The EU could impose tariffs on fish and agricultural goods in the UK in just seven days if Boris Johnson continues to take action against parts of the Brexit protocol for Northern Ireland, legal experts said.
According to Catherine Barnard, a professor of EU law at the University of Cambridge, the short, sharp shock is one of the three key retaliatory weapons available through the trade agreement.
1. The nuclear option – termination of the Trade and Cooperation Agreement (TCA), using Articles 770 and 779
These clauses allow the EU to terminate the entire trade agreement, which means an end to duty-free trade in both directions, along with all other elements of the deal, including 90-day visa-free holidays and the fisheries agreement.
This will essentially return the UK to a Brexit scenario without a deal, with detrimental consequences, including the cessation of police and security cooperation, a major move with long-term consequences for EU-UK relations.
As this requires one year’s notice, Member States that want to show that they have real teeth in front of what they consider to be an act of bad faith on the part of the United Kingdom may not like it.
2. Option with a finger on the button – art. 521
This will allow the EU to suspend TCA’s trade units, leaving all other areas agreed last December, including visa-free holidays and police co-operation, intact.
Again, this option may not be to the liking of the Member States, as it will not achieve the practical objectives of demonstrating that the EU has teeth.
“It seems unlikely to me that they will do this, because, frankly, if things have gone so badly that the EU is talking about terminating part of the treaty, it seems unlikely that they will continue to cooperate in other areas,” Barnard said.
3. Trade war for one week – art. 506, para 2
This allows the EU to “suspend, in whole or in part”, access to its waters.
Such an answer may have nothing to do with Northern Ireland, but Barnard says: “The advantage from the EU’s point of view is that you only have to give seven days’ notice”, so the trade war can start within a week.
In addition, Article 506 allows for wider retaliation if deemed necessary. If the EU considers that the cessation of fishing around the Channel Islands or the Isle of Man is “commensurate with the economic or social impact of the alleged failure” of the United Kingdom to comply with the threat, it may suspend duty-free trade “in whole or in part”.
In other words, you can impose duties on fish and other goods within seven days.
But is this and / or a situation?
The treaty governing the current trade agreements – the trade and cooperation agreement – gives significant powers to each party to end the relationship. Barnard says: “They [the EU] they could all do them all at once, but they are more likely to try to escalate things. “
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The fact that the EU is considering pushing one of the options just 18 months after the UK left the bloc with a trade deal is remarkable in the history of trade disputes.
“If you look at the World Trade Organization, the number of disputes between countries is relatively small,” Barnard said. “The whole purpose of the dispute settlement mechanisms is to resolve disputes, and that is why you have these provisions in the withdrawal agreement and the TCA. But instead of talking about a resolution, we are talking about strengthening the arguments to the point of terminating the treaty. That’s extraordinary. “
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