Why did the EU Try to Trigger Article 16?
Updated: Dec 22, 2021
On Friday 29th of January, Brussels said that it would trigger article 16 of the Northern Ireland (NI) protocol. This decision was met with a flurry of criticism from both sides of the Irish border. After a late evening phone call with Downing Street, the EU made a swift U-turn.
If you are at all confused about what article 16 is, why it was triggered and why this decision was subsequently revoked, then keep reading because this guide explains all.
What is Article 16?
Under the Brexit deal between the EU and the UK, NI – one of the four countries of the UK – is to remain in the single market, operating under EU regulations. This part of the NI protocol attempts to resolve the sticky Irish border question that Brexit raised. The UK leaving the EU had threatened to re-introduce checkpoints along the politically sensitive border between NI and the Republic of Ireland.
A core part of the Brexit treaty, article 16 of the NI protocol gives the EU or UK the ability to unilaterally suspend aspects of its operation. It is supposed to be a last resort action in the face of “economic, societal or environmental difficulties”.
If article 16 is triggered, the UK or EU can take safeguarding measures if the NI protocol causes serious and prolonged dangers to their respective territories. Essentially, this means that if anything bad happens after Brexit, the UK or EU can use article 16 to rejig their relationship with NI and the other territory could then take rebalancing measures in response.
Why it was triggered by the EU
The EU is currently witnessing a shortfall of Covid-19 vaccines after AstraZeneca was forced to slash deliveries to the EU by more than half after production problems in a Belgian factory. Brussels has come under fire for not securing enough jabs for EU member states. This has caused a row between the EU and Oxford-AstraZeneca, with EU claiming that they were being treated as ‘second class’ by the pharmaceutical company.
EU countries are behind the UK in terms of the vaccine rollout. A BBC article from last week reported that 11.4 of every 100 people have received their jabs in the UK compared to the 2.3 of every 100 people in the EU.
As NI is the only part of UK territory which still operates in the single market, trade is unrestricted from the EU to NI and from NI to the UK. This was a great source of concern for the bloc. The EU was worried that NI could be used as a ‘back door’ to send more vaccines to the UK unchecked.
The EU initially wanted to trigger article 16 to control exports of the Covid-19 vaccines as the bloc wanted to protect vaccines going out of EU countries at all costs but refused to call it a ‘ban’.
Why the EU received backlash from member states
The EU’s decision to trigger Article 16 quickly received a great deal of backlash. NI’s first minister, Arlene Foster described the move as an “incredible act of hostility”. She went on to explain that this is a “despicable” move as it would create a hard border between NI and the Republic of Ireland that the protocol was designed to prevent.
A senior EU diplomatic source said: “This is an extraordinary misjudgement and shows a complete misunderstanding of the protocol and Article 16, which is meant to be used as a last resort. There was no discussion about this and came like a shot out of the blue.”
The Independent reports that a No 10 spokesman said: "The UK has legally-binding agreements with vaccine suppliers and it would not expect the EU, as a friend and ally, to do anything to disrupt the fulfilment of these contracts.”
Why they reversed their decision
Late evening on Friday 29th of January, European Commission President Ursula Von der Leyen tweeted that after “constructive talks” with Prime Minister Boris Johnson, the EU was not going to place restrictions on exports where companies were fulfilling their contractual obligations.
In other words, the EU made a swift U-turn on their decision to trigger Article 16 after its widespread condemnation. Von der Leyen explained that consideration was first given to tracking exports to NI because they can leave the EU without checks. The commission was initially looking for a solution that stems from NI’s position in the single market.
In response to an Irish Times spokesperson, Von der Leyen stated: “The final version of the regulation we have adopted does not include any reference to article 16. The consideration given to invoking Article 16 was dropped before the decision was made final. So, despite the fact that I regret that Article 16 was mentioned in a provisional version of the decision, I am glad that the commission was quick on its feet to find another solution to address the question at stake”. You can read the full interview here.
AstraZeneca’s chief executive, Pascal Soriot said the company was working 24/7 to improve supplies to the EU. The pharmaceutical company has promised that vaccines delivered to the EU will greatly increase after March, stating that it is their priority to vaccinate as many people as quickly as they can.
With Covid-19 still presenting health threats across the globe, it seems the return to normality across the EU that vaccines promised is going to take a little longer than expected.
For more information on this topic, check out our section on Brexit.