EU to suggest plan to make operation of NI protocol easier but leave ECJ role in place

Sausages and pork pies could flow freely from Britain to Northern Ireland while checks and paperwork could be slashed under proposals due on Wednesday from the European Commission to ease the Northern Ireland protocol.

The suggested changes are a bid to make the operation of the Northern Ireland protocol – the part of the Brexit agreement that aims to prevent the re-emergence of border checks and hard infrastructure on the Border on the island of Ireland – easier to manage.

The EU’s attempts to make post-Brexit trading for Northern Ireland easier have been overshadowed by a preemptive UK demand for more, but the new proposals set out a starting position for further negotiation.

Brussels has been sounding out the concerns of businesses, citizens and politicians in Northern Ireland for some time, and the proposals aim to reduce the border controls and regulations on goods that have angered and frustrated people in the North. It also wishes to enhance Northern Ireland's say in protocol arrangements.

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Of the four papers set to be unveiled by EU Brexit chief Maros Sefcovic, three relate to the movement of goods from Britain into Northern Ireland. The protocol left Northern Ireland under some EU trading rules after the rest of the UK left the EU, requiring checks on goods moving west to east across the Irish Sea.

They are said to be controversial among some officials within the commission. Countries such as France, which is involved in a simultaneous dispute with the UK over fishing licences, are believed to be concerned that the proposals are too great a compromise and could endanger the integrity of the Single Market.

Changes

The EU will suggest changes to requirements around customs documentation and sanitary and phytosanitary (SPS) checks on food and other products of animal and plant origin that will cover the meat, dairy and plant-based goods that British supermarkets sell in Northern Ireland.

Under the proposals, the checks will not be removed, but Brussels is willing to show flexibility in how they are imposed, with a trusted trader-type scheme where goods can benefit from a kind of express lane moving from east to west.

This should help the big UK supermarket chains moving products into Northern Ireland but will be conditional on Britain agreeing to sign up to restrictive requirements on labelling and data-sharing with real-time access to IT trade databases.

Under the plan, some fresh meats, which ordinarily cannot be sent into the Single Market from a third country, would be allowed to enter Northern Ireland if they are destined for that market alone and are clearly labelled as such, as well as being made in Britain and following certain criteria.

The “national identity goods” designation would apply to foods including sausages and pork pies, in a bid to address what had become a symbolic issue for London, where the dispute has been dubbed the “sausage war”.

Customs simplifications would mean that truckloads of mixed goods would have to carry a single declaration rather than separate forms for the various products, slashing the amount of paperwork required for trade from Britain into Northern Ireland.

Additional risk

As Brussels sees it, the EU will take on additional risk by allowing products to pass through SPS checks more easily, so it wants a clear view on what products are entering Northern Ireland to ensure that they don’t cross the Border into the Republic and the EU single market.

The third area covered by the proposals will allow medicines from Britain to be freely distributed in the North, easing a rule on the authorisation of non-EU medicines in the EU.

The change would allow for the marketing authorisation holder to be based in Britain and for batch testing to take place there, while generic medicines could flow freely and new medicines would be unrestricted.

The easing of the rules would be offered on the condition that Britain fully apply the protocol in other respects, particularly in allowing the automatic sharing of customs data so that it can be seen by EU officials, an area that London has been slow to implement.

Civic society

The fourth and final area – the most politically sensitive – will aim to amplify the voice of Northern Ireland in the various protocol processes, allowing civil servants, politicians and civic society groups have a greater say in the operation of the protocol and improving links between the Stormont Assembly and the European Parliament.

This is a tricky area for the EU as it is limited in how far it can go because Brussels views Northern Ireland’s engagement on this as an internal UK matter for the British government.

The proposals are being made through non-legislative texts – in other words, they are setting out ideas and boundaries, hoping to generate discussions with the UK to agree solutions.

A speech by Britain’s Brexit minister, David Frost, on the eve of the EU’s launch of its proposals received a muted reception in Brussel.

Mr Frost repeated a call for the removal of the role of the European Court of Justice – seen as a foundational principle of the EU and not something it can compromise on – with a warning that he could use the sensitive Article 16 clause to suspend the application of the protocol unless the EU moves sufficiently.

“It was London that opted for this solution. So far Northern Ireland seems to be the only region in the UK without food, fuel and staff shortages and it’s totally unclear what the ECJ supervision has to do with customs,” one official mused.

“If the UK doesn’t like the protocol and wants to destroy four years of negotiations it’s theirs to own. In the meantime the commission will propose its solutions with the member states still firmly behind them.”

Crucially, the proposals do not change the oversight role of the European Court of Justice as the final court of appeal on EU-UK disputes under the protocol.

One EU source said although they were not a “take-it-or-leave-it” position, this would be the last large package of proposals offered to the UK to iron out differences over the protocol.

Officials expect the four papers to form the basis for discussions with the British government in which more concrete details would be worked out, with London free to propose alternative suggestions and ways to design and implement the changes.