As ever, the EU is exemplar in making its agreed proposals on Brexit instantly available for all to see. ⬇️
The Q&A on its four new proposals gives ample detail for lay onlookers and is a helpful starting point:…
This factsheet gives a series of practical examples of what the changes will accomplish:…
This factsheet is about as pointed as the EU ever gets, and feels like deliberate messaging to the unionist and sovereigntists that it can make a really good case for the Protocol offering some real benefits to NI, given its publication date:…
Here's a direct rebuttal to the UK claim that the Protocol isn't working because the EU is being suuuuper inflexible in implementing it; like the "Sure, Jan" GIF but on border issues:…
And now I'm going to have a look at the actual four-part "non-paper" opening offer, available here:…
NB, the DUP clearly reads faster than I do because they're already said this isn't enough - but then, nothing short of scrapping Protocol ever will be for the DUP, given the corner they've painted themselves in over the last 6 years.

Note: I am going through them in the order of the attachment, but I should make it immediately clear that I am not an expert on the EU Custom's Code and whatever on earth it requires - so my comments will come and go. Onward!
Attachment I is the one on Medicines. I know about medical device regulation and medicine is regulated in a similar way: to get certification for an area, a product needs to be tested IN that area. For GB sellers to NI, that means NI or the EU, under current rules.
The proposal: permanent derogation from that requirement, with GB testing bodies able to certify medications that *stay* in NI. That's a huge cost/difficulty save.

The strings attached: testing bodies gotta apply EU law when testing, and meds can't be sold out of NI.
This doesn't remove costs of Brexit - products for NI still need to be certified in a separate, new way, unless the UK likewise applies that same standard of EU law for products for GB when certified (but that's not Brexit!) - but given sovereignty/EU law: as good as it gets.
The attachment mentions in para 16 that parties will keep exploring how to coordinate this "EU law in NI" and "UK law in GB" situation can be further ameliorated when it comes to packaging and patient information - but there isn't flex there unless UK applies EU law, in my view.
This permanent derogation depends on better UK policing of medicines on the NI market to make sure nothing GB-authorised carries on to the EU (para 13).

How this can be achieved: amendment of EU law, annexed to the Protocol. That's the bulk of #1 (doesn't cover vet medicine).
Attachment II is on SPS issues and starts on a way less cordial note:
What's here then is a start - not an 'end' the way "we'll amend this and that, and that'll be that" Attachment I is, it seems. A quick guess why: the EU Treaties require policing protecting the agricultural internal market. They don't talk medicine. So: this is more 'core'.
There's some "aggressive" (I don't think it is, but some definitely will) underlining of the fact that NI is now in the EU SPS area and GB is not in para 6, and another stress that protecting the internal market here is 'necessary' as per the TFEU.
The proposals the EU is floating: simplified requirements for retail goods (eg food going to supermarkets etc) that are staying in NI, and reduced checks in line with an overall 'risk management' approach, in exchange for a properly manned SPS-checking border on the Irish Sea.
This is subject to a hell of a lot of "howevers", though, and the first one, you can already see is going to be distasteful to anyone wanting a pure Brexit:
In other words: if you're going to keep sending certain food stuffs from GB to NI, in order for us to keep checks low etc we've got to be sure that you are 'producing' those food stuffs in line with our standards, aka, some EU laws.
There's then also labelling requirements to make sure that the GB-produced meat product that is only going to be sold in and not sold onward is effectively tagged with "THIS IS NORTHERN IRISH MEAT!!!" so that it can't be sold on in the EU. Again: to protect single market.
Section 3 then makes it clear that the EU really is REALLY uncomfortable with making this offer (however limited it might look to bystanders) and so there's like 7 different conditions on review, EU oversight, quick end to the derogation, etc etc.
(EU oversight has just reminded me of a ???: we know that Frost has now turned the CJEU into a thing but he's not mentioned the Commission - so is he fine with the first part of an infringement action but not the second? It's okay if the EU polices as long as it doesn't judge?)
And that's it on the detail. Which is not enough to make this workable - this is, if you will, a first serve, and now the UK has to consider if *in principle* there is enough movement here.

Note that anything agricultural produced in GB that is *intended* to go to the EU...
... cannot benefit from this if crossing through Northern Ireland into Ireland, and so would have to go through a separate process that is significantly more onerous (as all products going from GB to the EU via any other route do).

That's Attachment II.
Attachment III is on customs. This is reallllly not my area, I have made it a passion to avoid looking at the EU Custom Code, so I really don't think I'll have much to say here. The basic issue: custom borders come with paperwork & checks and that costs time and money.
This paper starts with a summary of what leaving the EU did to the border and then includes this totally unexpected fatality:
The EU proceeds to set out what it's already done to make customs easier (eg varieties of trusted trader stuff, exempting SMEs, some other stuff) and then carries on with the second "meow":
It's legalese - but it's incredibly direct in what its messaging is, which is "stop pretending like we are not already making exceptions for you, and start coming to the table with concrete issues we can resolve." The UK is being called out hard here.
That suggests to me that, much as was the case for SPS, the EU's internal workings really struggled to agree to provide any further 'flexibility' to management of the customs border. And what they've agreed to is, again, not yet translated into legal detail.
Here's the EU's conditions for *considering* further simplification of how the EU Customs Code applies to the Irish Sea border:
People who think good faith doesn't matter in international relations might want to have a look at that, because the impression I get is that if the EU felt it had more evidence that the UK had been *trying* to implement the Protocol, this list would be much shorter.
There's further conditions - again, on details of what the UK has not done to date under the Protocol and should do, and other signs of what the EU would call "sincere cooperation".

Only after all that do we get to where the EU might be willing to move.
Basically, in para 21 onwards: they're willing to broaden the category of "goods not at risk" that are not meant to be subject to the entirety of the EU Customs Code, and make qualifying for that status simpler, somehow.

No substantive detail - which does make me wonder...
... about the factsheet with the examples cited. What's that based on? The EU's best offer on customs facilitation re NI destined products? Or is it the 'average' outcome/offer? Or what?

(The EU is great at making proposals public. It is also great at playing the PR game.)
The final paragraphs (26 onward) make it clear this will not amend the Protocol, and if there's any issues with 'more simplified goods not at risk' as a process, that process can be terminated by the EU (presumably unilaterally).
Overarching thoughts so far: the EU's offer on medicines is, as far as I can see, very thorough - and not begrudging. The EU's offers on SPS and customs are in a way more 'beta' form - and the institutional unhappiness about going this far is at points tangible.
Whatever its ultimate content insofar as "easing the border", you can see the EU being pushed about as far as it can go on all three of these points. It would be nice if we could believe that HMG would recognize that.
Attachment IV is on what the EU calls "participation". I can be fairly quick on this, as it is what we were all expecting: a reminder to the UK that NI participation in eg the Joint Committee and its sub-committees is *for the UK to sort out*, and an EEA style offer of dialogue.
It's not voting - but then it couldn't be. So what it is is an invitation to come to 'structured dialogue' with EU officials in key areas that are covered under the Protocol (like SPS, customs, etc). It's at the least some *insight* into EU legislative thinking...
... and an ability to point out problems that are NI-specific to anything the Commission etc float. It's as good as it's going to get. And, frankly, it's a little embarrasing for the EU that it needed this kind of escalation to offer EEA style 'input' into EU law-making.
So that's the 4 offers. 2 look ready to go and I cannot imagine any real UK complaints about the medicines setup or increased NI ability to talk to the EU about EU laws. 2 require substantial regeneration of goodwill/trust AND negotiation on the details.
None of the offers, btw, address the role of the CJEU - but as Sefcovic indicated in the speech he gave tonight, that was only mentioned once in discussions with the UK about the Protocol until this week, when it suddenly became the very *heart* of its concerns. /fin
That's wildly incoherent: they'll keep exploring how this situation can be further ameliorated, is what I meant.

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More from @sylviademars

13 Oct
Fly-by analysis of tonight's 4 "non-papers" presented by the EU. I'll copy my general conclusions below this tweet if you aren't interested in lawyerly stream of consciousness blogging.
Read 5 tweets
12 Oct
Even if true (and an 80 seat majority makes it definitely not true), so what? So it regrets signing it? How unfortunate! Doesn't make signing the agreement less the action of a sovereign state, or less legally binding, though, does it!
There is this weird new angle in Brexiteer commentary that suggests that if something were legally acceptable, truly, it cannot have a political or economic power dimension underpinning it. (See also Lord Moylan the other day).

This is based on ... literally nothing at all.
Public international law is on some idealistic level there to 'balance' state relations where there are huge power imbalances, but ... its multilateral rules are effectively set by the most powerful states (negotiations, hey!), so imbalanced and far from neutral.
Read 5 tweets
11 Oct
Would confirm that a trade war would hit both the EU and the UK. Would also suggest that the EU would withstand the unpleasantness better and for much longer. Would finally suggest that if the UK expressly violates an agreement signed last year, reluctant MS will shift on this.
The article itself acknowledges that while France may push for an extreme retaliation and find some resistance, the general feeling in the MS is that financial services adequacy, Horizon research funding, and sensitive sector tariffs are all fair game if the UK ...
... uses the lengthy Art 16 process time to a) suspend key parts of the Protocol and b) trial run a basic "trust based" version of NI-GB trade for the many months it will take for arbitration and EU enforcement to run its course.
Read 8 tweets
10 Oct
I think it's important that those of us who think the UK has no reasonable case to make re Article 16 or a renegotiation (raises hand) do acknowledge that Brexiteers have a point when they say that regardless, the EU is in a very difficult position re the Protocol. 1/
This isn't about "who's right", whether morally or legally, but rather about what room for maneuver there is for each party.

The UK extreme end point is ditching the Protocol and enforcing nothing on the border. Can it do this? 2/
Practically: sure.

Legally: is this an issue under WTO law? Not clear: if it's literally not checking anything moving into NI from IRE, is there any discrimination between WTO members? Or, separately, under any FTAs signed by the UK? 3/
Read 23 tweets
10 Oct
Fair point, also made by @AntonSpisak (where I saw the compromise first floated). I can see why the EU would: if Frost is serious, it's this offer or no Protocol. But I can also see why the EU won't: why trust a bad faith actor when they say *this* role for the CJEU is fine?
I think it's a bit too simplistic to say "well they did it for Switzerland, more or less". a) Switzerland maintains a phys border with the EU and b) Switzerland has had a pretty consistent relationship with the EU on the subject of border enforcement.

The UK will have neither.
Perhaps most importantly re EU goodwill and trust, Switzerland has never agreed to Commission and CJEU oversight in an agreement it signed with the EU only to then not implement that agreement AND demand its governance is immediately renegotiated.
Read 4 tweets
9 Oct
The CJEU doesn't have the role described here under the Protocol. In fact, in practice, it's not had any role to play so far under the Protocol. This is just an infuriating level of inaccuracy to justify rejecting whatever the EU offers.
It oversees whether both the UK and the EU are complying with the EU law they both agreed to follow in the Protocol. The detail of how the Protocol is to be implemented has always been a political issue, to be sorted out in the Joint Committee. If that's proven "inflexible"...
... that has literally nothing to do with the CJEU. The CJEU is there to deal with a situation where party X in either NI or GB or IRE feels that someone isn't complying with the technical EU rules the Protocol applies. So, with the specific EU law. And what it means.
Read 10 tweets

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