COUNCIL DECISION (EU) 2021/12

of 17 December 2020

on the position to be taken on behalf of the European Union within 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 as regards the determination of goods not at risk

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in particular Article 50(2) thereof,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 218(9) thereof,

Having regard to the proposal from the European Commission,

Whereas:

(1) 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’) was concluded by the Union by means of Council Decision (EU) 2020/135 (1) on 30 January 2020 and entered into force on 1 February 2020.

(2) Article 166 of the Withdrawal Agreement empowers the Joint Committee established by Article 164 of the Withdrawal Agreement (‘the Joint Committee’) to adopt decisions in respect of all matters for which the Withdrawal Agreement so provides. The Protocol on Ireland/Northern Ireland (‘the Protocol’) forms an integral part of the Withdrawal Agreement.

(3) Article 5(1) of the Protocol provides for the application of customs duties applicable in Union law for goods brought into Northern Ireland which are considered at risk of subsequently being moved into the Union. Goods not at risk are subject to either no customs duties or those customs duties applicable in the United Kingdom.

(4) Under Article 5(2) of the Protocol, all goods brought into Northern Ireland are to be considered to be at risk of subsequently being moved into the Union. In order for goods brought into Northern Ireland to be considered ‘not at risk’ in this sense, it needs to be established that those goods will not be subject to commercial processing there and that they fulfil the criteria established by the Joint Committee.

(5) The criteria for goods not being subject to commercial processing should respect the fact that, under Article 4 of the Protocol, Northern Ireland forms part of the United Kingdom’s customs territory. They should also reflect the commitment of the Parties to the Protocol that the implementation of the Protocol should impact as little as possible on the everyday life of communities in both Ireland and Northern Ireland.

(6) Goods brought into Northern Ireland may be considered not to be at risk of subsequently being moved into the Union where the tariff differential is zero, or where it is otherwise ensured that there is no incentive for economic operators to ship goods into Northern Ireland solely because of the applicable customs tariff.

(7) It is appropriate to establish the position to be taken on the Union’s behalf in the Joint Committee,

HAS ADOPTED THIS DECISION:

Article 1 The position to be taken on the Union’s behalf within the Joint Committee established by Article 164 of the Withdrawal Agreement as regards the determination of goods not at risk shall be based on the draft Decision of the Joint Committee attached to this Decision.

Article 2 The Decision of the Joint Committee shall be published in the Official Journal of the European Union.

Article 3 This Decision shall enter into force on the date of its adoption.

Done at Brussels, 17 December 2020. For the Council The President S. SCHULZE

(1) Council Decision (EU) 2020/135 of 30 January 2020 on the conclusion of 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 (OJ L 29, 31.1.2020, p. 1).