The two most interesting things to watch out for in Lord Frost's speech on the NI Protocol today will be:
1. Does the UK set out its view of when it is legitimate for it to invoke Article 16?

Most people, including myself, think that this will most likely be the "trade diversion" condition in Article 16.
However, zooming in on "trade diversion" would risk undermining its Article 16 case, if the UK seeks to use its opposition to the ECJ as the main grounds for rejecting the EU's proposed changes to the Protocol.
2. Does the UK reject *any* role for the ECJ, or does it reject *Article 12* specifically?

This is important. Article 12 of the Protocol is an exceptionally broad clause that provides for the role of EU institutions in the Protocol, including the ECJ.
Note that in the July Command Paper, the language on governance was very carefully worded. It referred specifically to Articles 12(4)-(7) and didn't reject *any* role for the ECJ in dispute settlement procedures. Image
Rejecting Article 12 doesn't equate to closing the possibility for *any* role for the ECJ.

As I said previously, there could be a narrower role for the ECJ than Article 12, akin to what UK signed up to in the Political Declaration. This would keep the door open for a compromise. Image
My view is that this is entirely possible within the bounds of the text that the UK outlined in the Command Paper.

I've previously tweeted about what this solution would look like: dock into the WA dispute settlement process/Swiss IFA-like process. Image

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More from @AntonSpisak

14 Oct
Having taken a bit of time to read through the EU's N Ireland proposals, here're some reflections on what they mean, what it means for the future of the Protocol, and where we're heading in wider UK-EU relations.

(A thread)
Before I get to practical and tactical considerations, there's an important "philosophical" point to make first. These proposals are significant because they move us away from general application of EU rules to NI to a world where aspects of EU law can be exempted for NI. /2
This is a big shift for the EU. The Commission had previously insisted that it operated in a constrained space where "bespoke ideas" weren't mostly possible. So, yes, the EU did move, on the point of principle, and that is important. /3
Read 24 tweets
10 Oct
There’s a clear landing zone on the ECJ issue in the NI Protocol, which I tweeted about yesterday. The problem, as ever, is politics: the Commission conceding on this fundamental point would signal to the UK its readiness to fundamentally alter the Protocol. /1
This is the landing zone which I floated previously. Replace Art 12 of the Protocol on the role of EU institutions with the text from the EU-Swiss IFA, to which the EU had previously agreed in a context of applying EU law in a third country. /2
However, such changes would require a bigger discussion among the EU27. It’s hard to see how this can be done now when a) there’s a serious trust deficit in the relationship with UK and b) Poland openly threatens to undermine fundamental principles of EU law and the ECJ. /3
Read 6 tweets
9 Oct
Big news from the Czech Republic where Andrej Babis is set to lose the parliamentary election. The coalition Spolu and the Czech Pirates/Stan likely to form the next coalition government, ending the last 7 years in which Babis was in government. ImageImage
It’s not just about Babis narrowly escaping the first place, but also that the Czech social democrats (CSSD) and the communists will not pass the 5 percent threshold, meaning that they won’t be able to enter Parliament and be Babis’ potential coalition partners.
It’s also the first time in over 30 years - since the 1989 Velvet Revolution - that the communist party will not be in the Czech Parliament. Its share of vote was usually around 10+%, but this time the party failed to meet the necessary threshold.
Read 6 tweets
9 Oct
Interesting thread by @Mij_Europe on the EU’s NI Protocol offer.

On the ECJ specifically, I worry that this will basically bomb the whole thing (even though it really shouldn’t). /1
True, the UK has asked for the impossible on governance. But — please stay with me — there’re easy concessions that the Commission can give to the UK, both on the ECJ and on NI involvement in the pre-legislative process (“decision-shaping”). /2
Why do I think those are “easy concessions”? Because not that long ago, the EU gave a more balanced governance offer to Switzerland, in the EU-Switzerland Institutional Framework Agreement negotiations. Exactly of the kind that the UK would want for NI. /3
Read 6 tweets
23 Sep
Excellent piece by @pmdfoster on an important issue which didn’t get enough attention when it was announced a few weeks ago.

I wholly agree that the Govt’s proposals to amend the special status of EU retained law risk creating significant uncertainty. /1
ft.com/content/e5a7c9…
What’s more, it risks a hugely complex domestic legal environment and undermining the Union. True, UK Govt may choose to amend EU-inherited rules as it wishes. But it has to be mindful of the consequences; in many areas the devolved administrations will make their own choices. /2
There’re also some notable constraints on what the UK Govt can, and cannot, do with the EU-derived jurisprudence under the Withdrawal Agreement (and, indeed, the current NI Protocol). It won’t be as straightforward for UK ministers to shake up the system as they may wish. /3
Read 4 tweets
16 Sep
Looking at the list of regulations for reform announced by Lord Frost, most have nothing to do with the EU. So many random ideas, it's as if you asked government departments to come up with any ideas, and as quickly as possible. Embarrassing.
assets.publishing.service.gov.uk/government/upl…
What exactly does the National Underground Asset Register have to do with EU regulations? Image
What about the Geospatial Commission? Image
Read 7 tweets

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