Review, suspension and termination of Section 2 of this Decision
1. The Joint Committee shall discuss the application of this Section of this Decision unless the Parties decide otherwise.
2. The Union may notify the United Kingdom within the Joint Committee where the United Kingdom:
(a) in a sustained manner, fails to implement Article 5 of Joint Committee Decision No 6/2020 through the provision of access to information contained in United Kingdom networks, information systems and databases and United Kingdom national modules of Union systems referred to in Annex I to that Joint Committee Decision; or
(b) 6 months after the date referred to in Article 23(5) of this Decision or at any moment thereafter, fails to ensure that Union representatives have access to information contained in United Kingdom networks, information systems and databases and United Kingdom national modules of Union systems referred to in point a) in accessible format and in such a way as to allow them to conduct risk analysis including identification of recent and historical trends patterns; or
(c) seriously mismanages implementation of Articles 9 to 14 of and Annex III to this Decision.
The Union shall provide the United Kingdom with the reasons for which it has made the notification. The Parties shall use their best endeavours to find a mutually satisfactory resolution of the matter. If the Parties do not find a mutually satisfactory resolution within 30 working days of the notification, or such longer period as the Joint Committee may decide, Articles 7(1)(a)(ii), 7(1)(a)(iii), 7(1)(b)(ii) and 9 to 14 of this Decision shall cease to apply from the first day of the month following the end of that period.
In the case referred to in the previous subparagraph, the Union and the United Kingdom shall immediately enter into consultations in the Joint Committee and shall use their best endeavours to find a mutually satisfactory resolution of the matter, or to agree on alternative provisions for the period of suspension.
If the situation having given rise to that notification has been remedied, the Union shall notify the United Kingdom within the Joint Committee. In that case, the provisions referred to in the second subparagraph shall apply again from the first day of the month following that during which the second notification was made.
3. The United Kingdom may notify the Union within the Joint Committee where the Union acts providing for facilitations relating to the movement of goods referred to in Article 7(1)(a)(ii) and 7(1)(a)(iii) of this Decision cease to be in force, in whole or in part, in such a way that they no longer provide for the same level of facilitations.
The United Kingdom shall provide the Union with the reasons for which it has made the notification. The Parties shall use their best endeavours to find a mutually satisfactory resolution of the matter. If the Parties do not find a mutually satisfactory resolution within 30 working days of the notification, or such longer period as the Joint Committee may decide, Articles 9, 10, 11 and 14 of this Decision shall cease to apply from the first day of the month following the end of that period and instead rules identical to those contained in Articles 5 to 8 of Joint Committee Decision No 4/2020 shall apply.
If the situation having given rise to that notification has been remedied, the United Kingdom shall notify the Union within the Joint Committee. In that case, Articles 9, 10, 11 and 14 of this Decision shall apply again and rules identical to those contained in Articles 5 to 8 of Joint Committee Decision No 4/2020 shall cease to apply from the first day of the month following that during which the second notification was made.
4. If either Party considers there is significant diversion of trade, or fraud or other illegal activities, that Party shall inform the other Party in the Joint Committee at the latest one year after the date referred to in Article 23(5) of this Decision, and the Parties shall use their best endeavours to find a mutually satisfactory resolution of the matter. If the Parties do not find a mutually satisfactory resolution, Articles 7(1)(a)(ii), 7(1)(a)(iii), 7(1)(b)(ii) and 9 to 14 of this Decision shall cease to apply 24 months after the date referred to in Article 23(5) of this Decision, unless the Joint Committee decides within 18 months of the date referred to in Article 23(5) of this Decision to continue their application.
In case Articles 7(1)(a)(ii), 7(1)(a)(iii), 7(1)(b)(ii), and 9 to 14 of this Decision cease to apply in accordance with the first subparagraph, the Joint Committee shall amend this Decision at the latest 24 months after the date referred to in Article 23(5) of this Decision to make appropriate alternative provision applicable from 24 months after the date referred to in Article 23(5) of this Decision, having regard to the specific circumstances in Northern Ireland and fully respecting Northern Ireland’s place in the United Kingdom’s customs territory.
In case Articles 7(1)(a)(ii), 7(1)(a)(iii), 7(1)(b)(ii) and 9 to 14 of this Decision have been suspended in accordance with paragraphs 2(a) or 2(b) of this Article, the time periods in the first and second subparagraphs shall be extended by the duration of such suspension.
Article 16
Repeal of Joint Committee Decision No 4/2020
This Section of this Decision shall replace Joint Committee Decision No 4/2020, which is hereby repealed.
Entry into force and application
1. This Decision shall enter into force on the day following the date of its adoption.
2. Sections 1, 3 and 4 shall apply as of the date of entry into force of this Decision.
3. Articles 9, 11 and 12 of and Annex III to this Decision shall apply as from the date of the entry into force of this Decision. As from that date, Articles 5 and 7 of Joint Committee Decision No 4/2020 shall cease to apply. An authorisation granted pursuant to Articles 5 and 7 of Joint Committee Decision No 4/2020 shall remain valid until the date at which the provisions of this Decision, with the exception of Articles 7(1)(a)(iii), 9, 11, 12, 13 and 15(3), apply, in accordance with paragraph 3 of this Article. Any authorisation granted under Articles 9 and 11 of this Decision will be treated as an authorisation granted under Articles 5 and 7 of Joint Committee Decision 4/2020 for as long as the other provisions of that Joint Committee Decision 4/2020 apply.
4. Subject to the second subparagraph, the other provisions of this Decision, with the exception of Articles 7(1)(a)(iii), 13 and 15(3), shall apply as from 30 September 2023, provided that the following declarations have been made within the Joint Committee:
(a) a declaration by the Union to the effect that it is satisfied:
(i) with the implementation by the United Kingdom of Article 5 of Joint Committee Decision No 6/2020 through the provision of access to information contained in United Kingdom networks, information systems and databases and United Kingdom national modules of Union systems referred to in Annex I to that Joint Committee Decision; and
(ii) that all existing XI EORI registrations are correctly issued; and
(iii) that the United Kingdom has issued new guidance for parcels in line with the arrangements set out in this Decision; and
(iv) that the United Kingdom has issued its unilateral declaration on export procedures for goods exiting Northern Ireland to other parts of the United Kingdom.
(b) a declaration by the United Kingdom to the effect that all importers wishing to operate under Articles 7(1)(a)(ii) and 7(1)(b)(ii) of this Decision have been granted authorisations in accordance with Articles 9 and 11 of and Annex III to this Decision.
Should any of the declarations referred to in the first subparagraph not have been made by 30. September 2023, the provisions of this Decision, with the exception of Articles 7(1)(a)(iii), 9, 11, 12, 13 and 15(3), shall apply as from the first day of the month following that in which the last of these declarations has been made.
5. Provided that the Union acts providing for facilitations relating to the movement of goods referred to in Articles 7(1)(a)(ii) and 7(1)(a)(iii) of this Decision have entered into force and subject to the second subparagraph, Articles 7(1)(a)(iii), 13 and 15(3) shall apply as from 30 September 2024, provided that the following declarations have been made within the Joint Committee:
a) a declaration by the Union to the effect that it is satisfied that the United Kingdom has set up the networks, information systems and databases in relation to the data referred to in Article 141(10)(d)(vii) of Commission Delegated Regulation (EU) 2015/2446 that are to be provided to the United Kingdom competent authority and is satisfied with the implementation by the United Kingdom of Article 5 of Joint Committee Decision No 6/2020 through the provision of access to information contained in these networks, information systems and databases; and
b) a declaration by the United Kingdom to the effect that all authorised carriers are able to comply with the obligations set out in Article 13 of this Decision.
Should both declarations referred to in the first subparagraph have been made earlier than by 30. September 2024 or should any of the declarations referred to in the first paragraph not have been made by that date, Articles 7(1)(a)(iii), 13 and 15(3) shall apply as from the first day of the month following that in which the last of these declarations has been made.
Unilateral Declaration by the United Kingdom Involvement of the institutions of the 1998 Agreement
1. The United Kingdom will adopt the following procedure to operate the emergency brake mechanism in Article 13(3a) of the Windsor Framework6. This mechanism will apply in the unique circumstances of this Declaration and is without prejudice to the status of cross-community voting and safeguards in the 1998 Agreement, which apply solely and exclusively to devolved matters.
a. The mechanism will operate solely and exclusively in the event that after the date of this declaration, the Northern Ireland Executive has been restored and become operational, including with a First Minister and deputy First Minister in post, and the Northern Ireland Assembly has been in regular session. Thereafter, Members of the Legislative Assembly (‘MLAs’) wishing to operate the mechanism must be individually and collectively seeking in good faith to fully operate the institutions, including through the nomination of Ministers and support for the normal operation of the Assembly.
b. The minimum threshold for the mechanism will operate on the same basis as the separate ‘Petition of Concern’ process within the 1998 Agreement, as updated through the New Decade, New Approach Agreement in 2020. This means 30 MLAs from at least two parties (and excluding the Speaker and Deputy Speakers) will need to notify the UK Government of their wish that the emergency brake mechanism should be applied.
c. When providing notification to the UK Government, MLAs will need to demonstrate, in a detailed and publicly available written explanation:
i. that they have met the same requirements as those set out in Annex B of Part 2 of the New Decade, New Approach Agreement, namely that the notification is only being made in the most exceptional circumstances and as a last resort, having used every other available mechanism;
ii. that the conditions set out in the third subparagraph of Article 13(3a) of the Windsor Framework are met; and
iii. that MLAs have sought prior substantive discussion with the UK Government and within the Northern Ireland Executive to examine all possibilities in relation to the Union act; taken steps to consult businesses, other traders and civic society affected by the relevant Union act; and made all reasonable use of applicable consultation processes provided by the European Union for new Union acts relevant to Northern Ireland.
2. If it accepts that the conditions in paragraph 1(a) and (b) have been met and that the explanation provided under paragraph 1(c) is satisfactory, the United Kingdom will notify the Union in accordance with the first subparagraph of Article 13(3a) of the Windsor Framework.
3. The United Kingdom, following a notification by MLAs, commits to informing the Union without delay.
4. The United Kingdom, following a notification to the Union that the emergency brake has been triggered, commits to intensive consultations in the Joint Committee on the relevant Union act as provided for by Article 13(4) of the Windsor Framework.
