Goods Not at Risk

Subject matter

This Section sets out rules for implementing Article 5(2) of the Protocol as regards:

• the conditions for considering that a good brought into Northern Ireland from outside the Union will not be subject to commercial processing in Northern Ireland;
• the criteria for considering that a good brought into Northern Ireland from outside the Union is not at risk of subsequently being oved into the Union.

Non-commercial processing

For the purpose of point (a) of the first subparagraph, and of the third subparagraph of Article 5(2) of the Protocol, the processing of a good shall be considered as being non-commercial, where:

• the person who lodges a declaration for release for free circulation in respect of that good or on whose behalf such declaration is lodged (“importer”) had a total annual turnover of less than GBP 2,000,000 in its most recent complete financial year; or
• the processing is in Northern Ireland and is for the sole purpose of:

the sale of food to an end consumer in the United Kingdom;

construction, where the processed goods are to form a permanent part of a structure that is constructed and located in Northern Ireland by the importer or one subsequent entity;

direct provision to the recipient of health or care services in Northern Ireland by the importer or one subsequent entity;

not for profit activities in Northern Ireland by the importer or one subsequent entity, where there is no subsequent sale of the processed good; or

the final use of animal feed on premises located in Northern Ireland by the importer or one subsequent entity.

Criteria for considering goods not to be at risk of subsequently being moved into the Union

 A good shall be considered not to be at risk of subsequently being moved into the Union, where it is not considered to be subject to commercial processing in accordance with Article 6 of this Decision, and where:

• in the case of goods brought into Northern Ireland from another part of the United Kingdom by direct transport:
  • the duty payable according to the Union Common Customs Tariff is equal to zero; or
  • the importer has been authorised in accordance with Articles 9 to 11 of this Decision to bring that good into Northern Ireland for its sale to, or final use by, end consumers located in the United Kingdom, including where that good has been subject to non-commercial processing in accordance with Article 6 of this Decision before its sale to, or final use by, end consumers; or
  • it is sent in a parcel and

it is of a non-commercial nature and is sent by a private individual to another private individual residing in Northern Ireland; or

it is sent by an economic operator through a carrier authorised in accordance with Article 12 of this Decision to a private individual residing in Northern Ireland and is exclusively for personal use.

• in the case of goods brought into Northern Ireland by direct transport other than from the Union or another part of the United Kingdom:
  • the duty payable according to the Union Common Customs Tariff is equal to or less than the duty payable according to the customs tariff of the United Kingdom; or
  • the importer has been authorised in accordance with Articles 9 to 11 of this Decision to bring that good into Northern Ireland for its sale to, or final use by, end consumers located in Northern Ireland (including where that good has been subject to non commercial processing in accordance with Article 6 of this Decision before its sale to, or final use by, end consumers), and the difference between the duty payable according to the Union Common Customs Tariff and the duty payable according to the customs tariff of the United Kingdom is lower than 3% of the customs value of the good.

Paragraphs 1(a)(ii), 1(a)(iii) and 1(b)(ii) shall not apply to goods subject to trade defence measures adopted by the Union.

For the purpose of this Decision, ‘parcel’ means a package containing:

• goods, other than an item of correspondence, with a total gross weight not exceeding 31,5 kg; or
• a single item good, other than an item of correspondence, with a total gross weight not exceeding 100 kg, in relation to a commercial transaction.

Determination of the applicable duties

For the purposes of Article 7(1)(a)(i) and 7(1)(b) of this Decision, the following rules shall apply:

• the duty payable according to the Union Common Customs Tariff to a good shall be determined in accordance with the rules set out in the Union customs legislation;
• the duty payable according to the customs tariff of the United Kingdom to a good shall be determined in accordance with the rules set out in the customs legislation of the United Kingdom.

Authorisation for the purposes in Article 7

For the purposes of Articles 7(1)(a)(ii) and 7(1)(b)(ii) of this Decision, an application for an authorisation to bring goods into Northern Ireland by direct transport for sale to, or final use by, end consumers shall be submitted to the competent authority of the United Kingdom.

The application for the authorisation referred to in paragraph 1 shall contain information on the applicant’s business activities, on the goods typically brought into Northern Ireland, as well as a description of the type of records, systems and controls put in place by the applicant to ensure that the goods covered by the authorisation are properly declared for customs purposes and evidence can be provided to support the undertaking in Article 10(b) of this Decision. The trader shall keep the evidence, e.g. invoices, for the past five years and shall provide it to the competent authorities upon their request. The data requirements of the application are set out in detail in Annex II to this Decision.

The authorisation shall at least indicate the following:

• the name of the person to whom the authorisation has been granted (“authorisation holder”);
• a single reference number attributed by the competent customs authority to the decision (“authorisation reference number”);
• the authority having granted the authorisation;
• the date of taking effect of the authorisation

The provisions of Union customs legislation on decisions relating to the application of the customs legislation shall apply to applications and authorisations referred to in this Article, including as regards monitoring.

In cases where the competent customs authority of the United Kingdom observes deliberate mis-use of an authorisation or breaches of conditions for an authorisation set out in this Decision the authority shall suspend or revoke the authorisation.

The Union representatives may request that the competent customs authority of the United Kingdom verify a specific authorisation. The competent customs authority of the United Kingdom will take appropriate steps in response to such request and will provide information about the action undertaken within 30 days.

General conditions for authorisation

 For the purposes of Articles 7(1)(a)(ii) and 7(1)(b)(ii) of this Decision, an authorisation may be granted to applicants who:

• meet the following establishment criteria:
  • they are established in Northern Ireland or they have a fixed place of business in Northern Ireland
    • where human and technical resources are permanently present; and
    • from where goods are sold to, or provided for final use by, end consumers; and
    • where customs, commercial and transport records and information are available or accessible in Northern Ireland, or
  • they are established in parts of the United Kingdom other than Northern Ireland and fulfil the following criteria:
    • their customs related operations are carried out in the United Kingdom;
    • they have an indirect customs representative in Northern Ireland;
    • their customs, commercial and transport records and information are available or accessible in the United Kingdom to the competent authorities of the United Kingdom and the Union representatives for verifying compliance with the conditions and undertakings given pursuant to this Decision; and
• undertake to bring goods into Northern Ireland solely for sale to, or final use by, end consumers in the United Kingdom, including where those goods have been subject to non-commercial processing in accordance with Article 6 of this Decision before their sale to, or final use by, end consumers in the United Kingdom; and, in the case of a sale to end consumers in Northern Ireland, undertake that the sale will be from one or several physical outlets in Northern Ireland from which physical direct sales are made to end consumers.

Specific conditions for authorisation of importers

For the purposes of Articles 7(1)(a)(ii) and 7(1)(b)(ii) of this Decision, an authorisation to bring goods into Northern Ireland shall only be granted to applicants fulfilling the conditions set out in Article 10 of this Decision as well as the following conditions, as further explained in Annex III to this Decision:

• the applicant declares they will declare for release for free circulation goods brought into Northern Ireland in accordance with Article 7(1)(a)(ii) or 7(1)(b)(ii) of this Decision;
• within three years prior to the application, the applicant must not have committed any serious infringement or repeated infringements of customs legislation and taxation rules and must not have any record of serious criminal offences relating to their economic activity;
• in respect of goods to be declared as not at risk, the applicant shall demonstrate that they have a high level of control of their operations and of the flow of goods, by means of a system of managing commercial and, where appropriate, transport records which allow appropriate controls and provision of evidence to support the undertaking in Article 10(b) of this Decision;
• the applicant is of good financial standing during the three-year period prior to the application, or in the period since its establishment where less than three years, such as to enable the applicant to fulfil its commitments, with due regard to the characteristics of the type of business activity concerned;
• the applicant should be able to show a clear understanding of its obligations under this authorisation and in relation to the movements of goods under the scheme and how to comply with them.

Applicants shall be able to determine whether the goods they bring into Northern Ireland correspond to any of the categories set out in Annex IV to this Decision.

Authorisations shall be granted only if the customs authority considers that it will be able to carry out controls in accordance with relevant agreed operational arrangements without disproportionate administrative effort, including control of any evidence that the goods were sold to, or subject to final use by, end consumers.

Specific conditions for authorisation of Carriers

For the purposes of Article 7(1)(a)(iii)(bb) of this Decision, an economic operator moving parcels, including the United Kingdom designated postal operator, can apply to be an authorised carrier moving parcels from another part of the United Kingdom to Northern Ireland (‘Authorised Carrier’) if it fulfils the following conditions:

• it has registered as an economic operator;
• it is established in the United Kingdom and, in case it is not established in Northern Ireland, it has an indirect customs representative there;
• within three years prior to application it must not have committed any serious infringement or repeated infringements of a legislative or regulatory requirement that is relevant to its economic activity;
• it must have a high level of control of its operations, by means of a system of managing commercial and, where appropriate, transport records which allow appropriate controls and provision of evidence to support its economic activity.

Authorisations shall be granted only if the United Kingdom competent authority considers that it will be able to carry out controls in accordance with the relevant agreed operational arrangements without disproportionate administrative effort, including control of any evidence that the goods were delivered to private individuals residing in Northern Ireland.

Obligations of Authorised Carriers

An Authorised Carrier shall:

• take responsibility for establishing that the goods in each parcel are of the type described in point (l) of Article 138 of Commission Delegated Regulation (EU)2015/2446;
• maintain operational processes that enable it to distinguish between economic operators and private individuals as recipients or senders of parcels;
• be able to determine whether the goods they bring into Northern Ireland correspond to category 1 as set out in Annex IV to this Decision;
• maintain systems that enable it to collect and share the data referred to in Annex 52-03 of Commission Delegated Regulation (EU)2015/2446;
• provide to the United Kingdom competent authority the data referred to in Article 141(1)(d)(vii) of Commission Delegated Regulation (EU)2015/2446 at regular intervals and under the conditions set out therein;
• report to the United Kingdom competent authority any suspicious activity relating to the movement of parcels referred to in Article 7(1)(a)(iii)(bb) of this Decision;
• respond to ad hoc requests from the United Kingdom competent authority for further information;
• comply with any instructions from the United Kingdom competent authority as to the movements of parcels referred to in Article 7(1)(a)(iii)(bb) of this Decision.

Exchange of information on the application of Article 5(1) and (2) of the Protocol

 Without prejudice to its obligations pursuant to Article 5(4) of the Protocol, read in conjunction with Regulation (EC) No 638/2004 of the European Parliament and of the Council(⁴) and Regulation (EC) No 471/2009 of the European Parliament and of the Council(⁵), the United Kingdom shall provide the Union with information on the application of Article 5(1) and (2) of the Protocol as well as of this Decision on a monthly basis. This information shall comprise volumes and values, in aggregated form and per consignment, as well as means of transport, relating to:

• goods brought into Northern Ireland in relation to which no customs duties were payable in accordance with the first subparagraph of Article 5(1) of the Protocol;
• goods brought into Northern Ireland in relation to which the customs duties payable were those applicable in the United Kingdom in accordance with the second subparagraph of Article 5(1) of the Protocol; and
• goods brought into Northern Ireland in relation to which the customs duties payable were in accordance with the Union Common Customs Tariff.

The United Kingdom shall provide the information referred to in paragraph 1 on the 15th working day of the following month for which the information is provided.

The information shall be provided using electronic data processing techniques.

At the request of the Union representatives referred to in the Decision No 6/2020 of 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 and at least twice per year, the competent authorities of the United Kingdom shall provide information in aggregated and per authorisation form to these representatives on the authorisations granted pursuant to Articles 9 to 12 of this Decision, including numbers of accepted, rejected and revoked authorisations, and the place of establishment of the authorisation holders.

Review, suspension and termination of Section 2 of this Decision

 The Joint Committee shall discuss the application of this Section of this Decision unless the Parties decide otherwise.

The Union may notify the United Kingdom within the Joint Committee where the United Kingdom:

• 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
• 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
• seriously mismanages implementation of Articles 9 to 14 of and Annex III to this

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.

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.

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 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.

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.

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