Richard North, 28/07/2021  

Just when you think the situation is settling into a predictable rut, something turns up which puts it on a different level. In this case, it is a move (or non-move) by the Commission: it has decided to pause the infringement action against the UK government, instigated for failure to implement the Northern Ireland Protocol.

The official story is that this has been done to ease rising tensions and thereby preventing a further deterioration in relations, presumably on the assumption that this will enable dialogue to continue without the prospect of a legal case hanging over the talks.

Thus, in leaden Commission-speak, the narrative is that the pause will help "provide the necessary space to reflect on these issues and find durable solutions to the implementation of the Protocol".

Just as plausible, though, is the possibility that the Commission is playing "sweet reasonableness" card, in the manner of Matthew Arnold. Doubtless, the intention will be to further to isolate the Johnson administration and to strengthen the impression that the UK is the bad kid on the block, reinforcing the legend that the "colleagues" have gone the extra mile in an attempt to make the Protocol work.

This would actually make more sense, as the UK has already rejected every move made by the Commission, sticking to its demand that the Protocol should be renegotiated, against the threat of invoking Article 16. By appearing to be extra conciliatory, the Commission loses nothing and takes the moral high ground – for what it's worth.

This goes very much with the publication yesterday of a three-page draft setting out: "Examples of flexibilities identified by the European Commission in an effort to facilitate the full implementation of the Protocol on Ireland/Northern Ireland".

Yet, the very first of these "flexibilities" is the offer of a "Swiss-style veterinary agreement" which, the Commission says, would remove most checks on Great Britain – Northern Ireland trade, even to the extent of making this a temporary agreement which could be reviewed once the UK concludes new trade deals.

But, as I pointed out a while back, there is no such thing as a "Swiss-style veterinary agreement". This is, in fact, a much broader agreement between Switzerland and the EU, of which veterinary matters are just a part.

What particularly sets this agreement apart from the very specific veterinary agreements – such as that between New Zealand and the EU – is the institutional architecture, and the integrated nature of the Swiss and EU authorities.

Not least, as I pointed out in my earlier piece, the Swiss Federal authorities have agreed to allow the European Commission to take the responsibility for overall coordination, inspections/audits of inspection systems and the necessary legislative action to ensure uniform application of standards and requirements within the Single Market.

This is on top of the Swiss authorities adopting a huge tranche of Single Market, Animal Health and Plant Health law. The EU and the Swiss also maintain a joint veterinary committee to coordinate actions, and the Swiss adopt the EU's surveillance and administration systems, including TRACES. Sharing of information is mandatory.

One only has to explore the details of the Swiss arrangement, therefore, to appreciate that its adoption by the UK would not be politically tenable. In certain respects it goes even further than the EEA Agreement and, if that was unacceptable to the British government, it doesn't take much to work out that something involving an even greater degree of integration would not exactly fly.

On the other hand, the UK proposal of a dual regulatory system applicable to Northern Ireland is equally unacceptable to the EU. This would entail the full SPS regime being applied to goods, on entry to Northern Ireland, when they are intended for export to Ireland, and no checks on items that are only ever intended to be consumed in Northern Ireland.

Since these fixed positions are apparently irreconcilable, there is a sort of logic in the Commission adopting a tone of injured innocence, seeking to position the UK as the unreasonable party.

The big mistake, of course, was Johnson agreeing to the version of the Protocol that formed part of the Withdrawal Agreement. But one can't help but feel that the Commission and the other EU institutions – guided by Michel Barnier – were equally at fault in pursuing a version which, on reflection, was always going to be unsustainable.

At the heart of this, I rather suspect, is the increasing complexity of the SPS "official controls" which have been heavily revised since the 2016 referendum. The bulk of the changes only came into force at the end of 2019 and some of the more onerous provisions have only applied since last year.

It is all very well therefore, taking the view that the parties (and in particular the UK) should have anticipated the problems but, in a very real sense, both sides have been "flying blind", with no experience of how the changes implemented would work in practice.

The irony of the UK position, though, is that even if the Commission accepted its proposals unreservedly, that wouldn't solve the problems encountered by the likes of M&S in trying to service its Irish stores from the British mainland.

This is part of the reason why I suggested a more fundamental review of the official controls. But, each for their own reasons, neither party is up to the job of rethinking the systems that have been agreed and are now subject to dispute.

To an extent, the RTE report, gives the game away. It talks of the Commission's "goodwill gesture" in response to the UK's Command Paper.

That Paper suggested that the EU should agree a "standstill" on existing arrangements, including the operation of grace periods in force, and a freeze on existing legal actions and processes, "to ensure there is room to negotiate without further cliff edges, and to provide a genuine signal of good intent to find ways forward".

But the Commission is only going half way by suspending its legal action. As becomes clear from its official statement, it is only saying that it will "carefully assess the new proposals made by the UK, in accordance with the necessary consultation procedures, both internally, and with the European Parliament".

Quite explicitly, it is ruling out renegotiation of the Protocol, instead saying it "confirms its readiness" to continue to engage with the UK, and consider any proposals that respect the principles of the Protocol".

This makes the current move little more than gesture politics. With the UK wanting major changes before it will consider implementation, and the EU wanting implementation of the Protocol without major changes, there is no meeting of minds.

Also published on Turbulent Times.

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