Explanatory Memorandum to COM(2020)833 - EU position in the Joint Committee by Art. 164 of the Agreement on the withdrawal of the UK from the EU as regards Union presence

Please note

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

dossier COM(2020)833 - EU position in the Joint Committee by Art. 164 of the Agreement on the withdrawal of the UK from the EU as regards Union ...
source COM(2020)833 EN
date 27-01-2021


1. Subject matter of the proposal

The Commission proposes that the Council approves 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 concerning the practical working arrangements related to the exercise of the rights referred to I Article 12(2) of the Protocol on Ireland and Northern Ireland to the Withdrawal Agreement (‘the Protocol’).

2. Context of the proposal


Article 12 of the Protocol makes, in its first paragraph, the authorities of the United Kingdom responsible for implementing and applying the provisions of Union law made applicable by the Protocol. According to the second paragraph of Article 12, representatives of the Union have the right to be present during any activities of the authorities 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, and the United Kingdom shall provide, upon request, all relevant information relating to such activities, whereas the United Kingdom is obliged to facilitate such presence of Union representatives, provide them with the information and carry out control measures requested by Union representatives.

The Union presence established by Article 12 of the Protocol is supposed to ensure that the Union can effectively monitor the application and implementation of Union law made applicable in respect of Northern Ireland by authorities of the United Kingdom. Article 12 i of the Protocol states explicitly that Union institutions and bodies, including in particular the European Court of Justice, have the same powers as those conferred upon them by Union law in this regard.

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

Practical working arrangements for the exercise of the rights pursuant to Article 12(2) of the Protocol


In order to render the rights granted by Article 12(2) of the Protocol effective, the practical working arrangements set out in a Joint Committee Decision provide for

–privileges and immunities of Union representatives exercising those rights of the Union; 

–modalities for requesting information

–general electronic access to the United Kingdom’s IT systems relevant for the implementation of the Protocol; and the

–modalities of requesting control measures.

The exercise of the rights pursuant to Article 12(2) is notably not limited to the territory of Northern Ireland, but relates to any activities carried out by United Kingdom authorities in the implementation of the Protocol irrespective of their location.

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 the Parties in accordance with Article 166 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.

4.2. Substantive legal basis

The decision on ‘Union presence’ lays down conditions for implementing the Withdrawal Agreement, which was concluded on the basis of Article 50 TEU. 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 concerns the implementation of substantive provisions of the Protocol, it is appropriate to publish it in the Official Journal of the European Union after its adoption.