Legal expert opinion identifies level-playing field enforcement gap

150 150 Almut Bonhage

A legal opinion commissioned by the Greens in the German Bundestag has found that the Withdrawal Agreement (WA) is not effective in enforcing the non-regression in the level of environmental protection, labour and social standards, set out in the Protocol on Ireland and Northern Ireland – the so-called backstop of the draft WA.

The backstop in regard to environment, excludes the non-regression provisions from the scope the WA’s enforcement mechanism (the dispute settlement mechanism including the binding decisions of the arbitration panel). Only the minimum requirements for the monitoring and enforcement related to environmental protection, which are the set-up of an “independent body” and the availability of judicial proceedings for members of the public and administrations, are covered by the WA’s enforcement mechanism. The opinion written by Dr. René Repasi from the Erasmus University Rotterdam, therefore argues that regressing from the common environmental protection level on its own cannot be challenged. What matters is whether the procedures are effective in sanctioning the regression. This means that only if an environmental regression takes place over a long time which the party’s own enforcement system fails to remedy, would a call to the WA’s arbitration panel stand a chance.

Dr. Emily Lydgate, lecturer at the University of Sussex, finds the approach innovative in establishing a middle way between total alignment, like under the EEA Agreement, and much more distant trade agreement, like the ones with Canada and Korea.

A further weakness identified by Dr. Repasi’s opinion in ensuring a level-playing field is the general nature of the non-regression provisions. A list of regulations do feature in the WA, but these are applicable only to Northern Ireland and not to the UK.

The opinion concludes that the level-playing field should be rendered as clear as possible in legal terms. This would entail the environmental areas mentioned in the WA, such as industrial emissions, nature, chemicals and climate, being reflected by a list of legislation and standards, and their enforcement not being excluded from the scope the arbitration procedure.

Dr. Emily Lydgate (2018). Environmental non-regression in the Withdrawal Agreement: forcing the EU’s hand on the Level Playing Field

Dr. René Repasi (2019). Durchsetzung der materiellen Vorgaben des „Level-Playing Fields“ im „Backstop“ des Entwurfs für ein Abkommen über den Austritt des Vereinigten Königreichs Großbritannien und Nordirland aus der Europäischen Union in den Bereichen des Umwelt- sowie Arbeits- und Sozialschutzes. Expert opinion commissioned by the Greens in the Bundestag, Dr Franziska Brantner, MdB.

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