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Brussels has rejected British demands to negotiate a “new protocol” for post-Brexit trade with Northern Ireland and insisted on improving the current model instead.
In unveiling what it called a “meaningful and substantial” package of solutions, the European Commission on Wednesday proposed four papers to tackle disruption in trade between Great Britain and Northern Ireland. These trade flows are governed by the Northern Ireland protocol that Brussels and London agreed as part of the Brexit Withdrawal Agreement in 2019.
“We are not presenting these proposals to the U.K. government as a take-it-or-leave-it package. We want them to feed into our discussions over the coming weeks,” an EU official told reporters ahead of the publication of the plans.
However, the EU official stressed that there could be no renegotiation of the Northern Ireland protocol, as Britain’s Brexit Minister David Frost demanded Tuesday.
“We think that renegotiating the protocol would create uncertainty and that’s the opposite of what we need,” the official said. “There’s a reason why negotiations on the protocol lasted three and a half years because these are difficult issues. And we think that we reached the only workable solution.”
Here’s everything you need to know about the EU’s proposed solutions.
The Commission’s package aims to ease the movement of goods from Great Britain to Northern Ireland by cutting down paperwork and costs for traders while introducing more structural safeguards and stronger surveillance.
Under the EU plan, companies shipping goods from England, Wales or Scotland into Northern Ireland would only need to fill-in half of the customs paperwork they are currently asked for. The reduction in red tape would be achieved by broadening the list of goods the EU thinks will stay in Northern Ireland and which are not at risk of secretly circulating into the rest of the EU single market via the border with the Republic of Ireland.
For all those goods not at risk, no customs duty would have to be paid and much less paperwork would be required, a move the EU believes would particularly benefit small and medium-sized enterprises. There is also room to add manufacturers with a higher turnover than those already covered by the scheme.
For example, a car dealer in Northern Ireland that buys parts from Great Britain would only need to provide basic information such as the invoice value of the order rather than going through the full set of custom procedures.
However, the EU also wants to introduce “structural safeguards” such as review clauses or “snapback clauses in case we see that there’s a problem and that the level of checks should be increased,” the EU official said.
Brussels also insists on the need for the U.K. to grant EU officials access to its live databases tracking the movement of goods, and to build border control posts at Northern Irish ports. The U.K. committed to both of these conditions under the current protocol, but it is yet to deliver on them, the EU official said.
Britain has argued that the current level of customs checks envisaged by the protocol create a wedge between Northern Ireland and the rest of the country, and disrupt trade flows.
Imports of food into Northern Ireland
The Commission has proposed a significant cut to food safety checks, the so-called sanitary and phytosanitary (SPS) controls, through facilitation.
“Approximately 80 percent” of food for retail entering Northern Ireland from Great Britain would benefit from such facilitated checks, including iconic products such as sausages, the EU official said.
This means a truck transporting a hundred different food products — such as dairy, meat, fish, fruits and vegetables — from Britain to Northern Ireland would need just one SPS certificate instead of one hundred. Additional certificates would only be required for “very specific goods” of high sensitivity, the EU official said.
Just as with customs, the facilitation means that there would have to be more guarantees in terms of governance and more market surveillance.
Jointly, the two proposals on customs duties and food safety checks would “create a type of express lane that would vastly facilitate the movement of goods from Great Britain to Northern Ireland,” the EU official said.
The U.K. says applying the SPS checks as originally set out in the protocol exacerbates shortages of fresh food in Northern Ireland’s supermarkets, because some suppliers may decide it’s not worthwhile to continue selling to the region.
The Commission confirmed it would modify EU law to allow Great Britain to continue acting as a hub for the supply of generic medicines to Northern Ireland — not possible under the current protocol.
The proposal would remove the need for drug manufacturers based in Great Britain to relocate infrastructure to Northern Ireland. This had raised concerns over the last year that drug companies would face huge costs in order to keep supplying to Northern Ireland, making it likely they would decide it wasn’t worth continuing.
Brussels aims to conclude the legislative changes to enable this adjustment by the end of the year, when a grace period allowing medicines to flow between Great Britain and Northern Ireland is due to end. But a Commission official left open the possibility of extending the grace period if more time is needed for the passage of legislation.
However, this is likely to fall short of Britain’s demands. The U.K. has previously argued that EU proposals don’t satisfactorily deal with certain medicines, such as new cancer drugs, which must be licensed by the European Medicines Agency before they can be sold in Northern Ireland. Instead, London has proposed removing all medicines from the scope of the protocol.
Northern Ireland’s participation
The EU proposed increased participation by Northern Irish institutions in the committees tasked with overseeing the implementation of the Brexit deals in order to make the rules “more transparent” for them, the EU official said.
The Commission suggested a “stronger link” between the Northern Ireland Assembly and the EU-U.K. Parliamentary Assembly, which is being set up to monitor how the EU-U.K. Trade and Cooperation agreement works in practise.
Brussels is also in favor of a more structured dialogue with communities in Northern Ireland, and supports allowing the region’s political leaders to participate in a number of EU-U.K. Specialized Committees, beyond the overarching body overseeing the Withdrawal Agreement and protocol.
This comes on top of the protocol’s consent mechanism, which gives the Northern Ireland Assembly a vote every four years on whether to preserve the deal — with the first vote due late 2024.
London had demanded a “stronger role” for Northern Irish representatives when it comes to the application of EU rules.
London wants the bloc to end oversight of the Court of Justice of the EU (CJEU) when it comes to EU law in Northern Ireland, and replace it with an arbitration system similar to those in other international trade deals. The U.K. argues it is “highly unusual” for one party to a treaty to be subject to the jurisdiction of the institutions of the other.
But the Commission has ruled out any changes to this part of the protocol, which it considers an ideological demand that does not affect Northern Irish businesses and citizens.
The EU official said that without CJEU oversight there cannot be access to the EU single market for Northern Ireland’s goods, and that any other models reducing the court’s role in the region would fall short of Britain’s expectations since the U.K. has asked for its entire removal.
“Should the U.K. insist on its constitutional concerns then there remains a very big gap between the ideas we’re putting on the table today and what the U.K. government is asking for,” an EU official said. “There won’t be a further governance package in addition to what we’re presenting today.”
The Commission’s package also fails to address Britain’s demand to change state aid rules in Northern Ireland, one of the most contentious issues in the Brexit negotiations.
The protocol requires the U.K. to inform Brussels of any state subsidy decisions benefitting British firms supplying goods to Northern Ireland. London wants these provisions to be scrapped, arguing they are redundant now that there is a trade deal in place and the U.K. is strengthening its own subsidy controls through legislation.
However, the U.K. has indicated it is willing to improve its processes for subsidies above a certain threshold relating directly to Northern Ireland.
The Commission’s package does not allow unfettered movement of pets between Great Britain and Northern Ireland.
Under the current protocol, pets including dogs, cats and ferrets need a special animal health certificate, and must be microchipped, vaccinated against rabies and treated for tapeworm.
The EU had hoped the U.K. would agree to pet passports, but this idea was dropped because it would require the U.K. to fully align with EU rules — an option London has ruled out.
Britain had proposed that pets entering Northern Ireland from the rest of the U.K. should be exempted if they don’t cross into the EU.
Guide dogs are the only exception. The EU proposed earlier this year that they should continue to enter Northern Ireland from the rest of the U.K. without the animal health certificate usually required by the bloc for pets.
What happens next?
The Commission says it believes it will take “a few weeks” to discuss the proposals with the British side and allow London to draw its own conclusions. Then, the hope is that both sides can strike a deal relatively soon. “I think that both sides would want by the end of the year to have an understanding how this protocol should function,” the EU official said.
However, there is also a recognition in Brussels that things might move in a different direction. The U.K. could reject the EU’s proposal and insist on a full renegotiation of the protocol — a step Brussels has excluded — which could lead to a situation where Britain suspends the Northern Ireland protocol or parts of it by triggering its Article 16.
Frost has warned he will engage in the talks for the next three weeks before considering whether a compromise is possible or, if not, what unilateral action the U.K. will take.
Triggering Article 16 would lead to a drastic escalation of bilateral tensions and could trigger a trade war. “We hope for the best,” the EU official said.