But another route is being discussed. If Art. 16 is being used as a cover to suspend/rewrite the NIP, the EU might say that the rule of law has been infringed. So what's the significance? 3/8
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So talk this evening about the possibility of the EU terminating the TCA if gov't starts Art. 16 NIP process (see red boxes). This would take a year (9 mths if only trade part terminated). 1/8
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However, remember, triggering Art. 16 itself is not unlawful. The picture becomes much more messy if Art. 16 is used as a cover for suspending/removing Arts 5-7, 10 and 12 NIP. 2/8
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Art 763 TCA deals with breach of 'rule of law' (does this require more than breach of the Treaty for which Dispute Resolution Mechanism under the Withdrawal Agreement is available (see slide)?); assuming Art. 763 is satisfied then... 4/8
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Art. 763 is an 'essential element' (Art.771). This takes us to Art. 772. The process in Art. 772 is engaged only if there is a 'serious and substantial failure to fulfil any of the obligations described as essential elements in Article 771'. 5/8
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This means 'its gravity and nature would have to be of an exceptional sort that threatens peace and security or that has international repercussions'. Does pulling the plug on Arts 5-7, 10 and 12 NIP hit this threshold? If yes ... 6/8
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There's a process - Partnership Council to meet to try to find a solution w/i 30 days (Art 772(2)) 7/8
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Then terminate or suspend (Art 772(2)) BUT our friend proportionality is there in Art 772(3). So, it’s not a straightforward route for the EU to suspend the Treaty. 8/8
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