Explanatory Memorandum to COM(2020)834 - Proposal for a COUNCIL DECISION pursuant to Article 218 (9) TFEU on the Union position concerning the draft Joint Committee Decision on the determination of goods not at risk - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2020)834 - Proposal for a COUNCIL DECISION pursuant to Article 218 (9) TFEU on the Union position concerning the draft Joint Committee ... |
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| source | COM(2020)834  |
| date | 27-01-2021 |
1. Subject matter of the proposal
The Commission proposes that the Council approves the position to be adopted on the Union's behalf in the Joint Committee established by the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (‘the Withdrawal Agreement’) on a Joint Committee decision establishing the conditions under which goods are considered not to be subject to commercial processing in Northern Ireland as well as the conditions under which goods brought into Northern Ireland are not considered as being at risk of subsequently being moved into the Union.
2. Context of the proposal
Article 5 (1) of the Protocol on Ireland and Northern Ireland (‘the Protocol’) establish which the applicable regime for customs duties for goods brought into Northern Ireland:
–for goods brought into Northern Ireland by direct transport from another part of the United Kingdom: no customs duties, unless the good is at risk of subsequently being moved into the Union
–for goods brought into Northern Ireland from other third countries than the United Kingdom: the customs duties applicable in the United Kingdom, unless the good is at risk of subsequently being moved into the Union.
According to Article 5 (2) of the Protocol, any good brought into Northern Ireland is considered as being at risk of subsequently being moved into the Union unless it is established that the good concerned is
–not subject to commercial processing in Northern Ireland
–and fulfils the criteria established by the Joint Committee for determining goods not at risk of subsequently being moved into the Union.
Article 5 (2) of the Protocol provides for a Decision of the Joint Committee establishing the conditions under which either of these requirements for considering goods as not being at risk of moving from Northern Ireland into the Union are fulfilled.
3. Position to be taken on the Union's behalf
Conditions for considering goods as “not at risk” of moving into the Union
Goods brought into Northern Ireland may be considered as “not at risk” of subsequently moving into the Union if
·either there is no economic incentive to ship them into the EU via Northern Ireland because of the applicable tariff differential, meaning that
·for goods from Great Britain: the customs tariff is zero
·for goods from other third countries: the EU tariff is lower or equal to the UK tariff,
or if it is otherwise ensured that the risk of them being moved further to the EU is minimized, notably because the importer is recognised as a trader selling only to end consumers in Northern Ireland (“Trusted Trader Scheme”). The implementation of Article 5 (1) of the Protocol through a Trusted Trader Scheme requires particularly diligent monitoring by the Union. In order to enable the Union to react if this schemes proves to be insufficently robust, the Joint Committee Decision provides for procedural guarantees enabling a termination of the approach laid down therein (sunset clause).
4. Legal basis
Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement.’
The decision which the Joint Committee is called upon to adopt constitutes an act having legal effects. The envisaged act will be binding on the Parties in accordance with Article 166 of the Agreement.
The envisaged act does not supplement or amend the institutional framework of the Agreement.
Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU.
5. Publication of the envisaged act
As the decision of the Joint Committee concerns the implementation of substantive provisions of the Protocol, it is appropriate to publish it in the Official Journal of the European Union after its adoption.