Under which conditions can a product from Great Britain qualify to be a product of Northern Ireland (and have no duty payable)? Did you miss it? The UK has published a law that makes it clear(er). We provide a detailed analysis for our valued readers. Let us know your opinion.
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The UK has published the "Definition of Qualifying Northern Ireland Goods (EU Exit)
Regulations 2020". These Regulations establish the definition of “qualifying Northern Ireland goods” under section 8C(6) of the European Union (Withdrawal) Act 2018 (c. 16) which provides that a Minister of the Crown may define “qualifying Northern Ireland goods” by regulations.
Definition of qualifying Northern Ireland goods
For the purposes of the European Union (Withdrawal) Act 2018, “qualifying Northern Ireland goods” means goods which (a) meet or have met the condition at paragraph (2), or (b) are NI processed products.
Condition a: Do you meet the condition of Paragraph 2?
It has that goods must be
already "present" in Northern Ireland and
are not subject to any customs' supervision, restriction or control
The latter must not arise from the goods being taken out of the territory of Northern Ireland or the European Union.
If the product is NOT present then it must be a good processed in NI.
Condition b: Is your product processed goods in NI?
“NI processed products” are goods which
(a) have undergone processing operations carried out in Northern Ireland only, and
(b) incorporate only goods which
(i) were not at the time of processing under any form of customs supervision, restriction or control, or
(ii) have been domestic goods within the meaning of section 33 of the Taxation (Crossborder Trade) Act 2018(a);
What are the processing operations referred to above?
“Processing operations” means any of the following carried out under customs' supervision:
the working of goods, including erecting or assembling them or fitting them to other goods;
the processing of goods;
the repair of goods, including restoring them and putting them in order;
the use of goods which are not to be found in the processed products, but which allow or facilitate the production of those products, even if they are entirely or partially used up in the process;
the usual forms of handling intended to preserve the goods, improve their appearance or marketable quality or otherwise prepare them for distribution or resale; and
any operation on goods intended to ensure their compliance with technical requirements for their release for free circulation in the United Kingdom.
The fact that these processing operations are under customs supervision may mean that they address only goods that are NOT yet in free circulation, aka the GB goods for which EU duty has not yet been paid.
This could mean that to turn GB goods into NI goods and NOT pay customs duty when importing them into NI,
processing operations would need to take place under the customs supervision, e.g. for businesses operating EU UCC customs warehousing or EU Inward Processing
the goods to be processed are not in free circulation, so EU third-country goods or GB goods.
With which goods do these non-Union goods need to be incorporated?
These third country or GB goods now need to be incorporated with another type of good to turn them into a proper NI good. These goods must now
a) not be under any form of customs supervision, restriction or control, or
b) have been domestic goods within the meaning of section 33 of the Taxation (Crossborder Trade) Act 2018(a); - see below.
This, in my opinion, means goods that are already in free circulation, this could also be EU or Irish goods
Meaning of “domestic goods" (Section 33 of the Bill)
(1)Goods are domestic goods for the purposes of this Part if—
(a) they are wholly obtained in the United Kingdom, or
(b) they have been subject to a chargeable Customs procedure.
(2)For the purposes of this section goods have been “subject to a chargeable Customs procedure” if—
(a) the goods were declared for the free-circulation procedure and the procedure has been discharged, or
(b) the goods were declared for an authorised use procedure and the procedure has been discharged.
(3)Goods cease to be domestic goods if—
(a) they are exported from the United Kingdom, and
(b) the export is one which is required to be made in accordance with the applicable export provisions,
and the goods are then chargeable goods until such time (if any) as they are next subject to a chargeable Customs procedure.
(4)For the purposes of subsection (3), every export of goods is required to be made in accordance with the applicable export provisions unless an exception provided for by regulations made by HMRC Commissioners applies to the export.
Why does this all matter?
The Protocol-I-NI enables tariffs to be collected on goods at risk of entering the EU’s Single Market at ports of entry, rather than at the land border. The authorities would, consequently, need to charge customs duty for products deemed “at-risk” of being moved from GB (or “outside the EU”), via NI into the EU. However, if a product is qualifying as a Northern Ireland product, it is, probably, not at risk.
Goods are considered to be at risk if the goods under two conditions:
i. They are subject to “commercial processing” in NI; and
ii. They fulfil the criteria established by the so-called “Joint Committee”.
Tariffs would be payable upon “importation” into NI unless deferred, waived or suspended for any other reason.
“Commercial processing” as per the Protocol-I-NI 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.
By the time of this blog entry, the Committee has not yet published such criteria.
However, the Protocol-NI requires that the committee considers four criteria: · 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 duty payable.
As we wait for a clear understanding of what goods "at-risk" are (if we ever get one), it is helpful to know how to turn goods with GB content into NI goods, for which there would be no duty as they are NI goods.
In other words, if goods are NI goods, they are not "at-risk", right?
Disclaimer: An analysis is not law - my opinion is not law - the law is the law. Only stick to official sources and the law.
The Qualifying Goods Regulation
Cross Border Bill 2018 - Section 33
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