Customs and Movement of Goods Under the Northern Ireland Protocol

Abstract

Article 5 of the Protocol on Ireland/Northern Ireland is the sobering reality for those who were promised and believed that they would be able to put any post-Brexit customs paperwork in the bin for goods travelling from Great Britain to Northern Ireland. Politicians’ denials of an Irish sea border meet hard reality for traders as they go through HM government’s transit requirements for goods crossing the Irish sea. This chapter examines the design, structure and operation of Article 5, the Article that underpins the economic provisions of the Protocol and customs arrangements between the EU and UK. Bordered on either side by Articles that seemingly contradict it, the understated Article 5 speaks the loudest in applying the entirety of the EU’s customs legislation (with limited exceptions) and hundreds of EU legislative instruments to the UK in respect of Northern Ireland. This chapter examines the ‘anatomy’ of Article 5 and the significance of its seven paragraphs. It looks at the operation of Article 5, notably in relation to infringement proceedings initiated under it, the July 2021 UK Command Paper, and the October 2021 EU Proposals in response to this. It concludes that Article 5 provides stability for the island of Ireland, and in EU-UK (economic) relations, as part of the arrangements necessitated by the type of Brexit chosen by the UK government while avoiding a hard border on the island of Ireland. With a vote on the continued application of Articles 5-10 of the Protocol in the not distant future, Article 5 is likely to remain at the fore of activities surrounding the Protocol.

Keywords: Article 5, Brexit, customs, trade in goods, Protocol on Ireland/Northern Ireland