The two key issues that have affected the UK-EU relationship since the beginning of the year ‒ trade and the AstraZeneca coronavirus vaccine fiasco ‒ are, of course, intimately linked. They are both related to the EU’s ‒ and, particularly, the European Commission (EC)’s ‒ imperial view of itself.
This has manifested itself in two key ways. First, there is the abiding bitterness at the UK’s audacious decision to escape the EU’s colonial stranglehold. This has turned into vindictiveness when it comes to how the EU has implemented the TCA (Trade and Cooperation Agreement). Second, the EC, locked away in its imperial palace, the Berlaymont, has constructed a worldview for itself so divorced from reality that it believed that it could take all the time it wanted to negotiate contracts for the vaccine and then as much time as it took to have these vaccines approved on the basis of its famous ‘precautionary principle’ (i.e., very, very slowly). But, like all emperors throughout history ‒ it then demanded that these vaccines be delivered immediately – without any understanding of production processes and whatever else was happening in the real world.
The EU is illegally blocking our trade
Let’s begin with trade. The main reason for trading is to make your citizens better off, by offering them wider choice of goods and services. But this is not the EU’s view at all. For the EU, trade is a weapon that will be used to control what other countries do. It is a political gift of the EU which can be granted and taken away – or at least made more difficult – if these countries do not act like an obedient lapdog.
And this is precisely how the EU has behaved since the beginning of the year when the TCA came into effect, as these headlines show:
- UK lorry drivers’ ham sandwiches confiscated at the Dutch border.
- Tonnes of meat rotting at the border due to Brexit red tape.
- Scottish seafood exporters say their shipments to the EU are being held up by red tape in both Scotland and France.
- Chemical companies, facing costly new regulations and extra tariffs.
- Amazon prepares to stop selling some products to Northern Ireland due to issues with the Irish Sea Border.
- British sausages in Northern Irish supermarkets are under threat after the EU ruled out demands for the ‘free flow’ of GB meat exports to the country after Brexit.
- Businesses should brace for ‘significant border disruption’ as France orders ports crackdown on lorries arriving from Britain with incorrect paperwork.
- Half of trucks ‘carrying only fresh air’ as Brexit and Covid hit exports ‒ British exporters unable or unwilling to risk border crossing red tape mean hauliers cannot load up for return journeys.
- Brexit deal IGNORED by European officials – UK nationals confronted at EU borders. European Union border guards are targeting Britons living in the bloc with passport stamps ‒ a move that is in breach of the Brexit Withdrawal Agreement.
- London banks need to shift more staff in wake of Brexit, warns EU.
These headlines demonstrate five things about the EU. First, the clear pettiness and spitefulness. Second, the EU is very deliberately making life difficult for UK companies in order to try and force them to move at least part of their businesses to the EU. Third, the EU is quite happy to block EU citizens from getting the goods and services they want to buy from us, as well as making life difficult for British citizens entering the EU.
Fourth, the EU is seeking to exercise control over the activities of the UK government by ramping up difficulties at the border any time the UK attempts to chart its own course post-Brexit. One concern the EU has is over any plan to turn the UK into a super competitive Singapore-on-Thames. Another relates to state aid. The EU has published a notice which rejects the UK government’s interpretation of when state aid law will apply under the Northern Ireland Protocol.
One senior EU diplomat is quoted as saying: ‘If I read about Singapore-on-the-Thames and increasing the working week beyond 48 hours to something like in the 50s … I don’t really think that is a good sign to have discussions on all the outstanding issues – and also the ones in Ireland’. Another EU official said: ‘People now need to adapt to changes. The only way to avoid controls is to source things through the EU from now on’.
Fifth, the EU is quite happy to break international law when it suits, but is strongly opposed to others doing it – as illustrated by the furore over the Northern Ireland Secretary’s (unwise and unnecessary) statement that the Internal Markets Bill – designed to protect the integrity of the UK’s internal market in the way that the EU is determined to protect its own internal market – broke international law by amending the Withdrawal Agreement in a ‘specific and limited way’.
There are many examples of the EU breaking international law as these headlines make clear:
- The EU ignores international law and breaks treaties. The EU ignored WTO (World Trade Organisation) rulings on GMO crops, hormone beef, and Airbus subsidies, with the European Court of Justice (ECJ) deciding that the EU does not have to obey international law if it conflicts with the EU’s internal structures.
- Legal experts: EU data proposals break international law. Requirements to keep data in Europe would likely violate WTO rules, trade lawyers say.
- EU is the one breaking international law. As Will Podmore writes: ‘The EU is now threatening to block the movement of goods from Great Britain to Northern Ireland by imposing EU tariffs on all such goods. It has even threatened to stop the transport of food products from Great Britain to Northern Ireland. Any such tariffs or blocks would divide the UK, which would clearly change the constitutional status of Northern Ireland. This would breach the key principle of the Good Friday Agreement, that there can be no change to the constitutional status of Northern Ireland without the consent of the people of Northern Ireland. The Good Friday Agreement is an international treaty. So, the EU ‒ not the UK government ‒ is in breach of international law’.
The first bullet above is especially relevant for the EU’s implementation of the TCA. The WTO prohibits the use of regulations that are ‘not reasonably necessary’ to the attainment of a legitimate health objective, implying that they are really restraints on trade. The EU has responded by setting out the ‘essential requirements’ that products must meet in respect of health, safety, environmental and consumer protection. A product that conforms to the resulting standards is presumed to meet the essential requirements and is entitled to be marketed freely within the EU. Yet we have provided numerous examples above where the EU has decided that food imports which were acceptable when the UK was a member state (i.e., until 31 December 2021) are now too dangerous to import without onerous checks or further preparation. Since the products have not changed, the EU is using the political status of the UK rather than the nature of the product as a criterion for restraining trade. This behaviour is illegal.
In short, these are not the actions one expects from a ‘friend and ally’ as the Boris Johnson likes to call the EU. On the contrary, all this amounts to permanent guerrilla warfare by the EU on UK trade. By contrast, there have been no complaints from EU companies importing into the UK because we have taken the appropriate view that imports benefit our citizens. And this is despite the fact that the EU sells £100bn more in goods to us than we sell to them.
The EU’s vaccine fiasco
But nothing has exposed the true face of the EU than its handling of the AstraZeneca Covid vaccine case. This is a vaccine developed at Oxford University with funding from British taxpayers ‒ with no guarantee that the investment would pay off. The UK government then arranged for the vaccine to be produced by the British-Swedish AstraZeneca (AZ) company and it helped the company set up two production plants in the UK and two on the continent. The UK government then signed a deal in June 2020 for delivery of the vaccine, long before it had been approved by the UK’s health regulators. AZ agreed to supply its vaccines globally at cost price once it has the manufacturing capacity.
On 8 December 2020, Margaret Keenan became the first person in the world to receive a Covid vaccine ‒ it happened to be the Pfizer/BioNTech vaccine ‒ at Coventry’s University Hospital. On 10 January 2021, Brian Pinker became the first person in the world to receive the AZ vaccine at Oxford’s Churchill Hospital.
You have to agree that this is by far the best thing that our government ‒ and indeed our country ‒ has done in a very long time. And all credit goes to those in government ‒ such as Alok Sharma, the Business Secretary ‒ who decided not to join the EU’s procurement effort, to the anger of many politicians and scientists: ‘This government’s stubborn unwillingness to work with the European Union through the current crisis is unforgivable’.
The EU, by contrast, has done nothing but dither. It insisted that it negotiates all vaccine deals on behalf of all member states. It used trade negotiators to do this, not experts in vaccine design, manufacturing and distribution. Their main concerns were to drive down the price that the EU paid for the vaccine and that the companies producing the vaccine accepted ‘liability and indemnification’. The EU did not sign a deal with AZ until 27 August, three months after the UK signed a deal: it ordered 300 million doses at a cost of €336 million, with an option for a further 100 million doses. It did not approve the AZ vaccine until 29 January 2021. Even then, Germany and Emmanuel Macron in France have dismissed it as being ‘quasi-ineffective’ on older people.
But driving down the price and being sniffy about the vaccine’s efficacy is not much use if you can’t get hold of it for love or money. And this is what happened. The EU had planned to vaccinate 70% of its adult population by the summer. But the late order meant that the EU will get only about a quarter of the 100 million vaccines it was expecting to receive by March. The main reason for this is that AZ is still delivering the UK contract of 100 million doses at its two UK plants. The firm’s CEO, Pascal Soriot, has said that ‘With the UK, we have had an extra three months to fix all the glitches we experienced’ and also that the AZ contract with the EU was on a ‘reasonable best effort’ basis to provide vaccines, without compelling the company to stick to a specific timetable, whereas the UK contract committed it to delivering vaccines to the UK first: ‘As you could imagine, the UK government said the supply coming out of the UK supply chain would go to the UK first. The contract with the UK was signed first and the UK, of course, said ‘you supply us first,’ and this is fair enough. This vaccine was developed with the UK government, Oxford and with us as well’. AZ said it would produce the EU vaccine at its two new plants on the continent, but these have faced teething problems – as did the two UK plants when they were set up.
However, the EU doesn’t accept this at all. It is demanding that millions of British-made AZ vaccines are diverted from the UK to the EU to fulfil its contract with the EU. Stella Kyriakides, the EU’s health Commissioner, said: ‘We reject the logic of first come, first served. That might work at the neighbourhood butchers but not on our contracts and not in our advanced purchase agreements. …AstraZeneca was contractually obligated to use UK factories to supply Brussels. It has contractual, societal and moral obligations to use all its facilities to make up the shortfall, and that there was no hierarchy of factories’. This view is reinforced by Commission President, Ursula von der Leyen, who insisted that ‘the contract is crystal clear’ and that the AZ vaccine must be delivered on time. This is supported by MEPs such as Véronique Trillet-Lenoir who says ‘We must make sure AstraZeneca isn’t giving preference to the highest bidder, and more specifically the UK, which is paying more for its vaccines than the EU’. She seems to have forgotten that the UK invested seven times as much public money per capita as the EU to find an effective vaccine.
What is the legal position? Barrister Steven Barret argues that the EU does not understand contract law and says the contract supports the claims Soriot has made: ‘Firstly, contractors undertake to use their “reasonable best efforts” to manufacture enough supply; …the second point is that in order to complain in contract law, you must have suffered a breach’. These he believes will be two massive hurdles to any EU legal challenge. However, Richard Parkinson, a commercial contracts lawyer, interprets the contract as requiring AstraZeneca to supply the 300 million doses from all its manufacturing plants, including those in the UK: ‘There doesn’t appear to be anything in the contract stating that the UK’s orders take priority. Even if the UK contract does say that it should be given priority, this doesn’t affect the EU’s position – though it may give the UK another ground to bring a claim against AstraZeneca. Therefore, AstraZeneca appears to be in a position whereby it has two customers who each seemingly have a valid claim on the doses that have been manufactured’.
Kryiakides has insisted that the UK should have ‘no priority’ access to doses of vaccines produced at the UK plants and has instructed lawyers to examine legal means to force AZ to send UK-made vaccines to the EU. While the contract is written under Belgian law, the EU’s lawyers are considering launching a challenge at the ECJ.
Now this could change everything. This is because EU law is based on the ‘purposive’ principle. This means, in this case, that the ‘purpose’ of the contract can overrule the precise wording of the contract. EU law also has ‘direct effect’, i.e., can overturn the domestic law of any member state. This means that no contract written under the law of any member state can have any certainty of interpretation if the EU decides it does not like the contract terms.
European Council President, Charles Michel, has gone further and said the EU ‘should consider’ blocking exports of the Pfizer/BioNTech vaccine to the UK if it does not receive enough vaccine doses from AZ soon. The Pfizer/BioNTech vaccine is made in Belgium and the UK has ordered 40 million doses. The Commission instructed the Belgian health authorities to raid AZ’s Seneffe plant in Wallonia to ensure vaccines produced there had not been shipped to the UK. It also looked for documents revealing the formula for the vaccine. On 29 January, the Commission introduced an authorisation system for exporting all vaccines to certain countries, including the UK. Switzerland, countries in the western Balkans, Norway, North Africa, Lebanon and Israel were exempted. The move to impose export controls was condemned by the World Health Organisation (WHO) which said that such ‘vaccine nationalism’ could lead to a ‘protracted recovery’. The EU brushed aside the WHO’s concerns.
Even more extraordinary, also on 29 January, von der Leyen, without consulting anyone outside the Commission, threatened to trigger Article 16 of the Northern Ireland Protocol in order to prevent supplies of vaccines made in the EU from entering the UK via Northern Ireland. Article 16 allows the EU or UK to unilaterally suspend any aspects of the Protocol that they consider are causing serious ‘economic, societal or environmental difficulties’.
The Commission had identified Pfizer’s plant at Grange Castle, near Dublin, as a site where vaccine supplies could be stored before being shipped to the UK. However, this effectively created a border on the island of Ireland between NI and the Republic, something the Protocol had specifically been designed to avoid in order to support the Good Friday Agreement which established peace in NI after the Troubles. The move was immediately condemned by the UK and Irish governments and by all the political parties in NI. Arlene Foster, NI’s First Minister, called the move an ‘incredible act of hostility’.
The extent of the opposition to this EU threat was such that it was withdrawn within 4 hours, although subject to the proviso: ‘Should transits of vaccines and active substances toward third countries be abused to circumvent the effects of the authorisation system, the EU will consider using all the instruments at its disposal’.
However, the damage had been done. First, it revealed von der Leyen’s ‘increasingly vindictive’ attitude ‒ to use the words of one of her own staff members ‒ towards the UK government, motivated by her hatred of Brexit. This view makes von der Leyen little more than the fragrant face of Martin Selmayr, the former Secretary-General of the European Commission, who hates Britain and who famously said that losing NI was the price the UK would have to pay for Brexit.
Second, it revealed the extraordinary hypocrisy of the EU when it comes to peace in NI. Preserving peace in NI was supposed to be the EU’s primary concern in securing a Brexit deal, but as Brexiteers knew all along, the NI Protocol’s real purpose was to exert control over the UK government after Brexit. Within 29 days of fully departing from the EU, this purpose was fully revealed to the whole world. Even Katya Adler, the BBC’s pro-EU Europe Editor, felt compelled to say: ‘There was an absolute sense of incredulity that the Commission had suggested invoking Article 16, basically suspending parts of the Brexit deal to do with Northern Ireland. It was so painfully put together between negotiators on both sides during the Brexit deal. In the past, the EU has lectured the UK Government about how you have to respect every letter of that Protocol’.
The Daily Telegraph exposed the real reason for the threat. One EU official revealed that ‘Mrs von der Leyen was determined that the member states would not point the finger of blame for the delays at her Commission and so the decision was made to launch a full frontal, and unprecedented, attack on AstraZeneca’. Another diplomat said: ‘She needs to go. Now. She told f—— no one, after four years of tedious skullduggery over the backstop. Surely the Commission could have thought of the optics? [The Commission] ‘is quite successfully undermining its own credibility on the rule of law. Do they really think this will improve their credibility as a contract negotiator? It’s not like you couldn’t see this coming… Was there no one to protect her from going here? Everyone has just gone stark raving mad’.
What is extraordinary in all this is that the EU has failed to recognise its own monumental incompetence. As Ambrose Evans-Pritchard has pointed out: ‘EuroIntelligence said the EU conducted vaccine talks in the same spirit that it conducted Brexit talks. “It tried to lock in a perceived short-term price advantage at the expense of everything else,” it said. Speed is everything in a pandemic. The Commission could not see the wood for the trees’.
Stephane Bancel, the CEO of Moderna which is producing a rival vaccine to AZ, said that the EU had also been dragging its feet when it came to ordering his vaccine. He had been in talks with the EU to buy 80 million doses last summer, but no contract was signed at the time. By contrast, the US reserved 100 million doses in August and negotiations with Canada were completed after just two weeks. He warned the French media organisation AFP in November that ‘It is clear that with a delay, this is not going to limit the total amount, but it is going to slow down delivery. But I will not be able to send products to countries that have not placed orders. The longer they wait, the longer it will take.’
Moderna, a US company, has also announced that it has delayed deliveries to the EU as a result of its obligations on previously agreed contracts. The Belgian-based Pfizer company failed to supply the 12.5 million vaccines it promised the EU by the end of 2020, since it needed to increase capacity at the production plant. The German company CureVac – which received £70 million in financial support from the EU to develop a vaccine in March 2020 ‒ has still not produced an effective vaccine and ‘is unlikely to apply for regulatory approval until the middle of ’. The French company Sanofi’s vaccine will be delayed until the end of  after trials revealed it failed to produce a strong immune response in older people. Yet none of these companies has received the public opprobrium that British-Swedish AZ has. More rank hypocrisy from the EU.
The UK must respond robustly
How should the UK deal with these trade and vaccine issues? The UK government says it wants to ‘reset’ our relationship with the EU. But it needs to take into account that it is dealing with a bully, not a ‘friend and ally’. And the best way of doing that is to refuse to put up with any further attempts at bullying from the EU. It should do this first in private and then in public if necessary. We all know that bullies do not like to be exposed in public. And its strategy needs to be credible.
The government must therefore immediately do the following.
First, it must inform the EU that if there are any more petty attempts to interfere with goods trade flows, it will invoke the dispute mechanism of the TCA, since, as we have show above, excessive border inspections are illegal under international (WTO) law. The UK already has a strong case to take the EU through the WTO dispute mechanism, since it has been dumping its goods on the UK ever since the euro was introduced and it has been able to do so because the euro is a structurally undervalued currency on account of its artificial construction. The euro is undervalued against sterling on a purchasing power parity (PPP) basis by between 15.2% and 20%. As a consequence, the EU has had a huge baked-in trade surplus with the UK ever since 1999. Had the euro been correctly valued, then EU exports to the UK in 2018 would have been lower by between £67.2bn and £88.4bn. The UK would therefore be entitled to impose an annual anti-dumping duty on the EU in the range £67.2bn – £88.4bn.
Second, the government must make a much better case for supporting our service exporters. The TCA has locked in the EU’s £100bn goods trade surplus, but does nothing to protect the UK’s £20bn surplus in services. It is clear that the EU is doing its best to damage this trade, especially in financial services, our greatest service export. It is also trying to force service firms and workers to relocate to the continent. The government must make a stronger case for service trade being conducted between the UK and EU on the basis of the mutual recognition of each other’s regulatory framework. So far the EU has refused this. It must also support the use of international law protections when services are provided to EU clients from the UK. These include ‘reverse solicitation exemptions’ and ‘overseas persons exemptions’ which enable financial institutions, for example, to provide certain cross-border services to a wholesale client without being registered or authorised in that client’s member state, so long as the services are provided on the initiative of the client.
Third, in terms of the NI Protocol, Arlene Foster is right when she says it is ‘unworkable’ and needs to be replaced. It is severely damaging trade between Great Britain and Northern Ireland. She has urged the Prime Minister to use Article 16 of the Protocol to take immediate action to address trade flow problems between GB and NI, especially in respect of importing food products from Great Britain. She said ‘There is great unrest and great tension within the community here in Northern Ireland so this Protocol that was meant to bring about peace and harmony in Northern Ireland is doing quite the reverse. The Protocol is unworkable, let’s be very clear about that, and we need to see it replaced because otherwise there is going to be real difficulties here in Northern Ireland’.
An early example of this is and ‘upsurge in sinister and menacing behaviour’ against customs officials checking lorries entering Belfast and Larne ports carrying food products, such as meat, milk and fish, from Great Britain. Michael Gove, on behalf of the UK government, said: ‘Trust has been eroded, damage has been done and urgent action is therefore needed. Peace, progress and strong community relations in Northern Ireland have been hard won and in recent days we’ve seen an increase in community tension, and, as was reported last night, port staff in Belfast and Larne have been kept away from work following concerns for their safety. Everyone must work calmly to fix problems on the ground’.
Boris Johnson condemned the EU for triggering Article 16 to stop vaccine exports, accusing Brussels of having ‘undermined’ the Northern Ireland Protocol. Let’s hope he uses this opportunity to demand that the Protocol is replaced. As the Democratic Unionist Party has pointed out the EU has ‘lowered the threshold’ for triggering Article 16 and demonstrated ‘that the Protocol can be changed and either party to it can make immediate changes without prior consultation’.  We should remember that it is only there because the EU refuses to allow smart border technology to manage the control of goods crossing the border between NI and the Republic – which a report commissioned by the European Parliament no less argues is perfectly feasible. The government should seek a firm date for implementing this technology.
Fourth, in terms of the vaccine, the government should help our ‘friends and allies’ once we have all been vaccinated and returned to work. We should ensure that the AZ delivers its vaccine contract with the EU. I would be happy to spend our entire annual foreign aid budget on helping to get the rest of the world get vaccinated as soon as possible.
Fifth, the government needs to conduct an urgent review of our security in critical areas, such as vaccine supply, food, and energy. The EU has already threatened to cut off food and energy supplies to the UK. And think of the consequences if the AZ vaccines had been produced only in EU factories. The EU would clearly have blocked their transit to the UK, completely ignoring the contract AZ had. We can no longer trust any company based in the EU to fulfil its contracts ‒ even if they have every intention of doing so. We have seen that the EU can now block the export of any good or service on a whim.
But this will not be enough. The emperor has no clothes and this has just been revealed for the whole world to see. The EU is a nasty, incompetent, unaccountable, anti-democratic, anti-competitive protection racket that is destroying Europe. In a normal functioning state, von der Leyen would be fired for incompetence – but von der Leyen and the European Commission cannot in effect be fired. She has not even apologised. Instead, she insists that the handling of vaccine procurement had been a great success, while Selmayr tweets that the jabs were proceeding marvellously: the EU had vaulted ahead of Africa. This cavalier response is a predictable consequence of the Commission having no democratic accountability.
A study by Oxford Economics predicts that the slow pace of vaccination will push the EU towards a second economic slump in 2021, as governments are forced to maintain restrictions on commercial activities for longer. The EU negotiators were clearly very proud of the fact that their AZ deal delivered vaccines at just €1.12 per shot. However, the Munich-based ifo Institute has estimated that the benefit to the economy of each shot is €1,500. So the cost to the economy from delaying the vaccine is more than 1,000 times more than the benefits gained from driving down the price.
The vaccine fiasco is all you need to confirm that Brexit was the right decision. This single incident has proved everything Brexiteers have been saying about the EU for the last 50 years. But it is not just the right decision for the UK, it is also the right decision for all other member states of the EU. What the fiasco has shown is the importance of the nation state and how only the nation state has the nimbleness and agility to deal with crises such as this. The European Commission spent months trying to get 27 member states to agree on a strategy for supplying the vaccine, with Germany and France both jockeying to get their own vaccines ‒ from CureVac and Sanofi ‒ adopted by the whole EU.
The European Commission is deliberately fomenting distrust between friends and allies in order to grab ever more power and control over the citizens of Europe. It is clear from the above that Europe is in deep trouble unless it returns to being a family of free democratic nation states that can fully cooperate with each other on the basis of trust and mutual respect.
Professor David Blake, City University of London
If you want to understand origins of the European Union why it has developed in the way it has, you should read ‘Striking Similarities: The Origins of the European Economic Community’ (http://www.scholink.org/ojs/index.php/ape/article/view/3581/3613)
 Reported in Global Vision UK: Daily Brief, 21 January 2021
 https://www.bbc.co.uk/news/uk-politics-54073836. This statement was unnecessary because the government could have legally used Article 16 of the NI Protocol for this purpose; https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/840230/Revised_Protocol_to_the_Withdrawal_Agreement.pdf
 See, e.g., Alan O. Sykes (1999) Regulatory Protectionism and the Law of International Trade, The University of Chicago Law Review, 66(1), 1-46; https://chicagounbound.uchicago.edu/uclrev/vol66/iss1/1/
 This was a smart move by the UK government, because Oxford had initially wants d to in link with Merck
 https://www.researchprofessionalnews.com/rr-news-europe-innovation-2021-1-astrazeneca-boss-says-faster-uk-vaccines-due-to-contract-terms/; https://edition.cnn.com/world/live-news/coronavirus-pandemic-vaccine-updates-01-27-21/h_c62b9e85950bed3a685a3cb2cc88ef25; https://ec.europa.eu/commission/presscorner/detail/en/ip_21_302
 Global Vision, 28 January 2021
 https://www.politico.eu/article/europe-coronavirus-vaccine-struggle-pfizer-biontech-astrazeneca/; https://www.politico.eu/article/france-puts-down-vaccine-favouritism-allegations/