Brexit

Trade War Looms Over Article 16: The Northern Ireland Protocol Safeguard, Explained

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Photo by Fred Moon

By Dr. Carlo Petrucci, Lecturer in Law, University of Essex

David Frost, the UK Brexit minister, has expressed discontent with the implementation of the Northern Ireland Brexit protocol. This is the trade arrangement at the heart of controversies over trade between the EU, Great Britain and Northern Ireland. Frost has threatened to trigger an emergency brake known as article 16, or even to completely renege on the protocol. But triggering it would have wide-reaching consequences.

Since the beginning of Brexit negotiations, both the EU and UK recognised the need to avoid a hard border between Ireland and Northern Ireland. This was to preserve the 1998 Good Friday Agreement.

The Protocol on Ireland and Northern Ireland was signed precisely for this purpose. Its rules ensure a smooth movement of goods between Ireland and Northern Ireland. But it also introduces checks and controls on goods entering Northern Ireland from the rest of the UK or any other third country. This way, goods entering Northern Ireland comply with EU regulatory standards and can be exported to Ireland (part of the EU) and then to other EU countries.

The EU and UK were aware that the implementation of the protocol could lead to difficulties and problems. This is why they set up a system of joint committees (UK and EU) to discuss issues arising from the protocol and to provide an opportunity for compromise.

The protocol provides that both the EU and UK can unilaterally take “safeguard measures” if its implementation leads to durable and serious economic, societal or environmental difficulties or to diversion of trade. This safeguard is known today as article 16.

Article 16 does not specify what such safeguard measures are. In international trade, they can refer to temporary tariffs, quotas or other measures designed to avoid a country suffering serious harm. Some considerations are helpful to understand article 16 of the protocol.

First, while the EU or the UK can unilaterally take safeguard measures, the other party can respond with proportionate measures to remedy any imbalance between rights and obligations created by the safeguard. Effectively, this could lead to a trade war where the other party would also take measures, such as imposing quotas and tariffs.

In any case, it must be stressed that such safeguard measures do not include tearing up the protocol and replacing it, as has been suggested in the press. In this respect, the protocol makes it clear that the people of Northern Ireland, through a democratic vote, will decide whether the protocol should remain in force in the future.

Secondly, before taking such measures, the EU and UK must attempt to find a common solution. In this case, there is a one month waiting period, starting from the date on which either the EU or the UK advises the other that it intends to take such measures. The protocol also says that any measures taken shall be discussed every three months.

Finally, the protocol is silent on the meaning of “serious economic, societal or environmental difficulties” or “diversion of trade” – the conditions under which the UK or the EU can legitimately adopt safeguard measures. The protocol does not offer any quantitative or qualitative criteria to define these difficulties.

Why the protocol is different

Safeguard measures are not unknown in international trade, for example, within the General Agreement on Tariffs and Trade/World Trade Organization (GATT/WTO) regime. These may be adopted when unforeseeable developments and circumstances connected with trade liberalisation result in an increase of an imported product, causing (or risking) serious injury to domestic producers.

It would be tempting to rely on GATT/WTO case law to define “serious economic, societal or environmental difficulties” as mentioned in article 16. After all, they both refer to “safeguard measures”. However, this would be a mistake for two reasons.

First, the problems arising from the protocol are not unforeseeable, as they were widely predicted when it was signed. Secondly, unlike GATT/WTO safeguards, article 16 measures do not refer to an injury to domestic producers resulting from an increase of imports.

The reality is that the underpinning goal of the protocol is radically different from an international trade agreement, and lies in the need to preserve the Good Friday Agreement and EU regulatory standards on goods. To be legitimate, any safeguard measure taken under article 16 must take this into account.

The article 16 safeguard measures are new and therefore there are no precedents to rely on to understand how they would work. While there may be different interpretations on the appropriate conditions to take such measures, there is little doubt that they will result in tariffs and quotas.

Invoking article 16 should be done responsibly. An unjustified triggering of article 16 from the EU or UK will bear serious economic consequences, and will be detrimental in terms of international credibility.

This article was first published on The Conversation and is reproduced on the ELR Blog under a Creative Commons Licence.

‘Unchartered’ Waters: Fundamental Rights, Brexit and the (Re)constitution of the Employment Law Hierarchy of Norms

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Dr Niall O’Connor, Lecturer in Law at the University of Essex, has authored an article exploring the consequences of Brexit for the constitutional status of the employment rights found in the EU Charter of Fundamental Rights (the Charter).

The decision of the British people to leave the European Union (EU) raises foundational questions for many legal fields. The effects are especially likely to be felt within domestic employment law, which now has a strong basis in EU law. Of particular concern is the removal of the nascent EU fundamental employment rights influence over domestic legislation. Employment lawyers have long relied on fundamental rights as a means of preserving the autonomy of their subject from general private law. One manifestation of this turn to fundamental rights concepts has been the ‘constitutionalisation’ of employment rights. EU law, notably the Charter of Fundamental Rights, has become a key underpinning of this constitutionalisation process.

This article considers the effects of the constitutionalisation in the United Kingdom employment sphere of some of the rights found in the Charter’s Solidarity Title, through its role in the emergence of a hierarchy of sources or ‘norms’ in the employment field. In order to address the question of the Charter’s influence on the hierarchy of sources in the employment context, three interrelated processes are examined.

The article begins by exploring the ‘constitutionalisation’ process, by setting out the nature of the Charter and the effects of its employment rights on the hierarchy of sources. This is followed by a consideration of the ‘deconstitutionalisation’ process brought about by Brexit, before finally examining whether a potential ‘reconstitutionalisation’ process might be underway by looking at key terms of the EU (Withdrawal) Act 2018 and the potential to replicate the Charter in domestic law.

The article was published as Online First Article on 17 March 2020 in the European Labour Law Journal and is available here.

‘Milk-shaking’ political figures and irresponsible advertising

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Dr. Alexandros Antoniou, Lecturer in Media Law, University of Essex

On 2 October 2019, the Advertising Standards Authority (ASA), the UK’s advertising watchdog, banned a promotional tweet on Burger King’s Twitter page on the grounds that it condoned anti-social behaviour.

Background

In May 2019, a 32-year-old man launched a milkshake at Nigel Farage, the Brexit Party leader, as he campaigned in Newcastle ahead of the European elections. The man pleaded guilty to common assault and criminal damage at North Tyneside Magistrates’ Court and was ordered to pay compensation and carry out unpaid work. District Judge Bernard Begley was unimpressed by the claim that his act was a “right of protest” and called instead the incident an “act of crass stupidity”.

In response to this incident, an Edinburgh-based McDonald’s branch announced in May that it chose not to sell milkshakes while a Brexit political rally, addressed by Farage, was held nearby. However, Burger King’s approach was different. Shortly after the McDonald’s announcement, they tweeted:

Is ‘milkshaking’ becoming a habit?

The tweet, which was retweeted more than 19,000 times, attracted 24 complaints because it was believed to encourage violence. A follow-up tweet by Burger King made clear that this was not the intention behind it, stating that they would never endorse violence.

But ‘milkshaking’ appears to be emerging as a growing tactic in protest against right-wing political figures. ‘Milkshaking’ causes people to look profoundly embarrassed in front of the press, without however inflicting any substantial harm. In addition to suit cleaning costs, Farage was awarded compensation for inappropriate “distress and inconvenience”. He tweeted that normal campaigning was becoming impossible because some ‘remainers’ (i.e. individuals in favour of the UK remaining in the EU) had been “radicalised”.

The English Defence League (EDL) leader Tommy Robinson and the failed UKIP candidate Carl Benjamin also had food and milkshakes repeatedly thrown at them during their European election campaigns. ‘Milkshaking’ seems to be taking off on the other side of the Atlantic too. It was reported in June 2019 that a woman threw an unspecified drink over Matt Gaetz, a pro-Trump Republican Congressman, as he was leaving a coffee shop in Florida. She was later charged with battery and released on bail.

The ASA ruling

Because of the wide media coverage of a spate of incidents of ‘milkshaking’ political figures, the ASA (whose remit includes claims made by companies on their own websites and in social media spaces under their control) considered that people who read the tweet were likely to understand it as a reference to those incidents.

Although the regulator recognised that the tweet may have been intended as “a tongue in cheek reaction” to the suspension of milkshake sales by the fast food giant’s competitor, it held that:

“in the context in which it appeared […] it would be understood as suggesting that Burger King milkshakes could be used instead by people to ‘milkshake’ Nigel Farage.”

The ASA held that the ad condoned such anti-social behaviour and irresponsibly encouraged further instances in breach of the regulator’s harm and offence rules, which require advertisers to avoid including in their marketing communications material “likely to condone or encourage behaviour that prejudices health or safety” (CAP Code, Rule 4.4). The ASA ruled that the ad must not appear again in its current form.

As speculation over the prospect of an early general election after MPs returned to Parliament is mounting, and campaign events possibly nearing, the ASA’s adjudication usefully reminds us to drink milkshakes responsibly.

To Prorogue or Not?

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Theodore Konstadinides, Professor of Law, University of Essex and Charilaos Nikolaidis, Lecturer in Law, University of Essex have published a new piece on the Blog of the International Journal of Constitutional Law.

The authors consider what the UK constitution permits in circumstances where Parliament is in effect prevented from carrying out its duties in holding the government into account prior to Brexit day. You can read their full post entitled ‘To Prorogue or Not: An Implied Constitutional Convention to End a “Constitutional Outrage”’ here.

Suggested citation: Theodore Konstadinides & Charilaos Nikolaidis, To Prorogue or Not: An Implied Constitutional Convention to End a ‘Constitutional Outrage’, Int’l J. Const. L. Blog, Sept. 1, 2019’.

Workshop on ‘Brexit: Regulatory Challenges for Business Law’

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10 May 2019 10.00am – 5.00pm University of Essex, Wivenhoe Park, Colchester, CO4 3SQ

The UK’s withdrawal from the EU will result in far-reaching, significant consequences for the regulatory spheres of both the UK and the remaining Member States. Even after the completion of the withdrawal process, EU laws will still impact businesses operating in the UK, both directly and indirectly. Fields which are most likely to be affected include product specifications, competition, employment, health and safety, banking and financial services, company law, insolvency, consumer protection and insurance. Despite this, there continues to be gaps in the research which has been carried out to explore the ultimate consequences of Brexit on the business regulatory environment.

This workshop, organised by the Commercial Law Cluster at the University of Essex, aimed to cover this research gap by exploring the opportunities and risks faced by UK business in this time of legislative change. In particular, this workshop focused on three key legal fields: (i) finance and banking law; (ii) corporate law; and (iii) maritime and insurance law.

The purpose of this workshop was to raise awareness and foster debate on the rules that will govern the UK after Brexit. The regulatory changes for each of these three economic sectors were discussed in separate panels. In each panel, invited speakers provided an overview of the opportunities and challenges faced by businesses. Invited discussants then complemented these presentations with views from both academia and legal practice.

The programme and speakers included:

Welcome: Professor Theodore Konstadinides (University of Essex)

Keynote Presentation: Professor Takis Tridimas (King’s College London; Matrix Chambers)

Session One: Finance and Banking

Financial Markets: Professor Stuart Weinstein (Aston University) and Dr Flora Huang (University of Essex)

Banking Supervision: Dr Menelaos Markakis (Erasmus University Rotterdam) and Dr Anastasia Karatzia (University of Essex)

Session Two: Corporate Law

Chair: Dr Eugenio Vaccari

Company Law: Professor Janet Dine (Queen Mary University of London) and Dr Marios Koutsias (University of Essex)

Insolvency Law: Hamish Anderson (Norton Rose Fulbright) and José Carles (Carles Cuesta Abogados y Asesores Financieros, Madrid)

Employment Law: Dr Jennifer Gant (University College Cork) and Dr Niall O’Connor (University of Essex)

Session Three: Maritime, Shipping and Insurance

Chair: Dr Lijie Song

Shipping: Zoumpoulia (Lia) Amaxilati (Queen Mary University of London) and Dr Durand Cupido (University of Essex)

Insurance: Dr Keren Wu (University of East Anglia) and Dr Anna Antoniou (University of Essex)

Closing Presentation: Professor Steve Peers (University of Essex)

Article 50 can be revoked: here’s what it means for Brexit

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Carlo Petrucci, Lecturer in Law, University of Essex

*This article is republished from The Conversation under a Creative Commons license. Read the original article.

 

Article 50 of the Treaty on European Union can be divided into two parts. The first recognises the right of a member state to withdraw from the European Union. The second establishes the procedure that the withdrawing member state and the EU institutions have to follow to manage that withdrawal.

Article 50 says that the member state has to notify the European Council of its intention to withdraw from the European Union. However it does not say whether, once such notification has been made, such intention may be revoked and membership retained.

This was the issue under consideration in a case brought before the European Court of Justice. The court has now ruled that a withdrawing member state may revoke its intention to withdraw from the EU unilaterally.

The key word here is “unilaterally”. In this context, it means that the revocation decision is not subject to the unanimous consent of the European Council, the European institution representing the member states.

However, it’s important to note that the court added that the decision to revoke Article 50 must be “unequivocal and unconditional”. This means that the member state has to make it clear that it wishes to maintain its EU membership. This is not about extending the Article 50 process to extend the Brexit transition period beyond March 2019. That would still require agreement from the EU member states. Rather, a notification revoking Article 50 means not leaving the EU at all. In other words, it would stop Brexit.

Of equal importance is timing. The court said a member state can only revoke Article 50 while its withdrawal agreement with the EU, which sets outs the terms of departure, has not yet entered into force. If the withdrawal agreement has not been concluded, revocation may take place during the two-year period that starts when Article 50 is triggered, or even beyond the two-year period if the remaining member states decide to grant such an extension.

In Brexit terms, this means that the UK can revoke Article 50 unilaterally before its agreement enters into force or, if it does not enter in force, until March 29 2019. It can also revoke it after that date if the European Council agrees to extend the transition period of Article 50 beyond 29 March 2019.

A legal first

The ECJ case originally started in a Scottish court, which asked the Court of Justice to clarify the issue of revocation of the intention to withdraw from the EU. Given the misrepresentation given by Brexit supporters about the Court of Justice and their sudden hostility towards it, it’s important to remember that the Court of Justice interprets and applies EU law. It does not, nor can it, interpret or apply national law. This has always been the case since its establishment in 1952.

This was a challenging case because the the UK was the first country to ever trigger Article 50, so there was no legal precedent to rely on when making a decision. If the text of the law is silent, should it be implied that a particular conduct is allowed because it is not expressly prohibited, or should it be implied that it is not allowed because it is not expressly permitted?

In this typical interpretative dilemma, the court reasoned that if EU law recognises the sovereign choice of a member state to leave the EU, then revoking that intention should also be seen as a sovereign decision. It also noted that “given that a state cannot be forced to accede to the European Union against its will, neither can it be forced to withdraw from the European Union against its will”.

In this regard, the court noted that if a member state cannot unilaterally revoke its decision to leave the EU, then this would amount to allowing the expulsion of a member state. Indeed, the court noted that when drafting what eventually would become Article 50, a number of amendments to allow the EU to expel member states were rejected. This further supports the conclusion that a member state is entitled to reverse its decision unilaterally.

The ECJ ruling is not surprising. Legally speaking, it would have been much harder to justify the opposite conclusion. It is also in line with the Vienna Convention on the Law of Treaties, which allows revocation of a decision to withdraw from an international treaty.

The immediate implication is that the EU member states are not allowed to interfere with the United Kingdom’s future course of action, for example by setting new conditions for allowing the UK to remain in the EU. However, like many domestic and international rulings, it has an internal political implication: it adds a further option to the current ones on the table. The pressure taken off from the EU is now entirely on the UK.

A revocation decision would run counter to the outcome of the UK referendum. It would be unpalatable, unattractive, and risky, but so are the other choices. By approving the withdrawal agreement, the UK becomes a rule-taker with no voice. By rejecting the withdrawal agreement, it faces serious and radical economic disruption. Either way, the ultimate decision must be made through the British political system. The ECJ ruling is another stark reminder of this enormous responsibility.

Photo: European Sanctions Blog