireland protocol bill on the UK side, and the infringement proceedings pending on the EU side on the other. (Each had been paused pending negotiations). They also agreed that the Joint Committee would meet soon to adopt the legal texts. 

EU unilateral measures

The EU Commission has also tabled proposals for EU legislation as regards medicine, food and animal checks (including movement of pets), and tariff quotas, as well as a secondary Commission measure on ‘high-risk plants’, and position papers on customs, food and animal checks, and  on engagement with Northern Ireland stakeholders. In effect this legislation, while not explicitly disapplying the application of EU law to Northern Ireland in accordance with the protocol, will create a special regime (lex specialis) as regards the movement to or sale of many products there.

Other stuff

Not exactly part of the Windsor Framework package, but worth noting, are (on the UK side) a UK government command paper which summarises and defends the package, along with a statement of the UK government legal position (which pours cold water on the proposed Northern Ireland protocol bill). On the EU side, there is a press release and a list of Q and As on the deal that indicate what the EU’s interpretation of it is. The explanatory memorandum to the proposal for the EU Council to agree the EU’s support for the Joint Committee decision also includes some background on the EU Commission’s views. The UK government has also announced an intention to amend the Northern Ireland Act; the content of that amendment remains to be seen.

Comments

The Windsor Framework does not alter the fundamental legal framework of the Northern Ireland protocol. However, it does address its implementation in practice – notably by simplifying somewhat the movement of products between Great Britain and Northern Ireland, taking together the new Joint Committee decision and proposed EU legislation. It also scales back – again without fully disapplying as such – the application of EU tax law to the UK, in order to permit some recent changes to UK law to apply fully to Northern Ireland. So while it is technically inaccurate for the UK government to claim that the agreement ‘scraps’ 1700 pages of EU law from applying to Northern Ireland, it is fair to say that in many cases that law will no longer apply de facto, even if it applies de jure.   

Some of the changes in the package will be implemented by unilateral acts by the EU, rather than jointly agreed text as between the UK and the EU, raising the possibility either that the proposals might not be adopted as proposed by the Commission, or that the EU might unilaterally amend or repeal them later – although presumably the Stormont brake would kick in if the latter happened. Likewise some of the changes depend on the EU side trusting the UK’s application and implementation of its own legislation – although there are possibilities of the EU side reacting in the event of UK failure to do so. It might also be queried whether the Joint Committee decision goes outside the limits set by the withdrawal agreement on the capacity of the Joint Committee to amend that agreement, and of whether the changes to the annexes on tax are consistent with the provisions of the protocol requiring consistency with what Ireland does on VAT.

On these points, it might have been simpler to amend the protocol in the ordinary way, which would also have provided an opportunity to amend the rules on State aid (there being little reason for the original rules, now that the Trade and Cooperation Agreement has rules on subsidies, plus the UK has passed a Subsidy Control Act), as well as curtailing the rule of the CJEU – limiting it to being asked questions about EU law by dispute settlement arbitrators, which is the minimum implicitly required by prior CJEU case law.

It is striking that the agreement is focussed very much on specific issues that have been the subject of day-to-day concern for businesses and consumers in Northern Ireland – the movement of plants such as trees and seed potatoes, pets, products for supermarkets, and parcels, for instance – as well as the application of specific changes in UK tax law. Its critics sometimes depict the EU as saying “that’s fine in practice, but will it work in theory?” But those who object that the new agreement will still retain the application of EU law in principle, even though it will more often not apply in practice, have fallen into the same trap.

With this pragmatic problem-solving approach, the Prime Minister conveys an image of being a competent manager brought in to save a failing hotel – who immediately assesses the need to wash the towels before the guests arrive and have hot rolls ready to eat with breakfast in the morning, and swiftly negotiates with staff and suppliers to get it done. Such sensible managerialism might sound dull – until you remember the Fawltyesque chaos when the previous hotel manager was in charge. And the less said about the interim hotel manager, who nearly bankrupted the whole hotel chain during her six week stint in between the two, the better.

 

Further reading: other analyses of the Windsor Framework

Anton Spisak

David Henig

Institute for Government

Colin Murray

Anna Jerzewska

Chris Grey

KPMG

Sam Lowe

Viviane Gravey and Lisa Claire Whitten (on goods movement)

Michael Dougan

Alexander Horne (also for UK in a Changing Europe)

Harry Gillow, for Conservative Home

John Larkin KC, for Centre for the Union

Richard Bullick (thread with links to different analyses)

Graphic on the Windsor Framework, by Simon Usherwood

House of Commons Library analysis

 

 *This blog post was amended on 5 March 2023, to add more links to other analyses, and to clarify the final sentence. It was amended again on 6 and 8 March 2023 to add additional links to other analyses. 

Halet v Luxembourg: A Victory of the Unsung Heroes

 

 

Dimitrios Kafteranis* and Stelios Andreadakis**

 

Photo credit: CherryX, via Wikimedia Commons

 

*Assistant Professor in Law, Centre for Financial and Corporate Integrity, Coventry University

** Reader in Corporate and Financial Law, Brunel University London

 

 

The Grand Chamber judgment of the European Court of Human Rights (ECtHR) on 14 February 2023 on the case Halet v. Luxembourg is a victory for whistleblowers and the right to freedom of expression. The long-awaited judgment has put an end to a legal battle of more than 10 years for Raphael Halet and rectified the previous decisions of the Luxembourg Court of Appeal and of the third Chamber of the ECtHR. The Court stated that whistleblowers should be protected under Article 10 of the European Convention on Human Rights (ECHR) when they report facts of public interest. The tax matters at hand were of public interest and the Court made a significant statement in that regard by protecting  Mr Halet, who did not report an illegal practice or a wrongdoing, but “certain information that concerns the functioning of public authorities in a democratic society and sparks a public debate, giving rise to controversy likely to create  a legitimate interest on the public’s part in having knowledge of the information in order to reach an informed opinion as to whether or not it reveals harm to the public interest”.

 

The Court had to decide whether Mr Halet’s criminal conviction, following the disclosure by him to a journalist of sixteen documents issued by his employer had amounted to a disproportionate interference with his right to freedom of expression. The Luxembourg Court of Appeal had decided that the damage that Mr Halet caused to his employer, PricewaterhouseCoopers (PwC), is not outweighed by the interest in having the information. This position was confirmed by the third Chamber of the ECtHR. The Grand Chamber referred to its established case law and the famous Guja criteria. These criteria are: (1) the channel for disclosure, (2) the public interest, (3) the authenticity of the information, (4) good faith, (5) damage to the employer and an assessment of whether such damage outweighed the public interest, and (6) the sanction imposed. While the Grand Chamber examined the six criteria again, the focus was on the fifth and sixth criterion.

 

First, the Court clarified that the criteria should be examined without a specific order as there is no hierarchy or order to be followed in their examination. Concerning the balancing of the public interest in the disclosed information and the detrimental effects of the disclosure, the Court did not consider it as a conflict of rights (as suggested by the Luxembourg government). It examined, instead, whether the domestic courts struck a fair balance between, on the one hand, the public interest of the disclosed documents, and, on the other hand, the entirety of the harmful effects arising from their disclosure. The Grand Chamber stressed that the Luxembourg Court’s requirement of “essential, new and previously unknown” disclosed information is not relevant. The Court highlighted that a public debate may be ongoing and additional information can come at a later stage. The fact that a public debate on tax practices was already in progress in Luxembourg could not reduce the relevance of the disclosed documents. The Court actually spent several paragraphs in its judgment on the importance of the debate around taxation and dubious practices of tax avoidance and tax optimisation extensively used nowadays. It is sometimes necessary for the alarm to be raised several times on the same subject before the public authorities, or the society as a whole, are mobilised and exercise increased vigilance.

 

On the issue of balancing the damage to the employer and the need of the public to be informed, the Court took a different stance compared to the previous decisions. While it acknowledged the detrimental effect of the disclosures on PwC, it was decided that the Luxembourg Court of Appeal did not sufficiently justify why the damage suffered by PwC had not been outweighed by the general interest. The criticism of the Grand Chamber was that the Luxembourg Court of Appeal only referred to “damage to …… image” and “loss of confidence”, but did not enter into details. In fact, PwC had “a difficult year” following the Luxleaks investigations, but quickly increased its revenues and expanded its activities again. The Court concluded that, in the balancing exercise made by the domestic courts, the public interest in the information revealed was analysed narrowly and, on the question of the damage, the Luxembourg Court only focused on the damaged sustained by PwC, disregarding other relevant issues, such as the harm also caused to the private interests of PwC’s customers and to the public interest in preventing and punishing theft and in respect for professional secrecy. As a result, the Grand Chamber found that the Luxembourg Court of Appeal erred on the assessment of this criterion.

 

Furthermore, the Grand Chamber examined the sixth criterion: the severity of the sanction. It highlighted the importance of whistleblowers for the society, while stressing that any undue restriction on them may have a chilling effect on and dissuade potential whistleblowers to come forward. Regarding the criminal conviction of Mr Halet, the Court concluded that it was not proportionate in light of the legitimate aim pursued and Luxembourg’s interference with Mr Halet’s right to freedom of expression was not “necessary in a democratic society”. The Court awarded €15000 non-pecuniary damage and €40000 covering costs. It should be noted that Mr Halet spent almost ten years in this legal saga, so it is worth considering whether this compensation can really make up for the financial damage he suffered, not to mention the damage to his career and professional standing. It should be taken into consideration that whistleblowers often lose their jobs and have to undertake lengthy and expensive legal battles, thus the courts should, in the future, look for more efficient ways to compensate them.

 

The joint dissenting opinion of the four Judges at the end of the judgment is also worthy of examination. The four Judges criticised the Grand Chamber’s approach on the notion of public interest, on the importance of safeguarding professional secrecy, on the balancing exercise and on the severity of the sanction. An important comment is that the dissenting Judges referred to Mr Antoine Deltour as a bad faith worker who stole documents. Considering that Mr Deltour was not found to be in bad faith and his “theft” was legally justified due to him being a whistleblower, the use of such characterisations by the dissenting Judges came as a surprise. The reasoning of the dissenting Judges reflects a rather “old-school” analysis of whistleblowing, which questions the co-existence of whistleblowing and professional secrecy as well as its relation to criminal law. The fact that whistleblowers report events, which are not illegal per se, but can initiate a public debate, is significant, as it promotes transparency, accountability and allows the public to find out about instances of wrongdoing. Having said this, it is important to note that everything should be done in a proportionate way and never in bad faith.

 

Overall, the Grand Chamber’s judgment can be seen as a victory for all unsung heroes, who blew the whistle and suffered retaliation, blacklisting and demotion. The Court sent a message that whistleblowers should be heard and not suppressed. As it was emphasised, the purpose of whistleblowing is not only to uncover and draw attention to information of public interest, but also to bring about change in the situation to which that information relates, where appropriate, by securing remedial action by the competent public authorities or the private persons concerned. This is what Ralph Nader had in mind, when he coined the term for the first time in 1960s: whistleblowing as an alarm mechanism, which aims at alerting, informing, changing, but, above all, protecting our democratic society.

The European Peace Facility – Another accountability gap?

 

Ellen Cantraine, PhD researcher, Ghent European Law Institute

Photo credit: Dietmar Rabich / Wikimedia Commons / “Münster, Stadtweinhaus, Beflaggung Ukraine und EU -- 2022 -- 0219” / CC BY-SA 4.0 / see also

 

Introduction

After the military coup attempt in 2021 in Mali, the mission of the EU to Mali (hereinafter “EUTM”) remained operational, despite evidence of severe wrongdoing by EU trained soldiers. EUTM was funded by the European Peace Facility (hereinafter “EPF”) and has revealed significant weaknesses in the external funding of the EU. According to the UN International Commission of Inquiry for Mali, Malian troops trained by the EU under EUTM have engaged in numerous abuses including extortion, ill-treatment and extrajudicial executions.

In a watershed moment in February 2022, the Council of the EU unanimously decided in its Decision 2022/339 to fund - likewise under the EPF - the provision of military equipment designed to deliver lethal force, to Ukraine in its Decision 2021/509 (hereinafter “EPF Council Decision"). On October 17, 2022 the Council adopted a Decision establishing the European Union Military Assistance Mission in support of Ukraine training mission of the EU to Ukraine (hereinafter “EUMAM”). The European Peace Facility (hereinafter “EPF”) will finance the common costs of the mission up to 106 million euro. It is the first time that the EU will finance the purchase and delivery of arms and lethal weapons. As summarized by EU’s Foreign Policy Chief, Josep Borrell, “another taboo has fallen”. Notwithstanding the importance of this move, questions are being raised about the respect for human rights in the implementation of the EPF in Ukraine and the concomitant lack of transparency, democratic oversight and accountability mechanisms.

Background

The EPF is an off-EU budget, financed by the EU Member States, which finances operations with military implications and provides support for inter alia training and equipment, including the provision of lethal weapons to EU partner countries. The EPF builds on the EU’s experiences with the Athena Mechanism and the African Peace Facility (hereinafter “APF”) and integrates this former support provided via the APF. Since its adoption in 2021, it has become the main source of funding for European Union external actions in the field of crisis management and conflict prevention. The EPF aims to facilitate the EU’s Global Strategy by contributing to the Common Foreign and Security Policy operations that are military and security oriented. Since the EU Treaty prohibits the use of its regular multiannual budget for activities of a military nature in Article 41 (2) TEU, the fund is off-budget. This off-budget qualification was proposed by the former High Representative, Federica Mogherini and requires unanimous approval by EU Member States through an EU Council Decision for funds to be allocated. All the while, Member States remain bound by Article 21 (1) TEU. When juxtaposing this commitment with the recent announcements of several arms deliveries from Member States to Ukraine, the question of compliance with the rule of law, linked to the principle of democracy and respect for human rights, in its external relations becomes even more pertinent.

According to Article 2 TEU the EU is founded on the rule of law and seeks to promote the values enshrined therein through its external action based on Article 21(1) TEU. A crucial factor in establishing the EU as a credible actor in its Common Foreign and Security Policy (hereinafter “CFSP”) and Common Security and Defence Policy (hereinafter “CSDP”) is whether it can live up to its own standards and values. We also find evidence of this in the EPF Council Decision. Article 56 (2) of the EPF Council Decision states that all assistance measures must comply with Union law and with Union policies and strategies, such as the Integrated Approach to external conflicts and crises. There is no provision for any form of judicial review by Court of Justice of the European Union (hereinafter “CJEU”) of the assistance measures. Given the restrictive judicial control exercised by the CJEU over CFSP and CSDP missions on the basis of Article 24(1) TFEU, foreign and security policy remains a traditional core area of exclusive Member State control. Against this backdrop, the question arises whether rule of law mechanisms ensuring transparency, accountability and democratic control are embedded in the EPF that allow for an ex-ante or ex-post verification of the use of the funding. The backlash of EU-delivered equipment going rogue could be significant but is currently being downplayed.

Øby Johansen previously examined the various accountability mechanisms available to the EU in its CSDP missions when human rights violations occur. He concluded that CSDP missions can cause human rights violations, that these human rights violations can be attributed to the Union and showed that it is doubtful whether the accountability mechanisms for CSDP missions provide sufficient protection for individuals whose rights have been violated (Øby Johansen, 2016). Conversely, Rutigliano argues that the current lethal equipment being sent to Ukraine appears to be in line with the principles of EU and international law (Rutigliano, 2022). However, she rightly points out that insofar the weapons are used in a non-compliant manner, this will lead to a complex issue of international responsibility and accountability. This is particularly important as the EPF is an extra-budgetary fund, not subject to parliamentary control by the European Parliament and does not fall under the scope of the judicial review by the CJEU. 

Problem statement

Considering the risks and misuse associated with delivering lethal equipment in already unstable and fragile contexts (Maletta & Héau, 2022), providing arms by Member States through an extra-budgetary fund should be transparent (European Parliament resolution of 17 February 2022 on the implementation of the Common Security and Defence Policy – annual report 2021)  to be in line with the EU’s integrated approach to external conflicts and crisis as a matter of good administrative practice, key to the rule of law. The principle of good administrative practice, enshrined in Articles 41 and 42 of the Charter, does not apply to CSDP missions as they do not constitute an EU body within the meaning of Article 15(3) TFEU. However, the EEAS remains bound, the European Ombudsman defines maladministration as follows: “maladministration occurs if an institution or body fails to act in accordance with the law or the principles of good administration, or violates human rights”. Particularly in the light of recent developments, namely the supply of battle tanks to Ukraine, it is even more important to ensure transparency in the supply of arms to be in line with Article 1 e) of Council Decision (CFSP) 2020/1464 of 12 October 2020. Especially, since some authors point out that before the Russian invasion, Ukraine was host of one of the largest illegal arms markets in Europe (Fotidiadis & Schmidt, 2022). Several EU principles, including transparency, democratic control and accountability, are severely under considered in the EPF.

In its Global Strategy, the EU declares its commitment to the principles of accountability, responsibility, effectiveness and transparency. Considering that legal and institutional transparency is essential for the exercise of accountability (Judgment of 21 April 2021, Pech v Council, Case T-252/19, para 26), and therefore for the respect of the rule of law in CSDP missions (European Parliament, Human Rights Factsheet). The EU fails to live up to its own standards in practice. The process of the arms deliveries and how these requests are made under the EPF are determined by the Integrated Methodological Framework (hereafter “IMF”). This framework sets out the guiding principles and possible concerns to be addressed when assisting partners in pursuit of the objectives of CSDP missions such as EUMAM and EPF assistance measures. Under this Framework, the Council will approve the assistance measure and will elaborate on the requirements which are necessary to allow for the delivery of military items. The beneficiary of the items should respect international law, particularly international human rights law and international humanitarian law. One important side note, the framework is not made public.

In January of last year, a complaint was lodged with the European Ombudsman to make the IMF Framework public. The complaint was rejected on the basis of the exception in Article 15 TFEU, the EEAS argued that disclosing the documents could undermine the protection of the public interest (European Ombudsman, Case 124/2022/NH). Article 15 (3) TFEU, “any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph”. While transparency is a prerequisite for implementing an accountable and legal system in accordance with the rule of law, the legal framework for public access to documents does not apply to CSDP missions. As CSDP missions are not EU bodies within the meaning of Article 15 TFEU (Judgment of November 12, 2015, Elitaliana SpA v Eulex Kosovo, Case C-439/13, para 54), they act under the responsibility of the Council and the High Representative of the Union for Foreign Affairs and Security Policy. They are not subject to the requirements of access to documents, nor to Articles 41 and 42 of the Charter. In order to fill this legal vacuum, some CSDP missions adopt a specific policy on public access to documents (EUNAVFOR MED Operation SOPHIA), but transparency remains dependent on the good-will of each CSDP mission itself. There are calls for more transparency from the top down. In the 2021 annual report on the implementation of the CSDP missions, the European Parliament calls for regular and transparent evaluation of all CSDP missions and actions.

Additional to the lack of transparency and to the entire arms delivery process, there is no democratic control over the decisions to supply. The Lisbon Treaty has not greatly increased the democratic scrutiny over CFSP and CSDP by the European Parliament. Moreover, as the EPF is established as an intergovernmental CFSP instrument, the European Parliament is not involved and has no formal oversight role. Instead, it is the EEAS that will ensure monitoring and control based on the situation on the ground. Whether the EEAS’ risk analyses are always correct is questionable however, as the Mali experience is a blazing example of this. The mission was implemented and coordinated by High Representative and the EEAS. Despite the training of the Malian Armed Forces under the EUTM mission, some members committed abuses such as ill-treatment, extortion and extrajudicial executions (UN International Commission of Inquiry for Mali, 2021). Moreover, a former EUTM trainer claims that the fact that there have been abuses justifies the EU’s training mission: “If the Malian army was already perfect, it wouldn’t need EUTM’s support.” The EEAS has previously fallen short in following up on missions, and not all policy documents are made public in Mali. While acknowledging the need for (limited) military confidentiality, legal and institutional transparency remains a key element to build accountability (Barnard & Peers, European Union law 2017). The lack of adequate mechanisms to protect against human rights violations has not gone unnoticed by NGOs. In October last year, a complaint was lodged with the European Ombudsman. The complainants are of the opinion that the EEAS has failed to properly assess the potential risk to human rights and to carry out impact assessments in relation to its technical assistance engagement with non-EU countries (European Ombudsman, Case 1472/2022/MHZ).

The EEAS has an explicit obligation to uphold human rights and the rule of law in its relations with third countries. The new EU Action Plan on Human Rights and Democracy 2020-2024 provides several tools, but these remain rather “empty” and unenforceable regarding CSDP missions. CSDP missions are not official EU bodies and fall under the responsibility of the EEAS. Several NGOs have recently lodged a complaint with the European Ombudsman, claiming that EU institutions and agencies have an explicit obligation to promote human rights and the rule of law in their relations with third countries, this also applies to the EEAS (European Ombudsman, Case 1472/2022/MHZ). Nevertheless, the EEAS shows a lack of ex-ante human rights impact assessments. These assessments can be a useful tool for arriving at a balanced assessment of the potential impact of a CSDP mission. So far, the trade-off between secrecy and transparency tends mainly towards the former, at the expense of respect for human rights and the rule of law. 

If the EEAS fails, national parliaments could arguably exercise an oversight role on the basis of Articles 10 (2) and 12 TEU. Unfortunately, national parliaments are not the right institution to control the CSDP missions. National parliaments do not have the necessary knowledge, experience or information to exercise adequate democratic control over specialized CFSP budget allocation. It is extremely difficult for members of national parliaments to acquire the necessary oversight and expertise to be able to judge these decisions effectively. As a result of the weak and formal national democratic powers, the structural shortage of information and lack of transparency there is a weak de facto and de jure accountability for information and for conduct. This applies to both the European and national levels. The European Parliament wants to exercise effective control, which would only increase the accountability and transparency of the EPF, but there is no legal basis for this in the TEU. This leads to CSDP missions which are to a large extent politically unchecked at national and European level. Some scholars argue that parliamentary control by national parliaments is a necessary complement to the scrutiny of the European Parliament but cannot be a replacement (De Baere, 2008). The clear lack of democratic control at national and European level is alarming, especially regarding the check with (international) human rights.

Lastly, as far as accountability is concerned, several scholars have already discussed this issue. Their observations show that there are few sufficient accountability mechanisms at the European level, and that accountability is mainly provided at the national level, as far as the CSDP and CFSP are concerned. In case of misuse of supplied weapons in Ukraine, the Member States concerned can be held responsible. However, sufficient information must first be available to identify the responsible party. The limitation of accountability mechanisms could be offset by the potential role of the European Parliament in scrutinizing EU actions in the context of CSDP missions (Schmidt, 2020). However, in the case of the EPF, the European Parliament remains painstakingly absent from the “democratic “picture.

The current governance structure of the EPF - operating under a Facility Committee - reduces costs and it facilitates consistency at the expense of compliance with international human rights. The demand for transparency and accountability is particularly important in the current context of abuses in CSDP missions, which are often swept under the rug. Transparency, accountability and democratic control need to be worked on for the past to not repeat itself.

Concluding remarks

As noted above, the EPF is a new off-budget fund, here the main problems of transparency, lack of parliamentary oversight and accountability have emerged, which several scholars have already argued are substandard in CSDP missions. Moreover, without adequate safeguards, the EPF threatens weakening the rule of law worldwide and could possibly contribute to potential human rights abuses. The lack of adequate rule of law mechanisms is difficult to reconcile with the EU’s ambition to “lead by example” in its external relations and that claims to stand up for transparency, accountability and responsibility in its integrated approach.

Given the uncertain and volatile geopolitical environment in which the EU finds itself, the choice for the EPF makes strategic and operational sense. However, there is a need to ensure that the governance structure of the EPF can act appropriately and learns from the lessons of the past.  It now appears that there is a policy of flashpoint without a clear framework of democratic scrutiny, transparency and accountability. In times of crisis, appropriate and rapid action must be taken, but it cannot be that certain EU values, and international human rights are openly flouted. The lessons of the past are there to be learned, not repeated.

The EPF is important for putting Europe on the map and for providing military decisiveness in times of crisis. Given the problems of accountability as a form of ex-post control, already outlined, it would be appropriate to insist at least on transparency ex-ante with democratic scrutiny by the European Parliament, so that there is one safeguard to check that international human rights and the of the rule of law more broadly, are being respected. The EU's ambition to be a 'credible Union' in its external action, upholding its own values – accountability, transparency and democratic control, falls short.

Allister: the effect of the EU Withdrawal Act

 

Anurag Deb, PhD researcher, Queen's University

Photo credit: Dom0803, via Wikimedia Commons 

In the uncertain aftermath of the Brexit referendum and shortly after Theresa May had succeeded David Cameron as Prime Minister, she had announced her intention to move a ‘Great Repeal Bill’ to undo what Lord Denning had once described as the ‘incoming tide’ of EU law. That Great Repeal Bill became the EU Withdrawal Act 2018, amended in 2020 by the EU Withdrawal Agreement Act 2020. But did this stop the incoming tide? Not particularly – there are post-exit arrangements baked into the 2018 Act in order to provide certainty to, for example, people who have cases reliant on EU law progressing through the courts at the point of exit, so that their cases are not extinguished overnight.

 

However, savings provisions to ensure legal certainty are fairly common in legislation. What is somewhat more uncommon is for the legislation designed to achieve one purpose to be amended almost two years later to partially (and significantly) achieve its opposite purpose. This is a post which looks at the effect of section 7A of the 2018 Act, inserted by the 2020 Act, and what the Supreme Court said about it in Allister and Peeples’ applications for judicial review.

 

Section 7A: the reopened gateway

 

Section 7A adopts much of the same language as the now-repealed section 2(1) of the European Communities Act 1972 – the very same provision which Denning MR described as governing the ‘incoming tide’ of EU law. This tide does little for most of UK law, however, given that the Withdrawal Agreement, which section 7A incorporates, generally provides for the severance of the UK from the EU legal order. But this is not true of Northern Ireland, which is addressed by its own Protocol.

 

The content of the Protocol varies widely, but its major function is the continued application in Northern Ireland of aspects of the EU Single Market in goods as well as its customs code. There are additional guarantees regarding equality and non-discrimination, which link with the Good Friday Agreement. The detail of this is covered by Colin Murray in his post on Allister and Peeples, and I will not be covering it here. Nor will I cover the well-trodden discussion of the constitutional statutes doctrine, in light of the judgment. Some have discussed its demise (Murray, David Allen Green and John Bell) while others have defended its continuing health (Oliver Garner and myself). Instead, I will be covering a single paragraph of the Supreme Court judgment – a single paragraph which contains significant possibilities.

 

The gateway through which the Withdrawal Agreement (and the Protocol) enters domestic UK law is section 7A. In addition to incorporating the Withdrawal Agreement, section 7A also gives effect specifically to two highly important aspects of the Withdrawal Agreement. The first aspect is direct effect (Withdrawal Agreement, Article 4(1); section 7A(1) and (2) of the 2018 Act), by which people may directly rely on the provisions contained in or referred to in the Withdrawal Agreement. The second aspect is to subject every enactment (including the 2018 Act itself) to the provisions of the Withdrawal Agreement (Withdrawal Agreement, Article 4(2); section 7A(3) of the 2018 Act). This trifecta of consequences was used to great effect by the Supreme Court when faced with a particular conundrum.

 

The modification of the Northern Ireland Act

 

The Northern Ireland Act 1998 is the primary legislation governing modern devolution in Northern Ireland. The relevant part of the statute for this post is section 42, which creates a powerful legislative mechanism unique in the UK’s legislatures. This mechanism, the petition of concern, is a petition which can be moved by as few as one-third of MLAs and if so moved, triggers a requirement for cross-community support in respect of the matter against which the petition was moved. Cross-community support is significantly more difficult to achieve than a simple majority, especially in a legislative body which can at times be highly polarised. But section 42 was originally applicable to any matter on which the Assembly was to vote. This was amended in 2022, and I have covered the circumstances of that amendment elsewhere.

 

The important point, however, is that section 42 remained applicable to any Assembly vote at the time that the Protocol was incorporated. Almost a year after this incorporation, the Northern Ireland Secretary made new regulations with sweeping consequences. These regulations were made to provide for the so-called ‘Stormont consent vote’, by which the Northern Ireland Assembly votes periodically on the question whether or not to continue the application of EU law on goods and customs. The provision of this vote was required by Article 18 of the Protocol as well as the UK Government’s unilateral declaration on providing the vote, neither of which mentioned section 42 or the petition of concern mechanism. Now, these regulations disapplied section 42 to the consent vote. The appellants in Allister and Peeples challenged this disapplication as being in breach of the Northern Ireland Act, which was prohibited by section 10 of the 2018 Act. Thus, the appellants said, the regulations were unlawful.

 

The Supreme Court resolved this issue in paragraph 108 of its judgment. While the paragraph is lengthy, it essentially says that there was no breach of section 10 of the 2018 Act because section 7A had already modified section 42 of the Northern Ireland Act. This had occurred because Article 18 had created an obligation on the UK Government to provide for the consent vote ‘strictly in accordance’ with the terms of the unilateral declaration, which, together with Article 18, both provide for a decision based on a majority of MLAs. Section 42 would subject this to the requirement of cross-community consent. Therefore, because of the overriding nature of section 7A, the obligation created by Article 18 and the unilateral declaration modified section 42. The regulations, as a result, did not breach the Northern Ireland Act.

 

The Supreme Court’s reasoning is considerably different from that of the Court of Appeal and the High Court on this point, both of which zeroed in on the breadth of the powers of delegated legislation conferred on the Northern Ireland Secretary under section 8C of the 2018 as a complete answer to this issue. Both courts reasoned that the regulations, having been made under section 8C and in accordance with the conditions attached to that power under the 2018 Act, were made lawfully – independent of the question whether section 7A had already modified the Northern Ireland Act before the making of the regulations.

 

The implications

 

The Supreme Court’s reasoning is far from obvious when scrutinising the content of section 42 (as it originally existed), Article 18 and the unilateral declaration. First, section 42 is a conditional provision – it needs a minimum threshold of MLAs to be triggered. While it was possible to trigger section 42 in any matter on which the Assembly voted, possibility does not equate to a guarantee. In other words, section 42 would not automatically have subjected a consent vote to the requirement of cross-community support unless the 30-MLA threshold was triggered. Moreover, both Article 18 and the unilateral declaration contain the possibility of a decision to continue the application of EU law made with cross-community support (which triggers a longer waiting period before the next consent vote) – a matter the Supreme Court curiously omits to mention.

 

So, how can paragraph 108 be interpreted? Accepting the Court’s judgment as correct (which should be obvious given that no appeal is possible from a judgment of the Supreme Court) raises an interesting point. Section 7A incorporates some EU law, but through the Withdrawal Agreement (and Protocol). The Withdrawal Agreement is not a passive vehicle in this incorporation, but creates rights and obligations distinct from the EU law in respect of which it also creates obligations. After all, the consent vote is a creation, not of EU law, but of the Protocol. Thus, not only does section 7A modify domestic law in consequence of aspects of EU law, but also in consequence of the Withdrawal Agreement as a distinct source of law by itself. Moreover, as nowhere in either Article 18 or the unilateral declaration was there any explicit obligation to disapply section 42, it follows that section 7A modified domestic law by necessary implication of giving effect to the Withdrawal Agreement and the Protocol.

 

I return briefly to Denning MR’s analogy, with the incorporated EU law as an incoming tide. Incoming tides raise water levels, but they can also change the appearance of coastal areas over time. This is a possible reading of the Supreme Court’s reasoning – that section 7A brings in both EU law and Withdrawal Agreement law and modifies the domestic legal order around these sources of law – both by giving primacy to the explicit provisions of these sources and as a necessary consequence of their incorporation.

 

What this means for the future of the Protocol’s operation in Northern Ireland is difficult to tell precisely. But what is reasonably certain is that a single paragraph of the Supreme Court’s judgment contains a disproportionately vast potential.