Since very early on in the Withdrawal Agreement negotiations, both the United Kingdom and the EU acknowledged the unique circumstances on the island of Ireland. They recognised the necessity of safeguarding the 1998 Good Friday (Belfast) Agreement, avoiding a hard border on the island of Ireland and protecting North-South cooperation.
This solution was found in the form of the Protocol on Ireland and Northern Ireland, which:
- Avoids a hard border between Ireland and Northern Ireland, thereby enabling the smooth functioning of the all-island economy and safeguarding the Good Friday (Belfast) Agreement in all its dimensions;
- ensures the integrity of the EU’s Single Market for goods, along with all the guarantees it offers in terms of consumer protection, public and animal health protection, and combatting fraud and trafficking,
The Protocol on Ireland and Northern Ireland was conceived as a stable and lasting solution, and will apply alongside any agreement on the future partnership.
Its substantive provisions start to apply on 1 January 2021.
Main elements of the Protocol
- Alignment with EU rules: as of the end of the transition period, Northern Ireland is subject to a limited set of EU rules related to the Single Market for goods and the Customs Union. The Union's Customs Code, for example, applies to all goods entering or exiting Northern Ireland.
- Necessary checks and controls must take place at Points of Entry on goods entering Northern Ireland from the rest of the United Kingdom or any other third country. This also means that the UK, acting in respect of Northern Ireland for the implementation of the Protocol, must ensure that, amongst other things, the relevant sanitary and phyto-sanitary (“SPS”) controls are carried out.
- EU customs duties apply to goods entering Northern Ireland from any other part of the United Kingdom or any other third country unless those goods are not at risk of moving on to the EU. The Protocol contains a presumption that all goods entering Northern Ireland from a third country (i.e. from any other part of the United Kingdom or from other third countries) are at risk of moving on to the Union. Such goods may only exceptionally be considered “not at risk” of moving on to the Union, if the goods concerned are (i) not subject to commercial processing in Northern Ireland and (ii) fulfil additional conditions for being considered “not at risk” set out in the Joint Committee Decision on “goods not at risk”. Where it is established, based on these conditions, that goods from any other part of the United Kingdom than Northern Ireland may be considered “not at risk”, no customs duties are applicable; and where it is established, based on these conditions, that goods from any other third country may be considered “not at risk”, the UK’s customs duties are applicable.
- The application and implementation of the Protocol is the sole responsibility of UK authorities acting in respect of Northern Ireland (Article 12 (1)).
- In order to live up to their responsibilities pursuant to Article 12 of the Protocol, EU institutions and bodies must be able to monitor the implementation of the Protocol by UK authorities. Article 12 (2) therefore provides for a ‘Union presence’ during any implementation activities by the UK authorities.
- The Joint Committee Decision 6/2020 sets out practical working arrangements aimed at ensuring an effective exercise of the ‘Union presence’ established by Article 12 of the Protocol.
What is the consent mechanism?
The Protocol on Ireland and Northern Ireland provides for a new mechanism on “consent”, which gives the Northern Ireland Assembly a decisive voice on the long-term application of relevant EU law made applicable by the Protocol in respect of Northern Ireland. This consent mechanism concerns the application of EU law on goods and customs, the Single Electricity Market, VAT and State aid, as currently foreseen by the Protocol.
In practice, this means that four years after the start of application of the Protocol on 1 January 2021, the Assembly can, by simple majority, give consent to the continued application of relevant Union law, or vote to discontinue its application. In the latter case, the Protocol would cease to apply two years later.
Every four years thereafter, the Assembly can vote on the continued application of relevant Union law. In case a vote of the Assembly gathers cross-community support for the continued application of relevant Union law, the next vote can only take place eight years thereafter.