France and Germany fear the EU’s proposal to break the deadlock over the Northern Ireland Protocol could threaten the Single Market because of the dramatically reduced number of customs controls.
Their concerns mean the influential capitals could eventually tie the hands of Maros Sefcovic, the EU’s Brexit negotiator, and limit his ability to compromise in the negotiations, which begin on Friday in Brussels.
Paris and Berlin are spearheading a group calling for plans to prepare counter-measures in case talks fail and Britain triggers Article 16 to unilaterally suspend the protocol, which would leave another opening in the EU internal market. These are understood to include legal action and potentially trade tariffs.
Their fears emerged ahead of the opening round of talks over the implementation of the post-Brexit border fix between Mr Sefcovic and Lord Frost, which will take place over lunch at the European Commission’s Berlaymont headquarters.
The European Commission vice-president has unveiled plans to scrap the majority of checks on British goods crossing into the province under a revised Northern Ireland Protocol.
He offered to reduce checks on food and plant products by up to 80 percent and customs customs paperwork by half, as well as to tweak the bloc’s rules to protect supplies of British-sourced medicines to the region.
European sources told The Telegraph that while member states overwhelmingly back the compromise, attitudes could soon shift if it doesn’t lead to a deal quickly.
It is understood that Emmanuel Macron is poised to squash further concessions because he would not want to be seen to go soft on the UK too close to next April’s French elections, prompting warnings Britain needs to clinch an agreement as soon as possible.
Despite the UK rowing back from threats to trigger Article 16 to create space for negotiations, EU diplomats insisted they are primed to respond to any attempts to blow up the Brexit deal. A source said: “It's important that London doesn't underestimate the EU's resolve to react quickly and effectively to such a move.”
An EU diplomat added: “This is the time to do a deal. The closer we get to the French elections, the harder it will be for the Commission to offer compromises.”
A number of internal issues across the bloc, such as soaring energy prices and the threat of “Polexit”, means there is little appetite to consider further British demands over the Brexit arrangements.
'Brexit is a nuisance. Nobody wants to talk about it'
A second diplomat said: “Brexit is a nuisance. Nobody wants to talk about Brexit. Nobody has the time and space to consider it.
“Britain has won the boredom war. It has shown it has capacity to endure more boredom than Brussels, which is no mean feat.”
A lack of willingness to engage in Brexit has enabled the Commission to table the package of concessions, which Government sources believe went further than what was expected of the bloc.
João Vale de Almeida, the EU’s ambassador to the UK, said Brussels had gone the “extra mile” to address trade disruptions caused by the protocol, prompting fears Northern Ireland could become a smuggling route into the bloc.
However, there remains stark differences over the role of the European Court of Justice in policing the implementation of EU rules in the province.
Lord Frost, the Brexit minister, has called for the EU to agree to an international arbitration panel to rule on disputes rather than European judges, but diplomats insisted the bloc would not consider shelving the EU court’s oversight of the arrangements.
Thomas Byrne, Ireland’s Europe minister, said the role of the ECJ is non-negotiable, adding: “The European Court of Justice goes with the Single Market of the European Union, Northern Ireland is part of the Single Market for goods of the European Union... One goes with the other.”
Mr Sefcovic insisted EU judges have “no impact on the constitutional status of Northern Ireland” and warned he has “no mandate to renegotiate the protocol”.
He added: “I do not see how we can have access to the Single Market without oversight from the European Court of Justice.”
He said he hoped to wrap up talks “before the end of the year”, allowing both sides to start 2022 with a “positive new EU-UK agenda”.
Despite tensions over the Luxembourg-based court, Britain has vowed to work “positively and constructively” with the EU to find a deal.
A government spokesman added: “We welcome the considerable effort made by vice- president Sefcovic and his team to address the issues that have arisen on the Protocol.”