EU struggling to make legal sense of May's Irish pledges, say officials

In a deal agreed in December to unlock divorce talks, prime minister Theresa May guaranteed no hard border will re-emerge on the island of Ireland after Brexit, through a series of cascading solutions. As a fall-back option, May agreed Northern Ireland will play by the same EU rules that apply in the south if all else fails.

Ireland, backed by the EU, wants detail underpinning those pledges included in the withdrawal agreement that will formalise the terms of Britain's exit from the bloc. 

Problems are emerging in the drafting process even before the document goes to the UK for negotiation, according to two people familiar with the matter, who asked not to be identified because the efforts are ongoing. Officials have made at least two failed efforts to come up with suitable language to meet Irish and European concerns, according to one person.

The Irish foreign ministry and the European Commission declined to comment.

The UK has always argued that the close trading relationship it hopes to keep with the EU after Brexit would allow for a soft border between Northern Ireland and Ireland -- the UK's post-Brexit land border with the EU. But the legal details of the future relationship will be dealt with in a separate agreement that won’t be drafted until long after the withdrawal deal needs to be inked.

Part of the problem lies in trying to figure out how much of the EU's vast body of law needs to be incorporated, the people said. May's rule alignment promise may need to cover as many as 60 different areas, ranging from agriculture to energy and include proposed rules on how much state aid the UK can provide Northern Irish firms, an official said.

And there are more issues vexing European officials, though they may be left until discussions on the future relationship with the UK begin in earnest. Policing the agreement is an issue: one possible solution involves giving the European Court of Justice an indefinite role in deciding if Northern Irish firms are sticking to EU rules.

That would anger the pro-British Democratic Unionist Party that props up May’s government. She has promised the DUP to avoid barriers between Northern Ireland and the rest of the UK.

Commission officials maintain that means there will have to be some sort of border checks in Ireland, to prevent non-EU goods flowing through Northern Ireland into the bloc, as long as the UK proceeds with its plans to exit the customs union.

The bloc's top agriculture official, Phil Hogan, said in Dublin last week that a border in Ireland is inevitable if the UK leaves the customs union, according to the Irish Times.