Pressing the Big, Red Button – Article 16 Explained

Amid the cumbersome ‘teething problems’ of implementing the Northern Ireland Protocol that have been prominent throughout January’s headlines, it was generally considered that these were mostly focused on the future of intra-UK trade. On the whole, the Protocol had been welcomed by all sides, a few expected grumbles of discontent aside, and all were committed to making it work in such a difficult economic environment.

However, the conversation changed dramatically last week as the European Commission activated Article 16 of the Protocol in order to prevent the export of COVID-19 vaccines to Northern Ireland. But what is Article 16?  This, and a breakdown of the impact it could have on your business, will be outlined in today’s blog.

What is Article 16?

Listed as ‘Safeguards’, Article 16 of the Withdrawal Agreement’s Protocol on Ireland/Northern Ireland states that if the Protocol’s implementation ‘…leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade’, then either the UK or the EU can take ‘appropriate safeguard measures.’

Crucially, both the UK and the EU can trigger Article 16 unilaterally and do not need to make the other party, or either Northern Ireland or the Republic of Ireland, aware of their intentions. This was generally regarded as a position of last resort for either party, which is further made clear by the allowance for the non-triggering party to take ‘proportionate rebalancing measures’.

There is a lack of clear definition for these teams, meaning there is much scope available to both the UK and the EU when triggering it. Although this seems logical considering the many problems that could arise from the Protocol’s implementation, it can lead to its use in situations it was not strictly designed for.

Why did the EU Commission trigger Article 16?

Due to issues with their vaccine rollout, the EU had sought to avoid any further shortfalls in the number of vaccines available to member states. With the Protocol creating a ‘backdoor’ for EU trade to flow into the UK, there were concerns it would be used as a method to circumvent EU restrictions on authorising exports.

By triggering Article 16, the European Commission effectively created a temporary hard border in Ireland by suspending the Irish Sea border.

What does it mean for future trade?

Although Article 16 has a broad scope, it was not designed to be used in such a situation as it debuted in. Article 16 was included as a mechanism to ensure that the Protocol was implemented in a manner detrimental to either party and to ensure that it maintains a balanced and considered impact.

Considering the ferocity of the condemnation to the EU Commissions actions from Belfast, Dublin and London, it is likely that any future use of Article 16 will not be considered lightly. For many politicians throughout the UK and Ireland, the EU’s decision to trigger Article 16 was a violation of the spirit of the Protocol and although they quickly reversed their decision, the move has severely damaged the hard-won trust that had been built up through negotiations.

Article 16 is likely to appear again sooner rather than later. At Stormont and in Westminster, there are individuals lobbying the government to trigger it over the negative impact of checks on goods entering Northern Ireland from Great Britain. Though this is more aligned with the scope of Article 16, it is difficult to see the UK government following suit and activating what some called ‘the nuclear option’ less than a week ago.

As the post-Brexit landscape continues to develop and trade flows and patterns take shape, it is likely that there will be points of contention. Despite the reaction, the EU has not ruled out activating Article 16 in the future should they deem it necessary and with much to be decided over the coming years, it is likely that the UK government will have their hand over the button too.