European Union judges will continue to have jurisdiction over Northern Ireland under the new Brexit deal bordering the Irish Sea, Brussels told EU capitals Wednesday morning.
The European Commission signaled to 27 EU ambassadors meeting in the Belgian capital that it had not backed down before the bloc’s highest court, despite reports it had.
The Times reported that the committee had agreed that the European Court of Justice could only rule on cases if they were referred to it by Northern Ireland courts, rather than taking cases directly to court.
EU sources ruled this out and warned that the Court’s continued supremacy in Northern Ireland was a red line for EU capitals including Paris and Berlin.
“The idea that there is a deal or a breakthrough is nonsense,” an EU diplomat told the Telegraph, and the compromise suggested by the Court of Justice is not a starting point.
“That’s not true,” said another source, while a third dismissed it as “kite flying.” A quarter also strongly rejected the claims.
Asked about the protocol talks in Brussels, Ursula von der Leyen, the president of the European Commission declined to be drawn on the details of the negotiations.
“I have a very trusting and excellent relationship with the Prime Minister. On several occasions we also spoke about the issue of the Protocol,” he told reporters.
“Our teams are working together to find ways to ultimately have a common framework implementation. I can’t provide partial elements because you never know what the package will look like in the end. But as I said, these are very constructive talks.”
The commission told ambassadors it was keeping tabs on the details of the negotiations to avoid leaks. He was confident that the source of this leak was in London rather than European capitals.
Westminster ‘tests the waters’
“Is this Westminster testing the waters towards Belfast and the DUP or are they trying to exploit negotiations with Brussels?” said a member state diplomat.
There has been a more constructive attitude towards the negotiations from the UK than in the past, a senior EU official told reporters.
But there is still much to agree between the two sides, with talks continuing on the role of the Court of Justice, state aid, VAT rules and an agreement on animal and plant health rules.
It is understood that a deal on customs is close, but negotiations are still needed on how the proposed “red and green” lanes for goods destined for Northern Ireland only will work.
British sources have also played down suggestions that a protocol deal is on the way. Significant gaps are believed to remain between the two sides.
“Intensive Scope Talks”
A Foreign Ministry source suggested the deal report was speculative and said officials were still engaged in “intensive talks” with Brussels.
Ending the ECJ’s supremacy in the country was a key British demand, but Rishi Sunak appears to have accepted that a remote role may be needed for the court, which could anger Brexiteer backbenchers.
British officials have indicated that the UK could accept a continued but reduced role for the Court of Justice in Northern Ireland.
Two weeks ago, the Telegraph reported that UK negotiators wanted to insert a layer of safeguards to prevent the commission from referring disputes directly to the Court of Justice, but would accept it being the final arbiter of EU law in the province. .
In the event of a dispute, it would be the Commission that would refer the United Kingdom to the Court of Justice and not the courts of Northern Ireland. But before that happened, the UK and the EU would have discussed the problem and tried to resolve it before it got to that point.
This too would be a difficult concession to sell to the Commission in EU capitals.
“We’re not on the finishing straight”
One possible solution to breaking the impasse on phytosanitary and animal controls could involve Brussels and Great Britain extending the current grace periods under the Protocol for a number of years.
But this would be seen as a less than ideal compromise as both sides have been pushing for a “lasting solution”.
“If you take small steps you finish the marathon but we are not in the finishing straight”, said the EU diplomat, “That said, things could move quickly if the political will is there”.
While both London and Brussels insist there is no hard deadline for talks on the Protocol, both would prefer a deal before the Good Friday Agreement’s 25th anniversary celebrations in April.
Hopefully any deal will be enough to convince the DUP to end Stormont’s boycott of the Protocol.
The DUP has not called for the end of the jurisdiction of the Court of Justice in its seven tests for the reformed Protocol.
However, European Research Group MPs say the DUP’s call for the removal of the Irish Sea border implies an end to the supremacy of the Luxembourg court.