The European Commission had a representation in London throughout the UK’s membership of the EU. From the mid-1970s it also had regional offices in Cardiff and Edinburgh and, from 1980, in Belfast. They all closed on 31 January 2020.
The function of these offices had been partly public-facing (for example, to offer information to the public about the EU) and partly diplomatic (to ensure the Commission had a good understanding of the interests and needs of the constituent parts of the UK).
The EU’s External Action Service (EEAS) opened an office in London on 1 February 2020. The Delegation of the EU to the UK functions as a kind of embassy for the EU under the leadership of an ambassador, João Vale de Almeida.
This is normal practice for non-member states; the EU has about 130 such delegations across the world, providing country reports and analysis to the EEAS and raising awareness of the rights of EU citizens in that country.
A potential EU diplomatic presence in Northern Ireland
The EU has proposed to the UK that the EEAS will open an office in Belfast, in recognition of Northern Ireland’s unique position, but this proposal has reportedly been rejected by Whitehall.
Such an office could serve two functions: (i) technical (overseeing, as appropriate, the implementation of the Protocol), and (ii) diplomatic (ensuring a good level of understanding in Brussels about the political, economic and social conditions of Northern Ireland).
As a diplomatic presence, an EU office could fill the gap left by the closure of the EU Commission’s offices in Belfast. This is uniquely important for Northern Ireland for four main reasons.
First, the Protocol means that Northern Ireland will continue to be directly affected by decision making in the EU to a significantly greater extent than any other part of the UK (as we note below).
Second, Northern Ireland is a society in transition to peace. It remains deeply divided politically, including over Brexit and the terms of withdrawal.
The more aware the EU is of the circumstances in Northern Ireland, the better the possibility for sensitivity to its interests and needs, especially in the implementation of the Protocol that will affect the region.
Third, a substantial portion of Northern Ireland’s population are EU citizens and all but a small minority have a birth right to Irish citizenship and therefore EU citizenship.
And, finally, Belfast, as distinct from the alternatives of London and Dublin, may be seen as a ‘neutral’ location for EU representation in and of Northern Ireland – something that is of importance given the political sensitivities concerned.
The technical implications of the Protocol
The Protocol on Ireland/Northern Ireland in the withdrawal agreement means that Northern Ireland is in quite a distinctive position vis-à-vis the EU, and will continue to be so until such time as the Protocol is replaced or its provisions disapplied.
Irrespective of the UK-EU relationship following the end of the transition period, Northern Ireland will remain de facto in the EU’s single market for goods, and so subject to the rules of the EU’s customs union and trade defence instruments.
The continued application of over 280 EU legislative acts will ensure that Northern Ireland is aligned with key elements of the EU’s body of law, including in such areas as chemicals, food, and machinery.
EU measures on VAT and excise will also apply. Looking ahead, Northern Ireland’s legislation will continue to be dynamically aligned to EU law in these areas, even as the rest of the UK diverges.
The Brexit preparedness notices published by the EU make it very clear that the withdrawal agreement differentiates between the rules which will apply to Great Britain (as a non-member state) and to Northern Ireland (as a de facto member of the single market) across a wide range of sectors.
This means, importantly, that the EU’s rules will apply on goods moving from Great Britain into Northern Ireland.
For example on excise duties, the notices point out that ‘[t]ransactions involving movements of goods between Northern Ireland and the other parts of the United Kingdom will be regarded as imports or exports for the purpose of EU rules on excise.’
And on food: ‘The IE/NI Protocol provides that EU food law applies to and in the United Kingdom in respect of Northern Ireland.’
In summary, the Protocol means that Northern Ireland will be expected to comply with EU rules on customs, safety and technical standards, the composition of products, and so on – all of which will no longer apply in the rest of the UK.
The UK will be responsible for ensuring compliance with applicable Union law in Northern Ireland; the EU will want to be confident that this is done.
The EU’s [technical] ‘right to be present’
Article 12 of the Protocol on Ireland/Northern Ireland addresses its implementation, supervision and enforcement.
It says that ‘Union representatives shall have the right to be present during any activities of the authorities of the United Kingdom related to the implementation and application of provisions of Union law made applicable by this Protocol, as well as activities related to the implementation and application of Article 5 [i.e. customs, movement of goods]’.
In agreeing the Protocol, the UK has made the commitment to ‘facilitate such presence of Union representatives and shall provide them with the information requested’.
The Protocol notes that ‘the practical working arrangements’ regarding the above-mentioned ‘rights of Union representatives’ are to be first proposed by the Specialised Committee on the Protocol and subsequently determined by the UK-EU Joint Committee.
This implies that the question of the EU’s technical presence is not a matter of whether it will occur but how. It also shows that the decision is to be a joint UK-EU one, and cannot be vetoed.
What could this ‘technical’ presence look like in practice?
Although the Protocol does not specify what activities relating ‘to the implementation and application of provisions of Union law’ are covered, it is clear that they relate at minimum to the functions of customs authorities supervising and facilitating the flow of goods into and out of different customs regimes.
Given that the movement of goods from Great Britain to Northern Ireland will come under the same terms as the movement of goods from a third country into the EU, it may be assumed that the Protocol allows – at the very least – for the presence of EU representatives alongside those of the UK authorities enforcing rules regarding the movement of goods across the Irish Sea.
The type of personnel involved would include customs officers and veterinary staff.The type of activities would include everything from documentary checks, to physical inspections, to laboratory tests – and the scope is particularly complicated when involving animal and plant products.
Such activities would take place, typically, at the point of entry (ports and airports), and require specialised facilities.
Notably, this is quite different to the function of a ‘technical’ EU office.
It is possible to see how the difficulties of operationalising the Protocol could escalate depending on the future UK-EU relationship.
In sum, the more distant and divergent the post-transition UK-EU relationship, the greater the scale of checks and controls on the movement of goods across the Irish Sea and, therefore, the greater the incentives for (and risk of) smuggling and other illegal operations.
Thus, as the challenge of enforcement grows for the UK, so will the EU’s demand to oversee such enforcement taking place.
The Protocol also means that the production of goods (including food) in Northern Ireland will come under different terms to those of the rest of the UK; the application of Union law in this case will also have to be enforced by UK authorities, and Union representatives also have the right to be present.
What does the EU typically do in customs enforcement on its borders?
Although member states are bound by the Union Customs Code, enforcing EU border controls is a national competence implemented by national authorities (albeit with a few exceptions, such as the case of the European Anti-Fraud Office).
A pertinent question to ask when it comes to the presence of ‘Union representatives’ alongside UK authorities in implementing the Protocol is ‘who would these representatives be?’
When it comes to enforcing the Union Customs Code or EU single market rules (such as sanitary and phytosanitary controls) on goods crossing into the EU territory, it is typically the customs authorities of the neighbouring EU member state which act as the ‘Union representatives’.
If this were to happen in the case of Northern Ireland, therefore, the Irish Revenue Commissioners (IRC) would be the agents involved.
It is also commonplace for there to be joint enforcement actions on customs between EU states and non-member states, as has been known to happen, for example, on Switzerland’s borders.
Even beyond the EU’s external borders, there are instances where customs officers from EU and non-EU administrations work together, such as on a specific anti-smuggling operation that may begin in a different continent.
In fact, it is quite usual for the EU to work cooperatively on customs enforcement with third countries. Indeed, it has signed customs cooperation and mutual administrative assistance agreements with several countries, including the US, China and India.
These agreements provide for the possibility of the level of customs cooperation being increased and its scope expanded. Their implementation and effective application are overseen by a joint committee.
The EU also has input into border management beyond its external borders, including through the agencies of non-member states.
One example is the Integrated Border Management Programme that it operates with Eastern Partnership countries (Armenia, Azerbaijan, Belarus, Georgia, Moldova and Ukraine).
This includes training and capacity-building for border agents, plus measures to improve interoperability of border management bodies.
This serves as a reminder – even aside from the Protocol implementation – that the interoperability of border management systems (including data exchange) and cooperation in border management between the UK and its EU neighbours will be important in and of itself long after the transition period.
The mechanisms for monitoring Turkey’s customs union with the EU
An interesting comparison can be made with Turkey, which is outside the EU and its single market but is in a customs union with the EU. One of the missions of the EU’s Delegation to Turkey is to monitor implementation of the provisions of this agreement.
Monitoring arrangements as set out in the 1995 decision establishing the EU-Turkey customs union are not as extensive as in the NI/Ireland Protocol. Article 7 states that officials of the EU or Turkey may, with the agreement of the other, obtain from the other ‘information relating to the breaches of customs legislation.’
Furthermore, it allows that ‘[o]fficials of a Party [EU or Turkey] may, with the agreement of the other Party involved and within the conditions laid down by the latter, be present at inquiries carried out in the latter’s territory.’
Implementation of the EU-Turkey Customs Union has not been without its problems, as can be seen in the report of a recent meeting of the EU-Turkey Customs Union Joint Committee.
These may give some indication as to why the EU wishes to avoid such difficulties when it comes to the implementation of the Protocol. This case also gives some indications as to potential concerns from Northern Ireland, as the ‘rule-taker’ region.
For example, Turkey tends to use the joint committee meetings to reiterate its request (much in vain so far) that it be allowed to participate in EU decision making and consultation mechanisms relevant to the customs union.
A distinction should be made between the technical and the diplomatic functions of an EU presence in Northern Ireland after the end of the transition period.
The EU’s technical presence has been agreed to in principle in the Protocol and therefore the question really is about how it is operationalised, rather than whether it can or should occur.
In contrast, the diplomatic presence of the EU in Northern Ireland is not a legal necessity but it should be considered in the round.
There are detailed matters to be considered when it comes to a potential EU presence in Northern Ireland, including whether it is formalised on a permanent basis or through temporary visits.
Another question to be addressed is whether ‘Union representatives’ present will be those of the neighbouring state of Ireland, or drawn together from various member states to form an EU team.
Although the Irish Revenue Commissioners and HMRC already cooperate, once the UK is outside EU mechanisms and rules altogether (after the transition period has ended), the technical and the political context for this cooperation will be much changed and potentially sensitive (especially in Northern Ireland itself), and will have to be handled with care.
Engagement with stakeholders most affected is vital before the Specialised Committee comes to make a proposal on these matters.
Ultimately, the matter of an EU office in Northern Ireland should be considered in light how the interests and views of Northern Ireland might be heard and represented at the EU level.
This debate is not uni-directional. The greater the EU’s direct presence and oversight of the implementation of its rules in Northern Ireland, the stronger the claim for Northern Ireland’s participation in relevant EU committees and decision-shaping processes after Brexit.
One thing is clear: the Protocol ensures that Northern Ireland’s situation is both unique in the UK and unique for the EU.
When it comes to deciding how the Protocol is operationalised, there is a risk that Northern Ireland is viewed by both sides in reductive terms – as a ‘backdoor’ or ‘bargaining chip’ – and thus that they become dangerously blind to why such a compromise was needed in the first place.
For better or worse, the decision as to the details of a future EU presence in Northern Ireland constitutes one of the first tests of goodwill and sensibility from both sides of the post-Brexit UK-EU relationship.