On 13 October 2021 the EU Commission issued four non-papers on the implementation of the Ireland/Northern Ireland Protocol (“the Protocol”). These cover proposed flexibilities and solutions within the areas of i) Sanitary and phytosanitary (SPS) issues, ii) Customs, iii) Medicines, iv) Engagement with Northern Ireland Stakeholders and Authorities.

The EU non-papers follow on from a series of meetings and engagements over recent weeks, in particular with stakeholders in Northern Ireland, including business groups, politicians, and wider civic society. They are also a response to proposals set out in the UK Command Paper of 21 July 2021.

Whilst the EU make clear that this is not a renegotiation of the Protocol, they do say it is an “alternative model to how it could be implemented”. Perhaps not unexpectedly the non-papers lack detail in many respects on how the potential solutions and further flexibilities would work in practice. However, in our view it is a very welcome response and demonstrates that the EU have listened to the concerns from Northern Ireland stakeholders and are intent on finding creative solutions that can work for businesses and consumers.  It is hoped that over the coming weeks the UK and EU negotiating teams will be able to land on a jointly agreed position on these issues.

The key points from the documents are summarised below:

1) SPS

The proposal is to greatly simplify the checks and controls on SPS products (feed, food, plants, animals) moving from GB to NI that would otherwise be required under EU law as NI is part of the EU SPS area.  This would be done by:    

  • Repurposing the trusted trader scheme
  • The creation of an “Express Lane” for the movement of goods from Great Britain to Northern Ireland where goods are not at risk
  • Reduce checks on supermarket/retail goods where end destination is NI
  • Greatly reduce certification requirements (including Export Health Certificates)
  • Using labelling to reduce checks, such as, “products only for sale in the UK” 
  • Use of electronic and remote checks and a risk-based approach to reduce the need for checks at Border Control Posts.

2) Customs

The proposal is to make adjustments to the current framework relating to customs requirements.  This would be done by:

  • Reducing customs formalities, checks and controls on moving goods from GB into NI
  • Similar to SPS, an “Express Lane” for the movement of goods from Great Britain to Northern Ireland where goods are not at risk
  • Expansion of the existing scheme on ‘goods not at risk' of entering the Single Market to a wider group of beneficiaries (i.e. businesses) and products. For example, more small and medium-sized enterprises could benefit from the scheme and fewer customs requirements for those “goods not at risk”, however, greater clarity is required
  • Further enhancements to the UK Trader Scheme.

3) Medicines

The proposal is to provide a long-term solution so that there is no disruption to medicines supplies from GB to NI for the benefit of patients in NI.  This would be done by: 

  • No manufacturing import authorisation requirements to bring medicines into NI from GB
  • No requirement to relocate testing facilities to NI or the EU, so these could remain in GB
  • Find a way forward for ensuring continuity of veterinary medicines supply to NI.

4) Engagement with Northern Ireland Stakeholders and Authorities

The proposal is to have greater engagement with NI stakeholders in how the Protocol impacts Northern Ireland. The EU proposal is that there would be six strands addressing any concerns as follows:

  • Increasing transparency to build trust
  • The work of the Joint Consultative Working Group (JCWG) to be enhanced 
  • Fora for structured dialogue with NI stakeholders
  • Structured dialogue between stakeholders and co-chairs of the Joint Committee
  • Participation of Stakeholders at the Specialised Committee
  • Stronger links between the NI Assembly and the EU-UK Parliamentary Partnership Assembly.

As a condition of further simplifications, the EU want to see increased safeguards from the UK authorities in relation to access to IT systems and data and increased market surveillance of where goods are ending up.

What does this mean?

  • None of the documents published this week, on the Protocol have yet been agreed. They are merely proposals at this stage and discussions continue.
  • Existing arrangements will continue for now. Therefore, businesses should continue to meet the requirements of the Protocol as currently being operated, including supplementary declaration requirements
  • Businesses without their own fixed address in Northern Ireland can continue to be authorised for the UK Trader Scheme, provided they meet the other existing UKTS requirements
  • The existing approach to post and parcels movements from GB to NI will continue.

In our previous communications, we highlighted that the Protocol was always going to be sub-optimal to having full membership of the EU, however, we did say and still believe it provides protection for the many NI businesses trading primarily across the island of Ireland and/or with the EU as the status quo position is largely retained going forward with the absence of any border checks, customs declarations or tariffs.  While there has no doubt been problems and challenges, particularly for those NI businesses trading primarily with GB and some NI consumers, we have also seen many businesses building new opportunities.  We are also aware that there are potential investors interested in coming to NI to benefit from the unique dual access to the UK and EU markets if located in NI, however, they are waiting for the Protocol to bed down and for the remaining problems to be resolved.  

It is hoped that the negotiators from both the UK and EU can now get down to the business of jointly agreeing on permanent solutions to the issues highlighted around the NI protocol, so that all businesses and the wider community can benefit.

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