The fundamental divisions over the Northern Ireland Protocol remain, but the rhetoric from the EU has changed.
The emphasis now is on reducing the temperature, keeping calm, finding practical solutions, avoiding cliff-edges and artificial deadlines.
But behind the new approach, the EU is concerned the UK would prefer a "forever war" on the Protocol, rather than be content with a compromise that businesses and consumers in the North can live with.
"Fundamentally, we are totally at odds with the UK government," says a senior EU diplomat. "But if we can alleviate the concerns in Northern Ireland, that may trigger something within the UK government which in the end they might settle for, rather than pursuing an endless war."
For its part, the UK remains adamant that "flexibilities" within the Protocol are not enough. Changes must be substantial.
The EU's change in emphasis is driven by a number of things: a major election in Germany later this month, and one in France next year; does an incoming German Chancellor want to be confronting a trade war with Britain?
The EU has other formidable geo-political concerns: the pandemic, Afghanistan, China, Africa, Russia, migration.
EU capitals are also growing tired of a relentless dispute involving a patch of land on Europe’s north-western seaboard.
"There is generally across the EU a bit of Brexit and Protocol fatigue," says a senior Irish official. "There is the sense of, here we go again, surely to God this doesn’t have to become one of the dominant issues on the EU agenda?"
This will be music to the ears of the British government, perhaps. A Europe tiring of the Protocol is one that might be divided or be more acquiescent. But the notion the EU will roll over on the UK’s demands would be a miscalculation.
The change is one of tone and management, not of substance.
How and when did the change come about?
July was a key month. The EU had announced a package of easements in June, and whether it was connected or not, the marching season in Northern Ireland passed off peacefully.
But the Commission was still on course to escalate legal action against Britain for unilaterally delaying the full implementation of the Protocol back in March by extending grace periods for agri-food paperwork.
The next step in the infringement proceedings was to issue a "reasoned opinion", in essence, a prelude to the issue being sent to the European Court of Justice (ECJ). In June, Maros Šefčovič, the EU’s chief interlocutor on the Protocol, was telling member states the UK could end up in court as early as this month.
In the meantime, the UK was preparing its "Command Paper" setting out substantial changes to the Protocol.
"There was a fair bit of discussion from late June onwards about when the reasoned opinion should be issued," says the Irish official. "Was it better to do it before or after the Command Paper?"
Legal action still seemed certain, however.
The Command Paper, published on 21 July, contained a list of familiar complaints about the context in which the Protocol was negotiated, the disadvantageous position the UK had been in since the Joint Report of 2017, the ruinous gridlock in the House of Commons in the months leading up to the revised Protocol being negotiated in October 2019.
The UK was now demanding a "rebalance" to the Protocol, to better reflect, in London’s view, the Good Friday Agreement. Brussels regarded the Command Paper’s demands as a sweeping renegotiation.
On 22 July there was a difficult phone call between Boris Johnson and the Commission President Ursula von der Leyen. Johnson demanded the EU take the paper seriously; Von der Leyen said the Protocol would not be renegotiated, but that flexibilities could be found within it.
Later that afternoon Johnson spoke to Chancellor Angela Merkel. "That call went a bit better, but wasn't great either," says an EU diplomat, briefed on developments.
The EU seemed to be on the verge of pressing ahead with the legal action. However, there came a swift change of mind.
"[The Commission] came into the Working Party [meeting of member state officials] and said they were on the brink of issuing the reasoned opinion," says the diplomat. "Then 24 hours later they came back in and said, we're not going to issue it."
There had been a lot of reflection about how to respond to the UK Command Paper. Ultimately it was believed that moving to a reasoned opinion would only lead to a tit-for-tat escalation of rhetoric that could run through August and into September.
"The choice was made to react in a calmer way," says a senior EU official, "and it was felt that wouldn't be compatible with moving to the next stage of the infringement procedure."
How much of this is down to Angela Merkel’s intervention is hard to say. While officials say her phone call with Johnson wasn’t necessarily pivotal, Merkel’s long view is often highly persuasive.
"Berlin was definitely a factor," says a senior Irish official. "Berlin was probably saying to Brussels, we need to keep this in perspective. Yes, we have problems with Britain, and yes, we're not going to let them do what they want, but we have to avoid allowing it to become a disproportionately mega-political issue on the EU agenda."
The official says the consistent view from Merkel has been that, whatever the day-to-day frustrations with Boris Johnson, Britain remains a member of the G7 and is a major security and defence player. "You have to focus on the principle that in any reasonably functioning political situation you would expect to see close cooperation between the EU and UK," the official says.
In the middle of August a team of European Commission officials went to London for technical talks. They wanted to hear the UK’s explanation about how the Command Paper ideas would work.
"It was an opportunity for the UK to explain their thinking, explain the content of it, for us to listen, to make sure we really understand it," says one official present. "The idea was not to dismiss it, but to take it seriously, to discuss it."
EU officials were adamant, however. The Protocol would not be renegotiated. They pointed out which parts of the Command Paper would require renegotiation and which wouldn’t.
One diplomat briefed on the meeting said: "It wasn't particularly fruitful. There was a sense the British weren't really prepared for that sort of discussion. They had got as far as the Command Paper and hadn't really thought beyond that."
A further meeting took place in Brussels this week.
Officials are clear the EU can go beyond the package of measures announced in June, which covered medicines and on the grace period for chilled meats. "The idea is to try and identify the gap between where the Commission might be prepared to go in terms of flexibilities, and what the British want in the Command Paper," says the diplomat. "Could that gap be bridged?"
It will certainly be a major challenge.
London is insisting that flexibilities here and there are no longer enough.
A UK official said: "The fundamental point is that there is a lack of cross-community support and therefore the Good Friday Agreement is not being upheld. That’s alongside business, supermarkets and others. The Good Friday Agreement is not just about keeping no border north/south - it has east/west dimensions too. The British government is not saying, therefore we scrap the Protocol. We're saying we need significant changes to it for it to work sustainably."
In his speech to the British Irish Association in Oxford last weekend, Cabinet Office Minister David Frost said that the UK wanted to work on a "subsequent agreement [that] may replace parts of the existing [Protocol] text.
On the EU side, trust in Boris Johnson’s government has all but collapsed. There is also growing concern that the UK is pushing notions of sovereignty in how the Protocol is implemented which they had not raised a few months ago.
In particular, there is the demand that the ECJ be excluded from an oversight role when it comes to the application of single market rules in Northern Ireland.
Despite agreeing to it in October 2019, the UK now calls the ECJ’s role as "highly unusual".
"The UK refused to accept this in the negotiations on the [future relationship] Trade and Cooperation Agreement, and only agreed to it in the Protocol because of the very specific circumstances of that negotiation," the Command Paper states.
Frost in his Oxford speech pushed the sovereignty argument further, saying the role of the ECJ put the UK in a "subordinate" relationship, and that it was not acceptable.
This has alarmed Brussels and Dublin. The EU regards the ECJ as the ultimate arbiter of EU law. EU law applies in Northern Ireland and on the EU’s regulatory frontier, which is now on the Irish Sea.
The suspicion is that London is elevating the sovereignty issue as a way to short-circuit the EU’s efforts to find practical solutions - or flexibilities - and that the role of the ECJ is not a burning issue on the ground in Northern Ireland.
"I believe that our focus should be on those issues that matter the most to the people of Northern Ireland, and not on requests, such as removing the role of the European Court of Justice," Šefčovič told an audience at Queen’s University (QUB) on Friday.
"Doing this would effectively mean cutting Northern Ireland off from the EU’s Single Market and related opportunities," he warned.
"The purpose of the [Šefčovič] visit to Dublin and Belfast," says an EU official, "[was] to hear those issues and work out how to solve them; there is a distinction between that and the UK position, which is increasingly guided by the concerns about sovereignty which we heard so much about a few years ago."
But the problems with the Protocol’s implementation remain formidable.
The UK Command Paper reports that businesses are struggling across the board with new customs declarations, multiple health certificates for food products, staff redeployments, the reduction of product lines, and the disruption of supply chains.
Medicines "are at risk of discontinuation because the hurdles to clear to reach the small Northern Ireland market make supply unviable."
The paper states: "The authorities in Northern Ireland have conducted more than 40,000 documentary checks and 3,000 physical checks on agri-food goods arriving in Northern Ireland. Decisions are being made on more than 300 entry documents for products of animal origin every day.
"Consumers have seen real impacts: at least 200 companies in Britain have stopped servicing the Northern Ireland market."
Will flexibilities within the Protocol be sufficient to deal with these burdens?
On Wednesday, Šefčovič told EU ambassadors that he would come forward by late September/early October with fresh proposals covering customs, Britain-Northern Ireland movements of food, medicines and strengthening the role of Northern Ireland institutions and stakeholders in the implementation of the Protocol.
He hoped he could reach agreement with the UK by the end of the year, but there was no guarantee of success.
The EU has already published a paper on medicines, promising to bring in new legislation this year to ensure that medicines being circulated in Northern Ireland can undergo the regulatory process in the GB first, so there are no impediments to their being placed on the market.
But by far the most challenging area is the sanitary and phytosanitary (SPS) checks and controls on agri-food, plant and feed products moving Britain-Northern Ireland.
The core British argument is that the risk of food produced in Britain entering the EU single market via the South is "extremely limited", and that the lived experience of the Protocol so far has shown that.
The Protocol’s original formulation, that goods entering Northern Ireland from Britain should be deemed guilty of being at risk of crossing the border south until proven innocent, should be inverted, the UK argues.
In other words, only those goods that are clearly destined at the outset for the Republic of Ireland should have to undergo SPS and customs checks, with enhanced supply chain transparency and data exchange, and with traders in breach being hit with penalties.
This brings everyone back to the original dilemma. How can member states know that goods won’t enter the single market illicitly if they’re not being checked when entering Northern Ireland?
In a future where goods entering the South directly by boat from Britain are subject to onerous checks and costs, there would undoubtedly be an economic incentive to bring those goods in cheaper via the North.
The fundamental question will be the extent to which the EU will have any sympathy for the UK’s concept of risk.
"Sympathetic might be too strong a word," says an EU diplomat. "But they are looking at ways in which the bureaucracy can be minimised. There is, in parts of the Commission at least, a realisation that, given the experience of the past year, the risk is relatively low. It's not zero, but it's relatively low."
There is more scope when it comes to customs formalities. "There could be a way of, within the term 'at risk’, identifying credible systems that accept certain categories of goods that have a lower level of risk than others," says an Irish source close to discussions. "EU customs systems operate on a risk basis."
However, on food checks, risk is a much tougher issue.
"Effectively this is a conversation about risk and how much the EU is prepared to accept," says a senior EU official. "The UK assertion that the risk [of food produced in Britain and not regulated to EU standards] entering the single market is vanishingly small. That's something we really disagree with."
The EU SPS legislation has evolved over the years so that barriers to trading food across borders are dropped in exchange for member states (as well as Switzerland, Norway, Iceland and Liechtenstein) following the same rulebook on food safety and animal and plant health.
Built into this rulebook is a zero-risk approach, and this has been upheld in the jurisprudence of the ECJ.
The UK argues that since there is little or no risk of food destined for Northern Ireland entering the single market, then the same approach shouldn’t apply, especially since the UK has not lowered its food standards since Brexit came into effect.
However, the European Commission have challenged this notion with what they believe is a salient example.
Citrus Black Spot (CBS) is a fungus affecting orange and lemon plantations in South America and South Africa.
The disease is not harmful to humans, but it can cover citrus peel in a black fungus which will mean traders cannot sell fruit that is affected.
In 2016, the European Commission introduced measures to keep the EU CBS-free, including periodic bans on fruit from Brazil, Uruguay and South Africa, and requirements that imports from other countries are accompanied by SPS health certificates.
However, since January 1 the UK permits such citrus products from those countries.
"What this means is that these fruits, which now include citrus, can now be brought into GB without a [EU] phytosanitary certificate and without advanced notification of the shipment," according to Tralac, the South African trade law organisation.
To EU officials, this is why a zero risk approach is not negotiable. Because of the EU’s export ban, significant volumes of South African and Latin American oranges are circulating cheaply and now being sold alongside other origin fruit in the UK.
"If you have a supermarket in Northern Ireland which sells both kinds of oranges, then somebody picks one up, takes a flight to Seville, eats an orange and throws the peel into a plantation field, you can destroy an industry," says an EU official.
British sources are dubious about such a scenario, and argue that both sides could take remedial measures to ensure biosecurity on a case-by-case basis.
A UK official said: "As we develop potential solutions, if there is a genuine risk to the Single Market from Citrus Black Spot or in other areas, let's talk about those specific concerns and how we can appropriately address them.
"The problem is the Commission's approach is a blanket one, which fails to account for the nature of trade between GB and NI, and so puts into question important food supply chains."
These issues will be explored - once again - after Maros Šefčovič’s proposals are brought forward in the autumn.
Officials say the EU will only stretch their position on SPS and the risk issue if they are absolutely certain that the UK will (finally) put in place the required infrastructure that underpins the Protocol, and that whatever is agreed is a definitive, once-and-for-all settlement.
"Even if the EU was willing to move significantly, it would only be on the basis that they were pretty confident that was the end of it, that's now the new thing and that's it," says a senior Dublin source, "rather than there being another round of, ‘ok, we'll take that, but five minutes later we'll be back looking for something different, and more and extra and longer.’"
As always, divining London’s real strategy (or strategies) is a treacherous business.
"The fundamental question here is, do the British want a deal?" asks an EU diplomat. "Do they want to work towards a flexible approach within the framework of the Protocol? Or is this part of some internal political debate in the UK, where it's in the interests of London to keep a strained relationship going."
David Frost’s Oxford speech ended with the warning: "You should be in no doubt about the centrality of this problem to our politics and to this Government. The issue needs to be fixed and we are determined to fix it. It is...inseparable from our view of our own territorial integrity and of what is best for Northern Ireland in the decades ahead."
The potential for an acrimonious breakdown in the autumn cannot, in light of this hardline approach, be discounted. Dublin is aware that the EU runs the risk of being worn down by relentlessly hardline UK demands, backed up by DUP threats of collapsing the Stormont assembly.
"It's like pulling an elastic band," says a senior Irish official. "Every time you stretch it a little bit more you get a little bit more. But then eventually it snaps. You could certainly see a situation where the talks become stuck, or where national or EU calculations will be, ‘we've run out of road here and have to show the UK there's a limit.’"
Some hope, however, that in the same way the EU’s geo-political concerns around the pandemic and Afghanistan, have prompted a different stylistic approach, that Britain, too, will reconsider, now that its global self-image has been jostled by recent events.
"Calculations London is making in the geopolitical arena might be proving not as secure as they might have hoped," observes the Dublin source. "That might, over time, play into a softening of the British position. Or, at least a willingness to invest a bit more tactfully in EU-UK relations."
