On 9 September, Maros Šefcovic and his team entered the Newry and Mourne Enterprise Agency for a two hour meeting with 16 organisations from across Northern Ireland's business sector.

Since the UK had published its Command Paper in July, calling for sweeping changes to the NI Protocol, the EU’s protocol negotiator had been pursuing a twin track approach to deepening tensions with London: lower the political temperature, avoid new deadlines, take the UK demands seriously, and get into technical discussions that might bridge gaps.

At the same time, Šefcovic sought to deepen engagement with stakeholders on the ground in Northern Ireland and pitch the proposals that would be published this week as being for their - not London’s - benefit.

As such, his two-and-a-half day visit was packed with meetings in Newry and Belfast.

Those stakeholders found the Commission team more receptive to their ideas.

"What we were saying to him was," says one Northern trade group present, "not all these issues will be resolved by the protocol or by legislation in London or Brussels. But when a business filter is applied, it can help."

At the end of the meeting, Šefcovic asked the NI Business Brexit Working Group (NIBBWG) to prepare a paper setting out their main problems with the protocol in one column, and their proposed solutions in another.

The paper was sent to Šefcovic’s team on 1 October, and a copy forwarded to the UK Cabinet Office.

"We know it's been positively received by the EU and UK," said Stephen Kelly, chief executive of Manufacturing NI.

Maros Šefcovic speaking after a meeting with business leaders in Newry

The direct approach to Northern stakeholders was deliberate.

Šefcovic was facing resistance from within the Commission’s directorates on customs and food safety over the risks that the flexibilities he was looking for might pose the single market. Member states, especially France, were alarmed that the EU was caving under UK threats.

By arguing that the EU had a direct duty of care to the people of Northern Ireland, and the peace process, this would win Šefcovic breathing space.

On 4 October, his opposite number David Frost told the Tory Party Conference that Šefcovic’s forthcoming proposals would probably not be enough to avoid London triggering Article 16. Support for the protocol had "collapsed" in Northern Ireland, he said.

But Frost was now pushing a new demand: that the European Court of Justice (ECJ) be stripped out of the protocol.

Šefcovic continued to work on the proposals. He told the Institute of International & European Affairs in Dublin on 7 October, that these proposals would ease customs formalities, SPS controls and ensure the free flow of medicines to Northern Ireland. They would be "far reaching".

The next day (last Friday), reports surfaced of customs checks on GB-NI goods being cut by half, and that the EU would create a category of "national identity" foods that would be exempt from controls.

The Daily Telegraph declared an "EU surrender" in the "sausage wars". The DUP leader Jeffrey Donaldson struck a cautiously optimistic note: "I think the pressure we have brought to bear...has focused minds both in London and in Brussels."

Reports surfaced of customs checks on GB-NI goods being cut by half

The same day, the 27 European Commissioners received the first drafts of Šefcovic’s proposals.

"It was seen as a very honest package that has been painstakingly put together over several weeks and months," says one source. "It was seen as a genuine response to what Šefcovic picked up from what people on the ground actually need."

However, on Saturday night the mood turned sour. The Sunday Telegraph reported that Frost "will make clear to his EU counterpart that removing the European Court of Justice's oversight of the protocol is a 'red line’ for Britain."

Frost’s Lisbon speech would warn that "no one should be in any doubt about the seriousness of the situation… The Commission have been too quick to dismiss governance [ie, ECJ oversight] as a side issue. The reality is the opposite."

One furious EU official said the briefing to the Telegraph was designed to undermine Šefcovic’s efforts and poison the atmosphere ahead of Wednesday’s unveiling.

"There was no need to do what [Frost] did. They had their outing at the [Tory] party conference. This was a deliberate strategy," the official said.

At 11.22pm on Saturday night the Minister for Foreign Affairs Simon Coveney responded with an angry tweet: The EU was "working seriously to resolve practical issues with implementation of Protocol" and this new ECJ red line was now a barrier to progress.

"Does UKG actually want an agreed way forward or a further breakdown in relations?"

At 12.29am Frost responded. "I prefer not to do negotiations by twitter, but since @simoncoveney has begun the process....the issue of governance & the CJEU is not new. We set out our concerns three months ago in our 21 July Command Paper. The problem is that too few people seem to have listened."

That was true, a senior EU official conceded. "But they have this notion that they command what we will do."

On Monday, Coveney admitted on RTÉ's Morning Ireland it was probably not diplomatic to take to Twitter, but said it was prompted by anger at what he saw as a clear attempt to undermine Maros Šefcovic.

"He's worked hard," says Coveney. "And there's been a lot of pushback from the Commission and from some Member States. Are we giving too much away? Are we being tough enough in these negotiations?"

Some in Dublin and Brussels wondered if Šefcovic should pull his proposals.

"If you're going to put your best foot forward in terms of getting as close as damn to as far as you can go, and it's been rejected before you even even put it on the table," said a senior Dublin figure, "you'd have to ask the question: should you be putting it on the table at all?"

Maros Šefcovic (L) pictured with Simon Coveney in October, 2020

A senior EU official agreed: "We can't afford to put something out there that will be shot down."

However, others believed Šefcovic should press ahead. "Frost is going to put his demands out [in Lisbon]," said one diplomat. "Then we will come out with our package. It’s better to publish it, show that we've tried, and then let them trash it. Let Frost own it, not us."

Šefcovic was pressing ahead. On Monday, Irish officials received the proposals. They were still not ready, as the Commission services were still arguing over how far the flexibilities could go. ("There was blood on the floor," said one diplomat).

Member states had been largely content to let Šefcovic get on with his work. But Germany and France were growing increasingly concerned at London’s new demand over the ECJ.

While they supported the proposals he was drawing up, they wanted to know what the EU would do if London rejected them. Berlin was working on options, Paris, already animated about the UK allegedly denying licences to French fishermen, was more gung ho about retaliation.

"France is more hardline, Berlin is hopeful but sceptical," says one EU diplomat familiar with discussions. "There's a huge difference in tone and approach between Berlin and Paris. They're preparing for the same outcome but they don't necessarily advocate the same things.

"Paris is straight out of the blocks for retaliation. That is not where Berlin is. They're Germans, they want to know what options there are. How can we respond proportionately, in what field can we expect action, how can we convey the strongest signal to London?"


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The Netherlands, Spain and Italy had similar concerns, but for the moment discussions on options remained private and informal.

It’s understood all five countries conveyed their positions to Šefcovic on Monday.

On Tuesday afternoon, David Frost took to the podium in Lisbon. He effectively said the NI Protocol was dead and would have to be replaced by a new one, a draft text of which the UK was sending to Brussels.

While capitals were expecting another combative volley, the tone and content took many by surprise. He all but accused the EU of trying to use Northern Ireland to reverse the Brexit vote.

Frost set out his fundamental objections over the ECJ. "We are being asked to run a full-scale external boundary of the EU through the centre of our country, to apply EU law without consent in part of it, and to have any dispute on these arrangements settled in the court of one of the parties."

David Frost set out his objections to the European Court of Justice

Why has the UK raised the issue of the ECJ now?

It was not an issue in Theresa May’s 2018 deal, nor in the revised protocol negotiated by Boris Johnson in October 2019.

It was not raised in any of the Joint Committee meetings in 2020, nor was it mentioned in the December 2020 agreement between Šefcovic and Frost’s predecessor Michael Gove setting out flexibilities and grace periods.

The ECJ was not raised as a problem in any Protocol-related Westminster committee hearings between January and July, even those involving David Frost in July, in the days right before the issue first surfaced in the Command Paper.

When the Command Paper did appear it described the ECJ’s role as "highly unusual" in that the UK was "subject...to the jurisdiction of [EU] institutions".

The paper suggested London had only agreed under duress. The ECJ issue had "increased...tensions" in Northern Ireland and had "contributed to a false sense of separation [from] Great Britain."

In a letter to the House of Lords European Affairs Committee on 28 September, the UK government went further. The problem was not just the ECJ, but the European Commission as well.

"We need to remove the policing role of the EU institutions and the [ECJ] so as to give us a more balanced framework that has the confidence of both communities in Northern Ireland."

In Lisbon, Frost developed the theme. The ECJ was at the apex of a system "which means the EU can make laws which apply in Northern Ireland without any kind of democratic scrutiny or discussion."

The European Court of Justice in Luxembourg

Brussels disputes this. If the EU is introducing new single market rules, the UK can query their necessity in Northern Ireland through the EU UK Joint Committee.

Under Article 13 the EU "shall inform the United Kingdom of the adoption of that [new] act in the Joint Committee [which]... shall hold an exchange of views on the implications of the newly adopted act."

If both sides can’t agree they will "examine all further possibilities to maintain the good functioning of this protocol".

An EU official says: "There is actually already an extremely important provision on representations of Northern Irish institutions, and [as regards democracy in the protocol] the Northern Irish executive, the First Minister, the Deputy First Minister, both participate and can take the floor in Joint Committee meetings."

One of the EU’s new proposals is that the Joint Consultative Working Group (JCWG), which alerts the UK as to what new measures, or amendments to single market rules are in the pipeline, can also be joined by businesses and stakeholders through more regular and formalised structures.

It has, indeed, been assumed that if the UK pulls away from the EU's regulatory orbit, then that will increase trade friction on the Irish Sea.

There is, of course, the rolling four year consent mechanism in which the Assembly can decide whether or not to continue the protocol’s main provisions.

However, British sources say the problem is more subtle than that. They point to a series of incidents where the EU is accused of acting in a cavalier manner towards Northern Ireland.

These include the vaccine / Article 16 incident in January, steel imports into Northern Ireland being hit by tariffs and the EU’s decision to launch legal action when the UK unilaterally extended Protocol grace periods.

According to this narrative, the ECJ, as the ultimate arbiter, prevents "nuanced" discussion when there is a problem.

The EU’s legal action in itself (which could still end up in the ECJ) showed there was "no discretion about how provisions in the protocol are implemented…[and] why these arrangements won’t work in practice," Frost told his audience in Lisbon.

Brussels views this as no justification for a fundamental rewriting of the protocol.

Officials have long insisted that the reference to Article 16 in a draft regulation in January - withdrawn within hours - meant no more than that if any vaccines were being shipped to Northern Ireland from a member state they would have required an export licence, whereas if they were being shipped to a "regular" member state they wouldn’t.

On steel tariffs, officials said that the sudden flare-up of the issue was the result of a complex anomaly which both sides had overlooked, and which related to Donald Trump’s decision in 2018 to impose tariffs on steel and aluminium.

One clue as to why London has suddenly made the ECJ an existential issue may be found in Jeffrey Donaldson’s comments on Monday night.

Speaking in Stormont the DUP leader raised the possibility that if the UK diverged from EU single market rules in the future, then the ECJ could end up arbitrating a subsequent trade dispute arising from any knock on effect in Northern Ireland, which would still be applying single market rules.

"We don’t want Northern Ireland once again caught in the middle of all of that," Donaldson told reporters.

It has, indeed, been assumed that if the UK pulls away from the EU’s regulatory orbit, then that will increase trade friction on the Irish Sea.

Has Frost contrived - or at least exaggerated - a fundamental antagonism towards the ECJ in order to give the UK more future leeway in diverging from EU rules, so it can avoid collateral damage to Northern Ireland?

With ECJ oversight gone, the UK might feel shorn of the hindrance that the protocol currently presents.

For now the EU looks like it is in no mood to compromise.

"The effect of the protocol is to extend the single market for goods to Northern Ireland," says an EU official. "And that comes with the Court of Justice. If you take out the Court of Justice, you take away Northern Ireland’s access to the single market."

Furthermore, the Commission’s so-called Maximum Facilitation (Max Fac) proposals to reduce GB-NI checks are predicated on the UK not diverging from the EU’s regulatory approach, at least not wildly.

"Divergence is going to be a problem anyway," says a diplomat from a sizeable EU member state. "The UK opted to keep Northern Ireland inside the EU internal market for the purposes of keeping the border off the island of Ireland. That put the border between GB and NI. That was their solution. Theresa May’s solution was different.

"Now, if the UK is going to diverge then Max Fac is going to fall away. It won’t be sufficient if they start diverging. Frost says that can’t be solved by the ECJ. Well, the ECJ is the final arbiter. That’s what it is."

Indeed, the UK may be underestimating the mood in EU capitals, not least because of the growing clamour over the Polish high court recently ruling that national law trumped EU law.

Tinkering with the way the ECJ adjudicates single market rules could give the Polish government an opening that member states will want to avoid.

Some commentators have raised the possibility of a Swiss-style arrangement, whereby the ECJ would be the final arbiter if points of EU law had to be clarified, but before it came to that a dispute would be referred to an arbitration panel.

It’s understood this idea was informally floated in recent weeks but faced resistance from member states and so was excluded from early drafts of the Šefcovic proposals.

"Why would we create another layer? It creates uncertainty and then it would later on get conflated by the Polish issue," says one EU diplomat.

This certainly raises the prospect of the talks collapsing over the ECJ issue, even if the EU’s package of easements can be improved upon here and there.

Would the UK take that risk?

One view is that a successful protocol simply highlights the relative benefits of being in the single market. Absent any immediate, tangible Brexit-related economic upsides for the rest of the UK, then Frost is forced to trumpet the sovereignty prize in the short term.

"Fundamentally for the UK, it goes back to this basic problem," says a senior Irish source. "The benefits for Northern Ireland via the protocol are only really benefits if they are benefits that don't exist for the rest of the UK. Therefore it's this truth that can't be acknowledged."

When push came to shove in October 2019, Boris Johnson veered away from the no-deal cliff edge and came home with the protocol he now denounces.

David Frost (L) and Boris Johnson with the Withdrawal Agreement

Frost believes that was a mistake. There is no cliff edge now, and the ambient mood among Brexiteers, for whom Frost is the champion, is to crank up the rhetoric over sovereignty, territorial integrity and "foreign judges".

Frost himself has made no secret of his view that Theresa May’s acquiescence in prioritising no hard border in Ireland was the original sin which led to the December 2017 Joint Report and the core idea of Northern Ireland remaining aligned to the single market.

Following months of non- or reluctant compliance, it may be tempting to view Article 16 as the blunt weapon which pulls down the protocol and, in the disarray which follows, everything gets pushed back to ground zero.

Then the fear is that, if no checks are being carried out, the spotlight falls back on the land border, or even a Celtic Sea border, where island of Ireland goods would be checked before entering the rest of the single market.

Frost has frequently denied this is the UK’s intention. But in the wings there are plenty of commentators urging him to turn back the clock to undo the great injustice.

"As I said to Theresa May back in 2017," wrote the former Brexit Secretary David Davis in the Daily Telegraph on Wednesday, "this goes to the heart of the whole Brexit argument: it is a matter of sovereignty. While progress on trade can be welcomed, ultimately a palatable Brexit won't have been achieved until Northern Ireland is no longer subject to EU law."

But would Johnson risk a major conflagration with the EU when, despite fuel shortages, supply chain issues, and swirling criticism over his Covid policies, he remains unassailable? The political space for Labour has been squeezed, and Keir Starmer can barely land a glove.

British Labour Party leader Keir Starmer

"I get it that [the Northern Ireland Protocol] puts Starmer in a difficult position," says Paul McGrade, senior counsel with Lexington, a consultancy. "They like this kind of narrative of, it's us against them and whose side are you on? But they don’t need to do it. And they certainly don't need to do it now. It unleashes a lot of stuff that you can’t control over time"

Perhaps there is a medium term calculation.

If Johnson wants a long term campaign to hollow out the protocol so that it cannot function, he has only until May.

If a clear majority of pro-protocol MLAs is returned in the Northern Ireland Assembly elections, then his claims of a monstrous entity being imposed on people there, against their democratic wishes, will be groundless.

Such an electoral outcome is by no means guaranteed, but Maros Šefcovic’s proposals this week give it a better chance. That poses a challenge to unionism.

"At a certain point not too far away," says an industry source closely involved in monitoring the protocol, "there won't be any commercial unionism to save, because companies will all have made their practical commercial arrangements to deliver within the protocol. Most have already done so."

What will the EU do if London triggers Article 16?

London may be calculating that Brussels will not, when it comes to it, launch a trade war over a far flung patch of European territory that would force a company like Nissan to question its continued investment in the UK.

However, if the UK goes for the nuclear option because of the ECJ, then the conclusion in capitals will be that this is down to pure Brexit ideology.

The European Commission has been looking at options, but they have remained under cover since the EU officially regards Article 16 as a hypothetical scenario.

But a number of capitals, Berlin and Paris included, privately believe that the Trade and Cooperation Agreement (TCA) provides a better retaliatory response than the Withdrawal Agreement.

"The TCA gives us a much more intricate web of pressure points," says one diplomat.

The UK will dispute this and a period of legal uncertainty would certainly follow.

But if a trade war is triggered, diplomats say the EU would have the option of targeted measures against sensitive UK sectors in the same way that Brussels slapped tariffs on Harley Davidson motorbikes in order to influence Michigan senators after Donald Trump’s steel and aluminium trade measures.

These are still in the realm of private conversations, but when briefed EU ambassadors on Wednesday, a majority of member states were of the view that the EU should prepare for all eventualities should the UK reject the package and trigger Article 16.

Above all, member states are tired of the protocol and Brexit, but they are also tired of what they see as British bad faith.

"A number of countries, Greece in particular, and Romania, were making the point," says one source present at the meeting, "that there have been repeated compromises, repeated efforts by the EU to solve this and the UK keeps coming back looking for more.

"When is this going to end? This is the final throw of the dice. We are at the limit."