This technical note on the implementation of the Protocol on Ireland / Northern Ireland. It allows global trade professionals with an interest in the customs and global trade provisions for NI after Brexit to study the key rules in less than 10 minutes rather than spending hours reading through legislation. The information below helps prepares memos, briefings and presentations faster than doing it alone.
Application from 1 January 2021
The Protocol on Ireland / Northern Ireland, which forms an integral part of the Withdrawal Agreement concluded by the European Union and the United Kingdom, will become fully applicable at the end of the transition period. Unless that period is extended in accordance with Article 132 of the Withdrawal Agreement, the Protocol will thus become fully applicable on 1 January 2021.
Customs territory of the United Kingdom
The Protocol makes it clear that Northern Ireland is part of the customs territory of the United Kingdom. (Article 4).
The Union Customs Code and the EU Tariff will apply to NI
The United Kingdom has committed to applying the Union Customs Code formalities and the EU customs tariff in respect of all goods entering NI from either a third country or Great Britain. The United Kingdom has also committed to applying the relevant Union Customs Code formalities in respect of all goods leaving Northern Ireland to either a third country or Great Britain.
EU Customs legislation as defined in the Union Customs Code (UCC) will apply to NI.
That is the entire body of legislation:
the UCC and the provisions supplementing or implementing it adopted at Union or national level;
the Common Customs Tariff;
the legislation setting up a Union system of reliefs from customs duty;
international agreements containing customs provisions, insofar as they are applicable in the Union.
There are some exemptions for fish caught by vessels with UK flags.
Prohibitions and restrictions
The United Kingdom has committed to applying in Northern Ireland the provisions of Union law listed in Annex 2 to the Protocol relating to other prohibitions and restrictions.
This implies that:
all goods entering Northern Ireland from either a third country or Great Britain are subject to prohibitions and restrictions applicable to imports under relevant Union law; and
all goods leaving Northern Ireland to either a third country or Great Britain are subject to prohibitions and restrictions applicable to exports under relevant Union law.
NI goods gain preferential access
NI will be included in Free Trade Agreements (or other) concluded with third countries,
Goods produced in Northern Ireland can gain preferential access to that third country’s market on the same terms as goods produced in other parts of the United Kingdom.
NI is included in the territorial scope of its Schedules of Concessions annexed to the General Agreement on Tariffs and Trade 1994 (WTO)
NI Goods = UK Goods
A product originating from Northern Ireland originates from the United Kingdom when placed on the market in Great Britain. The law of the United Kingdom regulates the placing on the market in other parts of the United Kingdom of goods from Northern Ireland that comply with or benefit from technical regulations, assessments, registrations, certificates, approvals or authorisations governed by provisions of Union law referred to in Annex 2 to the Protocol.
GB -> NI: No customs duty if three conditions are met
Article 5 of the Protocol is about Customs, movement of goods. It states that no customs duties has to be paid if a good is brought into NI from another part of the UK.
There are three conditions that need to be ensured:
1. Goods have to move by direct transport from GB to NI
2. There can be no risk of subsequently being moved into the Union,
3. This also applied if these goods are forming part of another good following processing.
GB Customs Duty only if no risk of entry into EU Single Market The customs duties applicable in the United Kingdom apply only unit goods are at risk of subsequently, being moved into the EU, "whether by itself or forming part of another good following processing".
Two criteria to fulfil to determine if a good is at risk
A good brought into NI from outside the EU (for example from the UK) is at risk of coming to the EU if
(a) commercial processing will not take place in Northern Ireland; and (b) fulfils the criteria established by the Joint Committee
What does "commercial processing" mean?
‘Processing’ means any alteration of goods, any transformation of goods in any way, or any subjecting of goods to operations other than for the purpose of preserving them in good condition or for adding or affixing marks, labels, seals or any other documentation to ensure compliance with any specific requirements.
Exceptions to the definition of "commercial processing"
Before the end of the transition period, the Joint Committee must decide the conditions under which processing is considered to me not covered by the above definition, taking into account, in particular, the nature, scale and result of the processing.
Criteria for goods NOT at risk of entering the EU Before the end of the transition period, the Joint Committee must say what are the criteria for considering that a good brought into NI from outside the EU is not at risk of subsequently being moved into the Union. The Joint Committee shall take into consideration, inter alia:
the final destination and use of the good;
the nature and value of the good;
the nature of the movement; and
the incentive for undeclared onward-movement into the Union, in particular, incentives resulting from the duties payable pursuant to paragraph
The Joint Committee shall have regard to the specific circumstances in NI.
Sanitary and phytosanitary requirements
From the end of the transition period, the United Kingdom has committed to apply in Northern Ireland the provisions of Union law listed in Annex 2 to the Protocol relating to sanitary and phytosanitary (SPS) requirements.
This implies that:
domestic production in Northern Ireland must comply with EU SPS requirements; and
animals, plants, and their products entering Northern Ireland from either a third country or Great Britain must comply with EU SPS requirements and be subject to official controls as prescribed by EU law.
In order to prepare in particular for the application of official controls on animals, plants, and their products entering Northern Ireland from Great Britain, the United Kingdom should clarify whether it intends to designate additional posts for the performance of official controls in Northern Ireland (e.g., Larne port), given that importation of goods subject to official controls is only possible through such posts.
No entry point for live animals and for products on animal origin
If only the currently existing posts are maintained, as of the end of the transition period there will be no entry point solution in Northern Ireland for live animals and for products of animal origin if they are unpacked or if they are preserved at ambient or chilled temperature, implying a significant risk of disruption of the trade flows entering Northern Ireland.
Article 30 and 110 TFEU apply
in respect of Northern Ireland.
What are those?
CUSTOMS: Article 30 Customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States. This prohibition shall also apply to customs duties of a fiscal nature.
TAX: Article 110 No Member State shall impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products.
Quantitative restrictions on exports and imports shall be prohibited between the Union and Northern Ireland.
No need to pay it back. You are free to make exceptions.
Customs duties levied by the UK when they apply the EU Customs tariff and collect any duty do not need to be sent back to the EU. The UK can also make it easier for UK business not to pay any duty at all when entering NI by
reimbursing duties levied providing for circumstances in which a customs debt which has arisen is to be waived
provide for circumstances in which customs duties are to be reimbursed in respect of goods that can be shown not to have entered the Union; and
compensate undertakings to offset the impact of the application levying duties.
No value - no duty
No duties need to be paid for consignments of negligible value, on consignments sent by one individual to another or on goods contained in travellers’ personal baggage,
The United Kingdom has committed to apply in Northern Ireland the provisions of Union law listed in Annex 2 to the Protocol relating to product legislation and other regulatory requirements.
This implies that:
goods placed on the market in Northern Ireland must comply with EU product legislation / other regulatory requirements; and
goods entering Northern Ireland from either a third country or Great Britain must comply with EU product legislation / other regulatory requirements and must be subject to risk-based checks and controls as prescribed by Union law.
In addition, the United Kingdom must identify the market surveillance authorities as referred to in Article 17 of Regulation (EC) No 765/2008 in respect of Northern Ireland.
Market surveillance’ refers to the activities carried out and measures taken by public authorities to ensure that products comply with the requirements set out in the relevant EU harmonisation legislation and do not endanger health, safety or any other aspect of public interest protection.
Only certain technical regulations, assessments, registrations, certificates, approvals and authorisations issued or carried out by NI / UK authorities are recognized. by the EU.
This is where they require an inspection of the sites, installations or premises. Veterinary certificates or official labels for plant reproductive material can also be accepted if they are required by EU law. Any conformity marking, logo or similar required shall be accompanied by the indication ‘UK(NI)’
Which rules apply when placing products onto the NI market?
Placing goods on the market in Northern Ireland is ruled by the law of the United Kingdom as well as, as regards goods imported from the EU, by Articles 34 and 36 TFEU.
Article 34: Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.
Article 36 The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between the Member States.
What EU law applies in Northern Ireland as regards products3?
the many laws listed in Annex 2 of the Protocol
Markings, labelling, tags, or by any other means, for NI
‘United Kingdom (Northern Ireland)’.
Where a numeric code is needed, the United Kingdom in respect of Northern Ireland shall be indicated with a distinguishable numeric code.
The UK’s Approach to the Northern Ireland Protocol
On 20 May, the UK published a command paper which sets out how the UK will meet its obligations under the Northern Ireland Protocol, described above. The UK wants to
Uphold Northern Ireland’s place in the UK and respecting the Belfast (Good Friday) Agreement
Grant Businesses in Northern Ireland will have unfettered access to the rest the UK market
No tariffs on goods remaining within the UK customs territory, and no new customs infrastructure
Northern Ireland businesses will be able to benefit from the new free trade agreements that the UK will strike with countries around the world.
About the Command Paper
The command paper outlines how the protocol can be implemented in a pragmatic, proportionate way. It makes clear that the UK Government’s priority will remain strengthening Northern Ireland’s place in the United Kingdom, and above all, preserving the huge gains from the peace process and the Belfast (Good Friday) Agreement.
The paper also sets out four key commitments that will underpin the UK Government’s approach to implementing the Protocol:
There will be unfettered access for Northern Ireland’s producers to the whole of the UK market and this will be delivered through legislation by the end of the year.
No tariffs will be paid on goods that move and remain within the UK customs territory
Implementation of the Protocol will not involve new customs infrastructure - with any processes on goods moving from Great Britain to Northern Ireland kept to an absolute minimum so that the integrity and smooth functioning of the UK internal market is protected.
Northern Ireland’s businesses will benefit from the lower tariffs delivered through our new Free Trade Agreements with countries like the United States, Australia, New Zealand and Japan - ensuring Northern Ireland firms will be able to enjoy the full benefits of the unique access they have to the GB and EU markets.
As set out in the paper, the Protocol will only remain in force as long as the people of Northern Ireland want it to. Democratically elected institutions in Northern Ireland will decide whether to extend or end the arrangements in a consent vote that can take place every four years, with the first vote taking place in 2024.
Chancellor of the Duchy of Lancaster Michael Gove said:
At the heart of our proposals is a consensual, pragmatic approach that will protect the Belfast (Good Friday) Agreement and the huge gains from the peace process. Implementing the protocol in this way will ensure we can support businesses and citizens, and protect Northern Ireland’s place in the UK’s customs territory while upholding our commitments to the EU’s Single Market. Northern Ireland will benefit fully from its access to the UK and EU markets. The whole of the United Kingdom will be able to capitalise on the opportunities that will come from forging our own path and striking new free trade agreements with countries around the world.
The Secretary of State for Northern Ireland, the Rt Hon Brandon Lewis CBE MP, said:
The UK Government’s top priority is to protect the huge gains of the Northern Ireland peace process and as a new chapter opens in the United Kingdom’s relationship with the European Union, we are committed to ensuring prosperity and opportunity for all communities in Northern Ireland. These proposals will implement the Protocol in a flexible, proportionate and sensitive way – while protecting the interests of both the whole of the UK and the EU. Our approach represents a practical way of implementing the Protocol while making sure that businesses in Northern Ireland can take full advantage of the opportunities presented as the United Kingdom begins to forge new trade links across the globe.