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On Tuesday Michel Barnier gave the EU ambassadors a negative assessment of the negotiations on the future relationship with the United Kingdom. The EU’s top negotiator also spoke briefly about the dispute over the EU that has an office in Belfast.
The EU believes that the Irish Protocol makes such an office a practical, if not legal, necessity, as by the end of this year Northern Ireland will be operating under EU customs and regulatory rules, while the rest of the UK it will not.
The United Kingdom insists that the Protocol does not legally oblige London to approve such an office, and that its presence alone would be divisive.
According to all reports, there is growing frustration in national capitals that the EU still has to spend time and energy on the Brexit issue, given the overwhelming cost and urgency of the Covid-19 pandemic.
“You really make sense [at the meeting] that there is no time or patience for this now, “says an EU diplomat.
The issue of the EU office seems to be stationary for now. Michel Barnier told the ambassadors that there were more pressing concerns.
The transition will expire in just over seven months, and the EU fears that preparations will be delayed too long. What is envisaged is a radical new regime of checks and controls on goods moving between Great Britain and Northern Ireland.
“Regardless of what happens,” says an EU source, “unless the transition is extended, conditions will change dramatically. We know how it will happen. We have no excuse for not planning ahead.”
On April 30, the European Commission Working Group distributed a reminder to Member States on the work to be done.
The United Kingdom will have to apply the customs regulations of the European Union in the northern ports and airports.
Facilities will be necessary to ensure that all foodstuffs entering the North via the Irish Sea meet EU food standards.
There will be a double VAT system. When it comes to goods and excise duty, the EU VAT rules will apply, but when it comes to services, the UK VAT rules will apply.
If northern fishermen fish in UK waters and land in Kilkeel, County Down, then the tariff regime for those fish will have to be resolved, as Northern Ireland will be de facto in the EU customs area.
The EU expects IT systems and databases for customs, VAT and excise to exist so that the North can connect to the EU system.
Work on this should be underway by June 1, says the Commission, while customs infrastructure is being prepared and so-called sanitary and phytosanitary (SPS) checkpoints must begin “immediately” if everything is ready by 1 January 2021.
An additional workload is required when it comes to the issue of rights.
Under Article 2 of the Protocol, if there is any protection of civil and individual rights in the Good Friday Agreement (WAG) that is reinforced or supported by EU law, the UK has agreed that none of those rights can be diminished.
This is also a complex and sensitive area. In some areas Northern Ireland will continue to apply and follow EU equality directives that other parts of the UK will not comply with.
While the UK has been vigorously rejecting the EU’s demands for a level playing field in free trade negotiations, it is clear that some of those level playing fields, especially labor law, will have to continue to apply in Northern Ireland Because there is a reading – through the rights of equality at work that are enshrined in the AMG.
As such, there are six EU equality directives with which Northern Ireland (but nowhere else in the UK) will be required to keep up.
These include equality of treatment in employment, self-employment, social security, access to goods and services, and non-discrimination in terms of ethnicity and race.
If the EU updates any of those directives, the Stormont Assembly will have to do the same.
UK officials point out that the EU Retirement Agreement Act (WAA) already provides for this to happen. For example, WAA has created the “dedicated mechanism”, required by the Protocol, to ensure that rights are not diminished.
The dedicated mechanism is, in effect, that the Northern Human Rights and Equality Commissions work together to provide oversight and compliance.
Both bodies may compel the Stormont Assembly to keep pace with any new EU legislation that reflects GFA rights, or prevent it from introducing laws that would undermine those rights.
The Human Rights and Equality Commissions can also take legal action against the UK government on behalf of individuals, and offers have already been submitted to the UK Treasury to grant these new powers financial resources.
They can also raise issues for the attention of the Specialized Committee, which implements the Protocol, which in turn can bring the matter to the Joint Committee, chaired by Michael Gove and Maroš Šefčovič on the EU side.
Under the Good Friday Agreement, the Irish Human Rights and Equality Commission also has an oversight role if there are North-South cooperation areas, or for example the Common Travel Area (CTA) or security cooperation, in which rights may be jeopardized once the UK leaves at the end of the year.
In general, northern agencies will have to be vigilant if there is any evidence that the UK does not comply with EU law, where such removal diminishes rights and guarantees of equality.
“Translating the widely drafted rights in the Good Friday Agreement into EU law, which must be preserved,” says Les Allamby, chief commissioner of the Northern Commission on Human Rights, “will be a significant challenge.
“For example, what parts of EU law will be covered by the GFA’s right to equal opportunities in all economic and social activities, regardless of class, creed, disability, gender or ethnic origin? “
While the EU believes that progress in other areas has been too slow, there are signs that behind the scenes there has been progress.
The first Specialized Committee meeting on April 30 was soured by the controversy over the EU presence in Belfast. However, there was a more constructive mood about what the UK has already implemented and what it is planning to implement.
“There was some concrete evidence of implementation on the UK side,” says a leading EU source informed of the meeting. “Our initial concern was that this would become a new balance in which everyone would recognize what needed to be done and go home. But the UK did its best to try to show that they really were involved in implementation at one level practical. “
As the various parts of the European Commission become familiar with the Protocol, the heads of the relevant directorates-general have been writing to the United Kingdom to determine what technical measures are being implemented. There have been several responses from Whitehall.
The UK is understood to have told the Commission that it has recruited an additional 700 vets overall to prepare for regulatory checks at EU ports when the transition is complete. Some of these new recruits will go to the Irish Protocol.
There has been at least one video conference between officials from the Commission’s customs division and Treasury officials about the setup of the IT systems mentioned above.
But the infrastructure necessary to house both veterinarians and customs officials, and to allow them to carry out inspections and controls, is the really sensitive part, all the more so because top British ministers, including Boris Johnson himself, have said that there will be no controls. and controls.
“There is no question that products going NI / GB or GB / NI will be verified,” Johnson told Sky News in December. “We are a UK government, why would we put checks on products ranging from NI to GB or GB to NI? It doesn’t make sense.”
On January 22, Jeffrey Donaldson of the DUP asked Johnson in the House of Commons if “unrestricted access” would also apply to “goods moving from Britain to Northern Ireland.” and the Prime Minister replied, “He emphatically does.”
On March 11, Michael Gove, the minister in charge of implementing the Protocol, repeatedly told the House of Commons about the future relationship with the EU Committee that the question of whether there would be additional customs controls on freight traffic GB-NI was “a matter for the Joint Committee” (bringing together both parties to implement the Withdrawal Agreement).
As regards the EU, the Joint Committee does not decide whether or not there will be additional controls and controls, but what goods can be considered at risk of entering the Republic of Ireland and therefore the EU single market.
But there was a significant change in Britain’s position during a follow-up exchange between Michael Gove and Hilary Benn MP, this time during a committee hearing on April 27.
Rather than saying there would be “unrestricted access” for companies bringing products to Northern Ireland, Gove said the UK government wanted “to make sure we can have the most seamless access possible” for such products.
“What I take from that very strongly,” says a senior official familiar with the problems, “is that he definitely did not say there would be unrestricted access in both directions, which is what Boris Johnson said in January. Gove does not visibly do so. say it.”
But what does “smoothest possible access” mean?
Currently, live animals entering Northern Ireland from GB are already controlled at the port of Larne. This is because the island of Ireland is treated as a single epidemiological entity.
Under the Protocol, that system will need to be expanded to ensure that all incoming food products meet EU safety standards, as well as animals and plants.
In its technical note circulated to Member States, the European Commission explained that the UK “should clarify whether it intends to designate additional posts to carry out official controls in Northern Ireland (eg the port of Larne), given that the import of goods subject to official controls are only possible through these messages. “
In other words, controls must be carried out at ports, and the port where live animal controls are currently carried out will not be sufficient given the scale of the new system.
According to the Commission, Larne does not have the capacity to unpack animal and food products and to provide refrigerated storage facilities if those goods have to be verified or prevented from moving.
Without such facilities, says the Commission’s technical note, there would be “a significant risk of disruption of trade flows entering Northern Ireland”.
This brings us to very difficult territory.
In the technocratic world of the European Commission, concepts such as “designated posts” to control food products entering the EU from the outside world are completely innocuous.
In Northern Ireland, such words denote infrastructure and that infrastructure can be perceived as a border between the North and Great Britain.
Northern Ireland Minister of Agriculture Edwin Poots of the DUP has consistently said he would not accept any controls or infrastructure in the northern ports.
So the nature of the dilemma confronting all sides is simulation.
Make infrastructure and controls as discreet as possible, to avoid inflaming unionist sensibilities, but as robust as possible so that the European Commission and member states are satisfied that the single market and the EU customs union are protected .
It could be argued that London’s rhetorical record on this since December is an example of conical mendacity.
Michael Gove’s admission on April 27 that the products would be subject to “as fluent as possible” access (as opposed to unrestricted access) was a subtle change to the truth, and a milestone by which he can later assert that there had been been direct on the subject.
The infrastructure, however, will still have to be built.
The Port of Larne is a private sector entity, a wholly owned subsidiary of the P&O Ferries Group. Belfast Port is a publicly trusted port.
It is understood that the choreography to meet the infrastructure demands of the Protocol would be as follows:
Port operators, who know what facilities, office space, parking areas and other systems must be in place, establish what they will need to build to comply with the Protocol.
They will present their plans to DAERA, the UK Department of Agriculture, which in turn will assess whether the new facilities are fit for purpose.
Once DAERA has carried out its evaluation, it will send the plans to the European Commission, which in due time will decide whether or not the ports comply with EU animal health controls and if they can be authorized as Border Inspection Posts (BIP). certified by the EU.
“That is a three, perhaps four stage process,” says a source familiar with the process.
The UK has written to the EU on how it will handle this choreography and will send a follow-up letter with more details before the end of June.
Another major challenge will be determining which goods that come from GB-NI are responsible for the tariffs, and which goods will be exempt.
This is covered by article 5 of the Protocol. There are goods that come directly to Northern Ireland for sale, goods that will be part of a supply chain or manufacturing process in Northern Ireland, and goods that have originated in a third country that has a trade agreement with the United Kingdom. .
The bottom line for the EU is that all assets are essentially guilty until proven innocent. In other words, all goods will be considered at risk of crossing the border into the EU single market unless it is clearly demonstrated that they are not at risk.
If it’s the latter, then the merchant pays the fee and is then reimbursed, or the merchant is fully exempt.
It will be up to the Joint Committee to determine how all this will work.
The UK wants an approach as pragmatic and flexible as possible. The European Commission has told traders in Northern Ireland that there is flexibility within the rules, but the rules, i.e. controls and checks, must be applied.
UK officials insist they respect the EU’s need to protect its single market, but also note that the Protocol commits both parties to use their “best efforts” to minimize the impact.
UK officials also talk a lot about the Good Friday Agreement.
This represents a clear change in strategy, or at least messages. At briefings, officials insist that the GFA must be the main star of how the Protocol is implemented, and the lens through which all decisions of the Joint Committee must be made.
In other words, the UK believes that if the Protocol is implemented too strictly, it will upset the Unionist population, the business community and inhibit trade between the North and Great Britain, and thus undermine the spirit of the Belfast Agreement .
In fact, several officials mocked the technical note from the European Commission on the pending elements of the Protocol that must be completed, because it did not contain any mention of the Good Friday Agreement.
Critics will say that the more enthusiastic ground troops of Brexiteers and Vote Leave, who now populate the Boris Johnson government, did not show much reverence for the Good Friday Agreement during the 2016 Brexit referendum.
They also didn’t have much time for Theresa May’s solution to the Irish problem, which would have kept checks and controls at least through her UK-wide customs union with the EU, and the high-alignment free trade agreement she aspired to. .
However, this is where things are. Tensions between the EU and the UK over the Protocol persist, but the wheels begin to turn.
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