A thread on Article 5 of the Northern Ireland Protocol. This is the provision that governs what rules must be applied to goods entering NI from Great Britain (or from other non EU countries). 
Article 5 is (perhaps deliberately) deceptively drafted. Art 5(1) is, at first blush, the general rule:
it provides that no customs duties are payable of goods brought into NI from GB and that when third country goods arrive in Northern Ireland, UK tariffs are
payable.
it provides that no customs duties are payable of goods brought into NI from GB and that when third country goods arrive in Northern Ireland, UK tariffs are
payable.
However, what is drafted so as to appear to a casual reader to be an exception to that general rule (“unless that good is at risk of subsequently being moved into the Union”) turns out, on analysis, to be the general rule.
That is because Art 5(2) provides that any good brought into Northern Ireland “from outside the Union” (i.e.from third countries or from GB) shall be considered to be “at risk of subsequently being moved into the Union” unless
it is “established” (i.e. *proved*) both:
it is “established” (i.e. *proved*) both:
(a) that it is not going to be subject to commercial processing in NI (a term that is very widely defined – it includes “any alteration of goods, and transformation of goods in
any way, or any subjecting of goods to operations other than [certain listed operations]”); *and*
any way, or any subjecting of goods to operations other than [certain listed operations]”); *and*
(b) that it fulfils further criteria to be laid down by the Joint Committee.
On (b) the JC has a very wide
discretion to impose criteria, the only limitation being that it has to “take into account”
certain listed factors (final destination and use; nature and value; nature of the movement;
and the risk of undeclared onward movement into the Union).
discretion to impose criteria, the only limitation being that it has to “take into account”
certain listed factors (final destination and use; nature and value; nature of the movement;
and the risk of undeclared onward movement into the Union).
These provisions expand the ambit of the rule labelled “at risk
of subsequently being moved into the Union” to include a wide range of goods whether or not, in reality, they are at risk of onward
movement.
of subsequently being moved into the Union” to include a wide range of goods whether or not, in reality, they are at risk of onward
movement.
For example, flour and sugar imported from GB by a small bakery in Belfast would fall into that category even if in reality there was no risk that any of its bread and cakes were ever carried into Ireland or elsewhere in the EU.
If an importer cannot prove that goods imported from GB fall outside the (widely defined) “at risk” category, the Art 5(3) applies. That Article first refers (though, coyly, without naming it as such) to the Union Customs Code (Reg 952/2013):
and the reference to Art 5(2) of the Code is in fact, when chased down, a reference to the *full panoply of EU customs legislation* (checks/formalities/tariffs: the lot).
So the position, in all cases where the importer from GB cannot jump the hoops it is required to jump in order to avoid the “at risk” category, is that the full panoply of EU customs law applies: the Union Customs Code and all other EU customs legislation.
Further, by Art 5(4) and Annex 2 paragraph 5, all EU trade remedies law and trade defence
instruments made by the EU (anti-dumping duties and countervailing measures) apply to *any* import from GB or elsewhere outside the EU. Those duties can be very high indeed.
instruments made by the EU (anti-dumping duties and countervailing measures) apply to *any* import from GB or elsewhere outside the EU. Those duties can be very high indeed.
Checks will be needed to ensure that such goods are not smuggled into NI without paying duty.
Moreover, that legislation has to be applied by the UK government as interpreted by the European Court of Justice and subject to the Commission’s powers of enforcement (see Art 12).
UK courts - including the NI courts - are bound by section 7A of the Withdrawal Act (inserted by Johnson’s Withdrawal Agreement Act) to give these provisions direct effect; to follow ECJ rulings; and to order the UK government to implement its obligations under the Protocol.
Unless section 7A is expressly amended (and to do so would breach Article 4 of the Withdrawal Agreement) the NI Protocol overrides any contrary provision of UK law.
Finally, Art 5(6) allows the UK to reimburse tariffs paid by NI importers. But that is subject to Art 10: the EU State aid rules.
Unless the reimbursement is less than €200K over 3 years (de minimis), any such aid would be subject to clearance by the Commission.
All of this is clear in law (if not to a casual reader).
Bear it in mind when hearing any discussion of whether the Government - which agreed all of these provisions in a binding international agreement and incorporated them into UK law - has any option not to impose checks on GB to NI trade.
Oh - and see
