EU unity faces fresh test

A British move to suspend the post-Brexit Northern Ireland protocol could pose a major test of European unity.

The protocol, which seeks to avoid the need for a land border between Northern Ireland and the Republic of Ireland to the south, has long been the most complex Brexit conundrum. The compromise struck as part of Brexit talks kept Northern Ireland aligned to key bits of EU law but the two sides disagree on its implementation.

Talks between Brussels and London over the controversial trade arrangements intensify this month, with the EU due to put forward a fresh set of proposals on Wednesday and the U.K. expected to offer more detail on its own ideas next week.

Yet member states aren’t yet settled on how far to go in response if the U.K. presses the nuclear button — and some fear a trade war with Britain would be damaging for both sides.

POLITICO spoke to officials and diplomats on both sides to map out what might happen if Boris Johnson’s government decides to act.

Britain wants the EU to reduce the scope of border controls on goods shipped into Northern Ireland from England, Scotland and Wales, in the face of major disruption to business and deep anger from unionist politicians in Northern Ireland, who see the arrangement as driving a wedge between Northern Ireland and the rest of the UK.

But the UK’s pitch for reform — outlined in a paper published in July — would effectively require Brussels to trust its assurances that restricted goods can’t make their way into the EU’s single market through the Republic of Ireland. The EU has warned Britain not to expect a significant renegotiation.

Compromise could emerge on areas such as simplification of customs processes for goods moving from Great Britain into Northern Ireland, including drugs — but this won’t meet all of the U.K. demands. The nub of the problem is Britain’s attempt to change several aspects of the protocol which were controversial in the Brexit divorce negotiations and that the EU considers settled since the Withdrawal Agreement became international law.

These include the application of EU state aid rules in Northern Ireland, and the oversight of the European Court of Justice (ECJ) when it comes to EU law in the region — oversight the U.K. wants to scrap. The latter is the biggest ask in the eyes of the European Commission, which considers it an ideological demand by U.K. Prime Minister Boris Johnson rather than an issue directly affecting Northern Ireland's businesses and citizens.

The Commission now accepts the U.K. is likely to unilaterally suspend parts of the protocol before Christmas through its Article 16 mechanism, which allows either side to act to avert trade trouble or “serious economic, societal or environmental difficulties.” Johnson and his Brexit point-man David Frost have made it clear they believe this test has already been met.

The Commission’s formal response to the U.K.’s proposal — due Wednesday — is set to include an exception for “national identity food products,” allowing sausages and other products to enter Northern Ireland from Great Britain after the end of previously-agreed grace periods, an EU official said.

Frost will submit a new legal text to the Commission this week, setting the “foundation” for a new protocol.

In a speech in Lisbon Tuesday, Frost will warn EU proposals are insufficient. He will press the bloc to scrap its ban on British chilled meats entering Northern Ireland from the rest of the U.K. altogether and remove oversight of the ECJ in the region, arguing the court “has created a deep imbalance in the way the protocol operates.”

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