The European Commission and the Article 16 Debacle

Dr. Nicholas WrightLecturer in EU Politics, Department of Political Science UCL, discusses the implications arising from the Commission’s U-turn on triggering Article 16 in the vaccine supply row and highlights the lessons that can be learnt from this debacle.


The European Commission’s announcement on 29 January that the EU was preparing to invoke Article 16 of the Northern Ireland Protocol as part of measures to prevent Covid-19 vaccines from being exported out of the bloc unsurprisingly caused consternation. It was in essence saying it would use a very big hammer to crack a small and largely hypothetical nut. And although it rowed back within a few hours once the ramifications of this decision became clear, the reputations of both the Commission and its President Ursula von der Leyen have been significantly dented. Indeed, they achieved the seemingly impossible by uniting parties across Northern Ireland’s political divide in condemning the move.

The accusation by Arlene Foster, NI First Minister and DUP leader, that the Article 16 debacle was “an act of aggression” is both wide of the mark and tinged with hypocrisy, particularly given her own party’s track record in agitating for Article 16 to be invoked almost from the moment the Trade and Cooperation Agreement came into force. This incident clearly demonstrates, though, the instability of the new arrangements and their continuing vulnerability to those determined to see key elements of the Withdrawal Agreement – and especially the Northern Ireland Protocol – torn up. The Commission’s poor judgement and cack-handedness is thus a major own goal, exacerbating what is already a low-trust environment.

A number of lessons can be drawn from this brief but consequential crisis, three of which are highlighted here:

1. The Commission’s senior leadership needs to up its game. The Commission is not alone in struggling with the complexity of responding to the pandemic. Its ability to do so is made harder by the fact that competence over health policy remains a national responsibility. It has, though, struggled to coordinate and lead on EU efforts to secure vaccine production and supplies, and support the rollout of national vaccine strategies. The high profile dispute with AstraZeneca and its willingness to impose restrictions on vaccine exports are symptomatic of understandable concerns that it is not in control of the situation.

While the Commission may be legally within its rights to impose export restrictions to safeguard Member States’ interests, the fact it decided to invoke Article 16 without wider consultation is highly problematic. Neither Michel Barnier, until just days ago the EU’s chief negotiator with the UK, nor Maros Sefcovic, the Commissioner responsible for implementation of the UK-EU TCA, were informed, while member states were “blind-sided”. It took direct intervention by the Irish Taioseach Micheal Martin who explained the ramifications to von der Leyen for the decision to be reversed. Consultation with relevant stakeholders is a fundamental part of the Commission’s work. Its failure to do so in this case reflects very poorly on von der Leyen and her advisors.

2. Everyone needs to significantly improve their understanding of the new UK-EU arrangements. The Article 16 dispute highlights both the fragility and enormous complexity of the post-Brexit UK-EU relationship. The Commission’s swift reversal of its decision is welcome; but the bigger question is how and why this happened in the first place. That no one in von der Leyen’s cabinet seemed to be aware of the implications of this action is a matter of considerable concern. It indicates that outside those directly involved in the negotiation of the Withdrawal Agreement and TCA, there is a troubling deficit in understanding of what they entail – an issue on both sides of the Channel.

Julian Smith, the former Northern Ireland Secretary, was right to call for copies of the Good Friday Agreement and Northern Ireland Protocol to be “circulated round the Commission, read and fully understood”. This applies equally to Westminster, Whitehall and the devolved administrations here in the UK. It will take time for this complex new dispensation to bed down and there will inevitably be spats over implementation and interpretation. Lawmakers and civil servants in both the UK and Brussels must therefore be across all facets of the agreements. As part of this, a clear and honest understanding of what Article 16 is and is not for is essential. (Katy Hayward and David Phinnemore of Queen’s University Belfast provide an excellent explanation here.)

3. Being outside the room matters. While extreme, the Article 16 crisis is a timely reminder of the risks for the UK in terms of EU policymaking now that it is ‘outside the room’. Member states can expect to be consulted on major policy initiatives. Moreover, they have extensive networks centred on their missions in Brussels tasked with knowing what is in the pipeline and responsible in the negotiating room for shaping outcomes according to their respective interests. As a third country, the UK will find this significantly more challenging and will be much more reliant on others for information about EU decisions which may well affect it but to which it is no longer party.

Exercising influence will inevitably be much harder, more time-consuming and require greater resources. It will also demand goodwill. While the UK government was pragmatic and (refreshingly) calm in its response to the Article 16 crisis, the broader relationship with the EU remains tense. Moreover, the crisis revealed – albeit briefly – the capacity for the EU to negatively impact on the UK. Both sides need the relationship to work but the UK has been reminded that its interests are no longer the Commission’s concern. One step the UK could immediately take to improve relations, therefore, would be to resolve the stand-off over the status of the EU’s ambassador to London.

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This thankfully short-lived crisis has been a salutary lesson in the consequences of policy-making without sufficient consultation or awareness of wider context. It has also been a reminder of the UK’s changed circumstances and of Dublin’s increased importance as a friend and ally. Given the wider tragedy unfolding as a result of the pandemic, it is to be hoped it is not repeated.


Photo by Hakan Nural on Unsplash


NoteThe views expressed in this post are those of the author, and not of the UCL European Institute, nor of UCL.

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