Explanatory Memorandum to COM(2020)832 - EU position in the Joint Committee established by Article 164 of the UK withdrawal agreement from the EU as regards amending the Protocol on Ireland/Northern Ireland

Please note

This page contains a limited version of this dossier in the EU Monitor.

dossier COM(2020)832 - EU position in the Joint Committee established by Article 164 of the UK withdrawal agreement from the EU as regards amending ...
source COM(2020)832 EN
date 27-01-2021


1. Subject matter of the proposal

The Commission proposes that the Council establishes the position to be adopted on the Union's behalf in the Joint Committee established by the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (‘the Withdrawal Agreement’) on a Joint Committee decision to amend that Agreement.

2. Context of the proposal

2.1.The Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community

The Withdrawal Agreement sets out the arrangements for the orderly withdrawal of the United Kingdom from the Union and Euratom. The Withdrawal Agreement entered into force on 1 February 2020.

2.2.The Joint Committee

The Joint Committee established under Article 164(1) of the Withdrawal Agreement comprises representatives of the Union and of the United Kingdom. It is co-chaired by the Union and the United Kingdom. Annex VIII to the Withdrawal Agreement lays down the rules of procedure of the Joint Committee. The Joint Committee meets at least once a year or at the request of the Union or the United Kingdom and it sets its meeting schedule and agenda by mutual consent.

The tasks of the Joint Committee are laid down in Article 164 of the Withdrawal Agreement and consist principally of:

·overseeing the implementation and application of the Agreement directly or through the work of the specialised committees reporting to it;

·adopting decisions and recommendations, including amendments to the Agreement in the cases provided therein;

·preventing problems and resolving disputes that may arise regarding the interpretation and application of the Agreement.

2.3.The envisaged decision of the Joint Committee

The Joint Committee can adopt a decision amending the Withdrawal Agreement, pursuant to Article 164(5)(d) of the Agreement, to correct errors, to address omissions or other deficiencies, or to address situations unforeseen when the Withdrawal Agreement was signed, provided that the modifications do not amend the essential elements of the Agreement.

The purpose of the envisaged decision is to address errors which do not amend the essential elements of the Withdrawal Agreement.

The envisaged decision will become binding on the Parties in accordance with Article 166(2) of the Withdrawal Agreement. In accordance with Rule 9 of the Rules of Procedure, decisions adopted by the Joint Committee will specify the date at which they take effect.

3. Position to be adopted on the Union's behalf

Correction of Annex 2 to the Protocol on Ireland/Northern Ireland

The Protocol on Ireland/Northern Ireland has been put in place in order to address the unique circumstances on the island of Ireland in the framework of the withdrawal of the United Kingdom from the Union. It includes provisions for avoiding a hard border between Ireland and Northern Ireland and foresees Northern Ireland’s alignment to a limited set of rules that are related to the Union’s Single Market for goods. Annex 2 to the Protocol contains a list of the provisions of Union law referred to in Article 5 i of the Protocol, which apply in this respect to Northern Ireland. Two acts which oblige manufacturers of new light-duty vehicles to gradually reduce the average specific CO2 emissions of new vehicles registered in the Union have also been listed in this Annex by mistake, even though they do not relate to the placing on the market of goods in the Union.

4. Legal basis

4.1.Procedural legal basis

Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement.’

The decision which the Joint Committee is called upon to adopt constitutes an act having legal effects. The envisaged act will be binding on Parties law in accordance with Article 166(2) of the Agreement.

The envisaged act does not supplement or amend the institutional framework of the Agreement.

Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU.

The sole objective and content of the envisaged act relates to, on one hand, amending the Agreement to address omissions and deficiencies, while not amending the essential elements therein, and, on the other, amending the Agreement in a case specifically foreseen by the latter.

The conclusion of the Agreement was based on Article 50(2) of the Treaty on European Union.

Therefore, and in accordance with the basic principle that an act can be amended only by an act of the same type, the substantive legal basis of the proposed decision is Article 50(2) of the Treaty on European Union.

4.2.Substantive legal basis

The decision on ‘Corrections’ implements the NI Protocol, which was concluded on the basis of Article 50. As the Northern Ireland Protocol is a trade agreement between the EU and the UK in respect of Northern Ireland, the legal basis is also Article 207 TFEU.

Therefore, the substantive legal bases of the proposed decision are Article 50 TEU and Article 207 TFEU.

4.3.Conclusion

The legal basis of the proposed decision should be Article 50 TEU and Article 207 TFEU, in conjunction with Article 218(9) TFEU.

5. Publication of the envisaged act

As the decision of the Joint Committee will amend the Withdrawal Agreement, it is appropriate to publish it in the Official Journal of the European Union after its adoption.