EU law specialist Catherine Barnard has reminded us that the EU-UK Trade and Cooperation Agreement allows either party to “suspend obligations” under that treaty in the event of breaches of earlier agreements. For non-lawyers, that means impose trade sanctions for breaches of the withdrawal agreement of 2019, which contains the protocol.
But Prof Steve Peers adds detail to that analysis ... “the TCA is a separate treaty from the withdrawal agreement, which continues to apply between the UK and the EU. The withdrawal agreement has its own rules on dispute settlement. I have used them as a point of comparison for the TCA dispute settlement rules. As we’ll see, there’s a link between the two treaties: a failure to comply with a ruling relating to the withdrawal agreement can lead to retaliation under the TCA.
<<The basic idea is that if the parties have a complaint, they first of all enter into consultations. If the consultations don’t lead to agreement, either side can trigger arbitration. If the arbitrators rule that one side has breached the agreement, in principle that side has to comply with the ruling within a reasonable period. If it doesn’t comply by the deadline, the winning side can invoke *proportionate retaliation* against the losing side by withdrawing benefits under the agreement. If the losing side later complies with the ruling, the winning side has to stop suspending those benefits. If there’s a dispute about whether the losing side has fully complied with the ruling, or whether the retaliation by the winning side was proportionate, or what is a reasonable time to comply with the ruling, the arbitrators can decide that too.>>
We are just at the beginning of all that! We need consultation and arbitration before retaliation. This will all take quite some time, both sides are digging in - got to Save Those Sausages...