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23rd Jan 2022

EU-UK impasse on top court in post-Brexit customs talks

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Talks between EU and UK officials on how to resolve the post-Brexit trade issues over Northern Ireland will resume on Tuesday (26 October) in London.

"We have been engaging constructively and intensively with our UK counterparts, those discussions will continue in London this week," a commission spokesperson said.

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UK Brexit minister David Frost and EU Commission vice-president Maroš Šefčovič, charged with leading the EU's post-Brexit team, are expected to meet at the end of the week at Westminster.

Two weeks ago the commission presented new proposals on how to ease bureaucracy and trade barriers between Northern Ireland, which has remained part of the bloc's single market for goods, and mainland Great Britain to smooth tensions.

Unionist politicians in Northern Ireland say the current arrangement, which the London government agreed to, undermines the province's place within the UK.

The proposals were not a "take it or leave it" offer, the commission said at the time, merely a start of talks.

Over the weekend, UK prime minister Boris Johnson's office said the talks were constructive.

"But the reality is that we are still far apart on the big issues, especially governance," the PM's office said in a statement.

The London government objects to the role played by the EU's top court in policing the deal, being the final interpreter of EU rules.

However, the EU has been adamant that EU rules - applicable for the single market - should only be interpreted by the European Court of Justice (ECJ).

One way out of the conundrum could be the so-called "Swiss-model" of agreeing set up an arbitration panel to deal with disagreements about the protocol governing the relationship with Northern Ireland, with the ECJ retaining a role to interpret questions of EU law.

Politically, this remains may be the trickiest part for London to agree, as the Johnson government insists on getting rid of European court oversight.

Over the weekend Johnson reiterated his threat to unilaterally suspend parts of the Northern Ireland protocol.

"Whether we're able to establish that momentum soon will help us determine if we can bridge the gap or if we need to use Article 16," the PM's office statement added.

Article 16 is the part of the deal which allows for the temporary suspension on both sides.

However, if one side uses Article 16, the other can take "proportionate rebalancing measures", according to the deal.

The EU could weigh terminating the post-Brexit trade deal if the UK government triggers Article 16, Bloomberg reported on Monday.

The decision would need the backing of all 27 EU governments and would lead to a cooling-off period before tariffs, quotas and other trade would kick in between the EU and the UK.

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