Outside observers were left stunned as the EU's attempt to fix one crisis – the control of Covid-19 vaccines – last week created another, namely an eruption of fresh political tensions over Brexit.
Friday's move has caused astonishment because, after years of wrangling over how to keep the Border open after the UK left the EU, Brussels bureaucrats missed the politically charged significance of potentially triggering a part of the Brexit treaty that could create a hard border in Ireland in an attempt to control vaccines within the bloc.
Brussels had, under the draft rules, proposed using article 16 of the Northern Ireland protocol – an emergency provision that allows the UK or the EU to unilaterally suspend parts of the Brexit treaty – to prevent vaccines being siphoned out of the EU into the UK and elsewhere.
Article 16 is regarded as the "nuclear option", intended only to be used in the face of "serious" problems between the EU and the UK. Yet here was the European Commission wielding this power in the vaccine war between the EU and pharma giant AstraZeneca over delayed supplies.
In practice it could have led to a hard vaccine border having to be policed within Ireland.
“I am afraid that the political reality of the paragraph wasn’t fully understood,” Ireland’s EU Commissioner, Mairéad McGuinness, said diplomatically of the blunder.
Political firestorm
The focus of the EU’s action – proposed and rescinded within hours due to the political firestorm it set off – was intended to create a surveillance system for vaccine exports. The unintended consequence was fresh Brexit tensions due to a failure to spot the “political dynamite” – as one source put it – that was the use of article 16.
The error has been laid at the door of commission president Ursula von der Leyen and her officials, who failed to spot the problem in advance as they faced mounting criticism over the EU’s handling of vaccine shortages.
The mistake is attributed by some to the intense pressure they are under from member states clamouring for vaccines during a surge in infections.
“I would say what happened is that there was a rush to get this regulation out, and I’m afraid that sometimes when things get rushed, the detail is not fully taken on board,” said McGuinness, who along with Taoiseach Micheál Martin said they were not informed of the move in advance.
One source suggested that the panic within the EU to find a remedy to this crisis may have led to a commission lawyer or official spotting a potential backdoor for vaccines out of the EU through Northern Ireland and seeking to close it by using part of the protocol without consulting other officials about whether it was appropriate.
One Brussels insider blamed a “lightweight” political commission that is “very technocrat-oriented” for not spotting a glaringly obvious issue that has dominated the Brexit debate for years.
"Two weeks ago Boris Johnson mentioned using article 16 for Northern Ireland trade in Westminster and that caused a little nuanced concern around Brussels, and then the commission jumps into this with two big feet themselves," said the source.
Barnier in the dark
Normally, the commission seeks feedback from officials across the executive arm on proposals in a process known as "inter-service consultation" and can seek a "fast-track" check. The commission short-circuited this process due to pressure over vaccines, and not even the EU's chief Brexit negotiator Michel Barnier appears to have been consulted.
“The commission has quite sophisticated procedures for the preparation and adopting of documents,” said David O’Sullivan, who was secretary general of the commission from 2000 to 2005.
“They are frequently criticised for being over-bureaucratic and ponderous but they do serve a purpose of trying to make sure that documents have been looked at from all angles before they are finalised. On this occasion, the need for speed and the pressure to act urgently clearly meant that those systems couldn’t work in the way they should.”
