Brexit: she who laughs last …

31/01/2021

At a certain stage in most high profile political dramas, the reporting media will start to settle on a "narrative" – usually a simplified version of events, spiced with commentary from the loudest and most prominent voices - which represents the synthesis of journalistic endeavour.

Even though the narrative often goes on to become settled history – the received wisdom which will inform future generations - mostly, anything which purports to be the settled view of the media collective is going to be marred by distortions, exaggerations and inaccuracies, the effect of which is sometimes to completely misrepresent events.

In what has been dubbed "vaccinegate", we certainly seem to be coming to the point where a narrative is emerging. And to populate this, in stories which are so often driven by personality politics, we need the "good guys" - in this case a cast of outraged victims – and a "black hat" villain. By common consent, the latter is the hapless Ursula von der Leyen, EU Commission president.

While the English media will so often rely on generic descriptions for its reportage on EU affairs, most often talking of "Brussels" or the "Commission", or its famously mislabelled "summits", years of Brexit politics has put faces to previously anonymous institutions, putting von der Leyen firmly in the media spotlight.

Thus, although we have an organisation known for the collective anonymity of its decision-making, this time round the media are giving vdL the treatment usually reserved for heads of states and prime ministers, holding her personally responsible for the infelicities in the EU's recent performance.

To that extent, vdL must be wondering what hit her for, in the time-honoured manner of the Commission, what she had done was publish a draft Commission Implementing Regulation setting out the Commission's intentions.

Here, our Ursula is victim of the EU's Byzantine procedures – and its almost total inability to explain itself lucidly to the media corps (should that even be possible) – resulting in journalists opting for the easy hit of pinning the blame on her, rather than taking in what was in fact the opening shot in a staged process.

That this hasn't been picked up is hardly surprising when most hacks would struggle to tell the difference between a Directive and a Regulation, who use "rules and regulations" as a generic to cover both and to whom the term "Commission Implementing Regulation" might as well be written in proto-Dravidian script, for all the meaning it conveys.

The other mistake the Commission made, of course, was that when its draft regulation started drawing Flak, it hurriedly took the copy off its website – allowing the obvious interpretation of an admission of guilt. If it had left the copy there, it could have pointed to the fact that it was a draft and had to surmount an important hurdle before it came into force.

The clue is at the start of recital – not that anyone looks there – which sets out the legal base, directing us to the Treaty on the Functioning of the European Union. Although not specified, that would include Article 291(3) (TFEU) from which, as we all know, is derived Regulation (EU) No 182/2011 of 16 February 2011, "laying down the rules and general principles concerning mechanisms for control by Member States of the Commission's exercise of implementing powers".

Given the importance of the Commission's measure, as a programme "with substantial implications", doubtless the Article 5 "examination procedure" applied. This requires the regulation to be submitted to "a committee composed of representatives of the Member States" for an opinion. And, if the committee delivers a negative opinion, reached by qualified majority voting, "the Commission shall not adopt the draft".

Clearly, as of Friday night, the draft had not been submitted to the committee and had not come into force, evidenced by the fact that it had not been published in the Official Journal. Furthermore, the regulation set the conditions for invoking Article 16 of the Irish Protocol, these were not satisfied, so the Article cannot have been invoked.

The huge uproar which has since followed, therefore, is somewhat misplaced. The ultimate decision as to whether to proceed did not rest with Ursula von der Leyen but, with the member states, which had not then given the green light.

When a revised regulation appeared yesterday, with an OJ publication dated 30 January, the instrument in force – and thereby approved by member states – was without the reference to Article 16 of the Protocol.

While the narrative settles on the blame game and von der Leyen takes the Flak, the member states have an instrument which is otherwise little changed from the original, ready to go into action.

The effect of this will be to impose particular requirements on any EU-based Covid vaccine manufacture which intends to export its products (whether the raw vaccine or the finished vials) to the UK or points beyond, to countries which have not been excluded from the regulation. Largely – and quite evidently – this is directed at exports to the UK, including Northern Ireland.

Firstly, potential exporters must apply to the "competent authority" of the member state in which they are situated, for an "export authorisation", stating the quantity to be exported, the destination and final recipient.

But, in order to get its authorisation, the exporting companies must also provide information on the number of vaccine doses distributed in the Union since 1st December 2020 broken down by Member States as well as information on doses distributed in Northern Ireland "since the entry into force of the Regulation".

By this means – despite the gap in export figures for the UK for January – the EU (which we can take to be the Commission and the member states) aim to smoke out the details of vaccine doses being diverted to the UK.

Then there is the sting in the tail. Without the production of a valid export authorisation, when needed, the exportation of vaccines is prohibited. But this can only be provided by the competent authority "where the volume of exports is not such that it poses a threat to the execution of Union APAs concluded with vaccines manufacturers".

In other words, if the export volumes are so high that they interfere with the ability of firms which have Advanced Purchased Agreements (APA) with the Union to make deliveries to member states, then they can be stopped from exporting to the likes of the UK.

Despite the huge amount of noise, therefore, very little has changed from the original draft of the regulation, and even then the effects on Northern Ireland were grossly overstated. The EU's measures were targeted on the products from a limited number of vaccine providers, applicable only in the event that the UK government tried to circumvent measures to prevent export of EU-produced vaccine to the UK.

That limited and targeted action could hardly be described as imposing a "hard border" on Northern Ireland, unless of course the Arlene Fosters of this world were going out of their way to misrepresent the situation. But that, largely, is what is happening, with the willing assistance of the (largely) English media.

There is a sense, therefore, that vdL has been thrown under a bus which is where she may belong. Spiegel International seems to think so, claiming that the Commission president is seeking to duck responsibility for the EU's "botched vaccine rollout".

Yet, it is the member states who are, to a very real extent, letting the Commission take the Flak for a policy they demonstrably support. And although there is no evidence that this was intentional, it can't hurt to let the Commission draw the fire, keeping most of the national leaders in the background, while accounts with "big pharma" are settled.

Any idea, though, that AstraZeneca or any of the others are going to walk away from this unscathed is perhaps misplaced. An organisation which counts among its scalps Microsoft and Google is not to be under-estimated. While the English press at the moment is baying for blood – egged on by self-serving Northern Irish politicians – it may well be that vdL gets the last laugh.