Talks to settle the EU-UK conflict over post-Brexit trade rules for Northern Ireland resumed in London on Tuesday, with the focus shifting to the debate over the role of the European Court of Justice.
British officials have said they are sticking with their position to remove the ECJ’s oversight role from trade rules, but the language spoken by Britain’s Brexit Secretary Sir David Frost’s allies is likely to be compromised on the matter. suggested that it could.
There has been media speculation that Frost could support the deployment of “Swiss-style” governance to the Northern Ireland Protocol.
Under this agreement, an arbitration panel will be constituted to deal with disagreements on the protocol, and the ECJ will retain its role in interpreting EU legal matters.
British officials say Frost’s official position has not changed. “The role of the European Court of Justice in resolving disputes between the UK and the EU must end,” he added.
However, the language leaves open the possibility that disputes will be settled preferentially by an arbitration panel.
British officials noted that the ECJ would still be at the apex of the system and would play a key role in adjudicating disputes.
The European Commission argues that the ECJ should continue to serve as the ultimate court for the EU single market. Under the Northern Ireland Protocol, the region remains part of a single commodity market.
The question is whether Frost can devise an arbitration system that satisfies Brussels that basic legal order has not been violated, while leaving the ECJ’s role large enough to claim victory.
Without compromise, Frost threatened to activate Article 16 of the Northern Ireland Protocol.
He insists that EU capitals are urging the European Commission to prepare a range of retaliatory measures if Johnson unilaterally acts to end the protocol, but he does not want to do so.
The protocol mandates customs and regulatory inspections of goods from the UK to Northern Ireland, and businesses have complained of overly bureaucratic measures that leave supermarket shelves blank.
The creation of a trade border in the Irish Sea was also one of the causes of violence in Belfast in April.
British officials said last week that the first technical discussion between the two sides about a possible compromise on the protocol was “constructive”, but the precise role of the ECJ remains the biggest obstacle.
The European Commission’s negotiating team will travel to London on Tuesday to discuss issues including customs inspections and border regulations for animal and plant products for several days.
“This week’s talks have been constructive and we have heard some stories from the EU where we can work together, but the reality is we still have a long way to go on big issues, especially governance,” the UK official said.
Frost and Maros Sefcovic, Vice-Chairman of the European Commission, will meet face-to-face in Westminster this weekend to review the progress of the talks so far.
Talks are expected to run through November, but Frost’s team warned that Northern Ireland’s trade turmoil remains and “we must find a solution quickly as we cannot stand it any longer.”
Frost’s team argued that the Northern Ireland Protocol is now preventing Christmas crackers from reaching the area from the UK.
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