This evening, Michel Barnier said the EU was ready to offer Britain a unilateral exit from the customs union while maintaining the other elements of the backstop.
The EU's chief negotiator made the comments in a thread on Twitter.
5/5 The EU will continue working intensively over the coming days to ensure that the UK leaves the EU with an agreement.— Michel Barnier (@MichelBarnier) March 8, 2019
Here is RTÉ's Europe Editor Tony Connelly's assessment of what Barnier had to say:
1. This essentially going back to the NI-specific backstop: ie, if it really wants to, the UK can leave the Single Customs Territory, but NI would remain. "The other elements of the backstop must be maintained to avoid a hard border"
2. This is all already contained in the WA [Withdrawal Agreement] - "The provisions of this Protocol shall apply unless and until they are superseded, in whole or in part, by a subsequent agreement"
3. "in whole or in part" is the key phrase. "It's basically going back to the old backstop" says an EU official
4. The other offer, ie a suspension of the backstop, is also already in the WA. "The arbitration already has all these features. We've just given it more ammo," says the official
5. The arbitration panel remains the same and remains under the same obligations under the Governance part of the WA. ie, if there is EU competence, it needs a legally binding opinion from the ECJ.
6. In other words, if the EU doesn't fulfill its best endeavours obligation then the UK can seek arbitration. This is spelled out in the Tusk Juncker letter - now Barnier is saying this can be converted into a binding Joint Interpretative Statement
7. If the EU doesn't engage in alternatives to the backstop, that is actionable through panel. If it's about the EU rejecting alternative arrangements because it doesn't protect the single market then the panel would have to seek binding opinion from the ECJ.
8. Barnier's offer is essentially defensive in nature and a response to the blame game from the UK side. Also, May's speech this afternoon has gone down badly. Sources suggest Barnier's position was supported by member states when he briefed EU ambassadors this afternoon.
9. "The mood has been pretty dark. People had open minds but asking themselves if we were in for a simple statement that the talks had failed, or wd Barnier say we're making progress, or, we'll have to keep working on it, but within the mandate [ie, not reopening the WA]
10. Not sure how this changes this - obviously a big challenge for the DUP since the Single Customs Territory was designed by the UK to keep them on board, as it removed the need for a customs border on the Irish Sea.
11. Am told there are no immediate plans for further talks, but that could change. All eyes still on Monday morning for a possible deal. But....
Am told there are no immediate plans for further talks, but that could change. All eyes still on Monday morning for a possible deal. But....— Tony Connelly (@tconnellyRTE) March 8, 2019