Thread by @AntonSpisak

Article 16 of NI Protocol is unique. It is unusual to have a general "safeguard" provision like this - a provision which allows either side to unilaterally suspend parts of a treaty without a dispute.

Here's a bit of niche EU legal history to ask where A16 comes from. A thread:

https://twitter.com/tconnellyRTE/status/1413489362013130753

This provision is actually taken directly from the 1992 EEA Agreement. Look at the text of A112 of the EEA Agmt and you'll see that it is identical to A16 of the Protocol.

Surprising? Not really. In essence, both are about EU law and conditions under which it can be disapplied.

Its function in the EEA Agmt is to provide a de-facto "emergency break" on the application of single market rules in the event of exceptional circumstances. Originally, it was included to give EEA states some extra time to transpose relevant EU laws into their legal orders.

However, because the threshold for triggering A112 is very high and because the procedural requirements for doing so are not at all easy to overcome, this provision has rarely been used. In fact, I believe, only twice in nearly 30 years of the functioning of the EEA Agreement.

First, it was in 1995 when Liechtenstein tried to restrict the inflow of EU migrants and argued that the principle of free movement of people should be disapplied due to the country's tiny size.

EU countries agreed to Liechtenstein’s request, but only on a temporary basis. It ultimately led to a new migration arrangement with the EU, agreed in 1999. This introduced migration controls but also reaffirmed that the principle of free movement applies to Liechtenstein.

The second time was in 2008 when Iceland tried to use this clause during the banking crisis to introduce capital controls. But its use was contentious; it was seen to be at odds with EU treaty provisions aimed at protecting the free movement of capital within the single market.

Guess which member state objected to Iceland using this provision? Yup, the UK. Mainly because the UK was one of the most exposed member states to Iceland's measures. This ultimately led to a significant and well-known dispute between the UK (and the Netherlands) and Iceland.

What does this bit of niche EU history tell us?

1. While A16 is unique, it is clear what were its objectives and motives behind the EU including it in the EEA Agmt (and the Protocol): to offer an option of last resort, but not something to be used to legitimise non-compliance.

2. It is actually very hard to use this provision in practice. Not only is the threshold for using it very high, but there are also tricky procedural hoops to jump through before being able to use it. You need a solid case before triggering it; otherwise it only damages trust.

3. Finally, a bit of irony: the EU included this provision in both the EEA Agmt and the NI Protocol essentially as a way of protecting the single market. Now the UK might try to use the same provision to legitimise measures seen by the EU as damaging the single market.

That's my bit of niche EU legal history for a Friday afternoon! Have a lovely weekend all.