This is excellent. A must read for all who want to understand the Facilitated Customs Arrangement.
I’d add that the FCA also requires a common rulebook and interpretation of customs classification/rule of origin issues. That requires a system under which the U.K. courts apply the EU’s classification rules (and interprets the same way as the ECJ).
I’m unconvinced that the joint arbitration model proposed for the goods rulebook can work here. It’s simply too delayed if a divergence occurs.
Assume that the U.K. Upper Tribunal rules that good G is classified as X, with a zero tariff. But the ECJ then decides that good G is a Y, with a 20% tariff.
Until U.K. law is brought round (and the Upper Tribunal would bind HMRC and the First-tier Tribunal until it is) anyone importing Gs into the EU will do so via the U.K.
They will pay zero tariffs at the U.K. border and send the goods off to the EU (over the frictionless border that all this is designed to achieve).
The EU could not possibly permit that. So it will have to insist that the usual EU rules that keep national courts tied to the ECJ’s interpretation apply: allowing the UT to make a binding reference to the ECJ, & that ECJ judgments overrule inconsistent national rules/practices.
That isn’t, as far as I can see, an easy sell to the ERG hawks. But it seems to me to be essential if this is going to work.
