Council Decision (EU) 2023/702 of 21 March 2023 on the position to be taken on behalf of the European Union within 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 as regards a decision to be adopted, and recommendations and joint and unilateral declarations to be made

For a measure to be considered to have a genuine and direct link to Northern Ireland and thus to have an effect on the trade between Northern Ireland and the Union that is subject to the Windsor Framework, that measure needs to have real foreseeable effects on that trade. The relevant real foreseeable effects should be material, and not merely hypothetical or presumed.

For measures granted to any beneficiary that is located in Great Britain, factors relevant to materiality may include the size of the undertaking, the size of the subsidy, and the market presence of the undertaking in the relevant market in Northern Ireland. While the mere placement of goods on the Northern Ireland market is not sufficient, on its own, to represent a direct and genuine link engaging Article 10(1) of the Windsor Framework, measures that are granted to beneficiaries located in Northern Ireland are more likely to have material effects.

For measures granted to any beneficiary that is located in Great Britain that have a material effect, it must be further demonstrated that the economic benefit of the subsidy would be wholly or partially passed on to an undertaking in Northern Ireland, or through the relevant goods placed on the market in Northern Ireland, for example through selling below market price, for there to be a direct and genuine link engaging Article 10(1) of the Windsor Framework.

The European Commission and the United Kingdom will set out in their respective guidance the circumstances in which Article 10 of the Windsor Framework will apply, providing further detail to enable both granters and businesses across the United Kingdom to operate with greater certainty.

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JOINT DECLARATION OF THE UNION AND THE UNITED KINGDOM IN 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

of … 2023

on Article 13(3a) of the Windsor Framework ([^E0011])

The Union and the United Kingdom recognise that for a notification under Article 13(3a) of the Windsor Framework to be made in good faith in accordance with Article 5 of 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 ([^E0012]) (‘the Withdrawal Agreement’), it needs to be made under each of the conditions set out in paragraph 1 of the Unilateral Declaration by the United Kingdom on involvement of the institutions of the 1998 Agreement, as annexed to Decision No …/2023 ([^E0013]).

In case the arbitration panel has ruled, in accordance with Article 175 of the Withdrawal Agreement, that the United Kingdom has failed to comply with Article 5 of the Withdrawal Agreement in relation to a notification under Article 13(3a) of the Windsor Framework, swift compliance with the ruling of the arbitration panel should be achieved, as set out in Recommendation No …/2023 ([^E0014]).

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JOINT DECLARATION No …/2023 OF THE UNION AND THE UNITED KINGDOM IN 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

of … 2023

The Union and the United Kingdom wish to restate their commitment to make full use of the structures provided for in 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 (‘the Withdrawal Agreement’), namely the Joint Committee, the Specialised Committees and the Joint Consultative Working Group to oversee the implementation of the Agreement. They will assist each other in carrying out tasks which flow from the Windsor Framework ([^E0015]) in full mutual respect and good faith, in accordance with Article 5 of the Withdrawal Agreement.

The United Kingdom recalls its unilateral commitment to ensure full participation of the First Minister and deputy First Minister of Northern Ireland in the United Kingdom’s delegation to the Joint Committee, and in that context its determination to ensure that the application of the Windsor Framework should impact as little as possible on the everyday life of communities.

The Union and the United Kingdom intend to organise meetings of the relevant joint bodies on a regular basis in order to foster dialogue and engagement. In this context, the Specialised Committee on the implementation of the Windsor Framework may provide for exchanges of views on any future United Kingdom legislation regarding goods of relevance to the operation of the Windsor Framework. In particular, this would allow the United Kingdom and the Union to assess the potential impact of that future legislation in Northern Ireland, anticipate and discuss any practical difficulties at stake.

To that end, the Specialised Committee may convene in a specific composition, namely the Special Body on Goods. It may request, if necessary, the Joint Consultative Working Group and any of its relevant sub-groups composed of experts from the European Commission and the United Kingdom Government to examine and provide information on a particular issue. As appropriate, representatives from businesses and civic society stakeholders may be invited to attend relevant meetings. The Specialised Committee may make relevant recommendations to the Joint Committee as needed.

The Union and United Kingdom are committed to resolving any issues in the operation of the Windsor Framework in the best and most expeditious way possible. The Union and the United Kingdom will use the joint bodies to address any issues that may arise in the implementation of the Windsor Framework. Such issues can therefore be subject to dialogue in the joint bodies of the Withdrawal Agreement at the request of the Parties. This allows the Parties to regularly discuss relevant developments of importance for the proper fulfilment of their respective obligations under the Windsor Framework.

The Union and the United Kingdom renew their commitment to make every attempt, through dialogue, to arrive at mutually satisfactory resolutions of matters affecting the operation of the Withdrawal Agreement. To this end, the Union and United Kingdom intend to make full use of the powers of the Joint Committee, in good faith, with the aim of reaching mutually agreed solutions on issues of common interest.

Exchanges in such frameworks are without prejudice to the autonomy of the decision-making and respective legal orders of the Union and the United Kingdom.

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JOINT DECLARATION OF THE UNION AND THE UNITED KINGDOM IN 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

of … 2023

on the VAT regime for goods not being at risk for the Union’s internal market and on the VAT arrangements for cross-border refunds

The Union and the United Kingdom intend to examine the possibility to adopt a Joint Committee decision, based on Article 4 of Decision No …/2023 ([^E0016]), providing for the rules on rates laid down in Article 98, read in conjunction with Annex III, of Directive 2006/112/EC not to apply to certain goods, other than goods supplied and installed in immovable property located in Northern Ireland by taxable persons. That decision would only relate to such goods which by their nature and by the conditions under which they are supplied would be subject to final consumption in Northern Ireland, and in relation to which not applying the rules on rates laid down in Article 98, read in conjunction with Annex III, of Directive 2006/112/EC would not lead to a negative impact on the Union’s internal market in the form of fiscal fraud risks and any potential distortion of competition. Such a decision should establish a detailed list that would be valid for five years. The Union and the United Kingdom indicate their willingness to evaluate and revise such a list on a regular basis.

The Union and the United Kingdom also intend to evaluate the current VAT arrangements for cross-border refunds under Directive 2008/9/EC and Directive 86/560/EEC and examine the need to adopt, if appropriate, based on Article 4 of Decision No …/2023 a Joint Committee decision whereby any necessary adjustments would be laid down or refund arrangements would only be limited to the application of Directive 86/560/EEC. Such evaluation should take account of the administrative burden on taxable persons as well as administrative costs on tax administrations.

ANNEX 3

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UNILATERAL DECLARATION BY THE UNITED KINGDOM IN 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

of …/2023

on market surveillance and enforcement

The United Kingdom recalls its commitment to ensure a robust system of market surveillance and enforcement in the context of the unique arrangements agreed with the European Union in accordance with the Windsor Framework ([^E0017]) to protect trade within the UK’s internal market, and Northern Ireland’s place in the UK’s customs territory, while ensuring the integrity of the European Union’s internal market and customs union.

The United Kingdom underlines that there must be robust enforcement to ensure that traders are not abusing these new internal UK trade arrangements to move goods into the European Union.

Market surveillance

The United Kingdom recognises the important role of market surveillance, and the work of market surveillance authorities and other competent authorities, in meeting these objectives. The United Kingdom will therefore continue to ensure that those authorities deliver a programme of activities which drive safety and compliance, including working with businesses to ensure they are aware of their obligations, assessing documentation and checking products on the market where relevant.

The United Kingdom will continue to:

• — build capability and capacity amongst market surveillance authorities and other competent authorities;

• — improve methodologies for product safety risk assessment;

• — ensure that relevant authorities have the necessary powers to undertake effective monitoring activity in the context of the international border between the United Kingdom and the European Union;

• — support risk-based and intelligence-led activities from relevant authorities, including appropriate audits, inspections and spot checks, to check compliance against applicable requirements;

• — use robust intelligence and data gathering to ensure a detailed evidence base for identifying emerging risks, including of possible movements into the European Union;

• — use accurate and detailed information to inform policy and enforcement decisions; and

• — share and receive information through any relevant IT systems on the compliance activities of market surveillance authorities and other competent authorities.

The United Kingdom will also continue to support cooperation with market surveillance authorities in other markets, via the Single Liaison Office for market surveillance.

Enforcement

Robust enforcement will not involve new checks or controls at the border between Northern Ireland and Ireland, but will mean enhanced activity by relevant UK authorities, in accordance with international best practice, with the European Union and Member State authorities where appropriate, in order to protect the UK internal market and the European Union’s internal market and customs union, and robustly tackle illegal activity and smuggling, including by organised criminal groups.

With respect to goods subject to sanitary and phytosanitary rules, market surveillance and enforcement activities will further enhance the specific procedures set out in the applicable rules for the entry of those goods into Northern Ireland. In addition, the United Kingdom will reinforce its monitoring and enforcement activity to effectively manage the risks stemming from goods moved by parcel, recognising the particular reliance placed by consumers on those movements.

The United Kingdom will also maintain its strong regime of penalties for illegal trading and smuggling activities. This will be kept under close review, with a view to increasing penalties relating to the abuse of these new rules by moving goods into the European Union if necessary to provide a further deterrent.

The United Kingdom will take effective, dissuasive and proportionate action in relation to potential non-compliance. This will include risk analysis, risk-based compliance action and ongoing risk assessments of trader populations, underpinned by sanctions and penalties.

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UNILATERAL DECLARATION BY THE UNITED KINGDOM IN 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

of …/2023

on export procedures for goods moving from Northern Ireland to other parts of the United Kingdom

The United Kingdom notes Northern Ireland’s place in the United Kingdom’s customs territory, the need to protect the Good Friday or Belfast Agreement of 10 April 1998 in all its dimensions, and its commitment to unfettered access for Northern Ireland businesses to the whole of the UK market.

In respect of all goods moving from Northern Ireland to other parts of the United Kingdom’s internal market, the United Kingdom confirms that export procedures under Regulation (EU) No 952/2013 will apply only where goods:

• 1. are placed under a procedure listed in Article 210 of that Regulation;

• 1. are in temporary storage in accordance with Article 144 of that Regulation;

• 1. are subject to provisions of Union law falling within the second sentence of Article 6(1) of the Windsor Framework ([^E0018]) which prohibit or restrict the exportation of goods;

• 1. are placed under the export procedure within the Union in accordance with Title V and Title VIII of that Regulation; or

• 1. do not exceed EUR 3 000 in value and are packed or loaded for export shipment within the Union, in accordance with Article 221 of Regulation (EU) No 2015/2447.

The United Kingdom recalls its commitment to ensure full protection under international requirements and commitments that are relevant to the prohibitions and restrictions on the exportation of goods from the Union to third countries as set out in Union law.

The United Kingdom confirms it will provide to the Union meaningful information in relation to goods subject to prohibitions and restrictions moving from Northern Ireland to other parts of the United Kingdom as regards exports, transfer, brokering and transit of dual use items, exports of cultural goods and shipments of waste.

This Unilateral Declaration will replace the Unilateral Declaration by the United Kingdom of Great Britain and Northern Ireland in the Joint Committee on export declarations of 17 December 2020.

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UNILATERAL DECLARATION BY THE UNITED KINGDOM IN 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

of …/2023

on the democratic consent mechanism in Article 18 of the Windsor Framework ([^E0019])

The United Kingdom notes that the joint solutions announced in Windsor are intended to constitute a series of practical and sustainable measures to address, in a definitive way, deficiencies and situations unforeseen that have emerged since the Protocol on Ireland/Northern Ireland (‘the Protocol’) entered into force.

The United Kingdom recognises the importance of ensuring that these arrangements are always able to command the broadest possible support across the community in Northern Ireland, in line with its responsibility to uphold the Good Friday or Belfast Agreement of 10 April 1998, including its subsequent implementation agreements and arrangements, in all its parts – and with regard to its specific responsibilities to respect the identity, ethos and aspirations of both communities. The democratic consent mechanism in Article 18 of the Windsor Framework provides an ongoing and important safeguard in that respect, alongside which the United Kingdom is committed to commissioning an independent review in the circumstances set out in its Unilateral Declaration on consent ([^E0020]). In any such circumstances, whether following the first exercise of the democratic consent mechanism or thereafter, the United Kingdom commits to bring the recommendations of the review to the Joint Committee, recognising the responsibility of the Joint Committee under Article 164 of 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 to consider any matter of interest relating to an area covered by the Windsor Framework, and to seek appropriate ways and methods of preventing problems that might arise in areas covered by the Windsor Framework.

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UNILATERAL DECLARATION BY THE UNITED KINGDOM IN 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

of …/2023

on strengthening enforcement action for goods moved in parcels from another part of the United Kingdom to Northern Ireland

Prior to the entirety of the provisions of Decision No …/2023 ([^E0021]) becoming applicable, the United Kingdom is committed to working with the Union to provide protection to the Union internal market by strengthening enforcement action concerning goods moved in parcels from another part of the United Kingdom to Northern Ireland. In that context, the United Kingdom undertakes to:

• — Work with economic operators, notably fast parcels and postal operators, to make available to the United Kingdom Government and Union representatives commercial data on the movement of parcels, including the sender, the recipient and the description of the relevant goods. This data would support enforcement and compliance action, supplementing existing risk and intelligence led activity.

• — Enhance existing co-operation between UK customs authorities and the European Commission, by collaborating on enforcement and compliance risks on the basis of the agreed operational arrangements referred to in Decision No …/2023.

• — The United Kingdom will regularly update the Specialised Committee on issues related to the implementation of the Windsor Framework ([^E0022]) on the progress of the work carried out on the abovementioned issues.

OJ L 29, 31.1.2020, p. 7.

[^E0002]: OJ: please insert full title and OJ reference of this Joint Committee Decision.

[^E0003]: OJ L 62, 2.3.2020, p. 1.

[^E0004]: Regulation (EC) No 638/2004 of the European Parliament and of the Council of 31 March 2004 on Community statistics relating to the trading of goods between Member States and repealing Council Regulation (EEC) No 3330/91 (OJ L 102, 7.4.2004, p. 1).

[^E0005]: Regulation (EC) No 471/2009 of the European Parliament and of the Council of 6 May 2009 on Community statistics relating to external trade with non-member countries and repealing Council Regulation (EC) No 1172/95 (OJ L 152, 16.6.2009, p. 23).

[^E0006]: See Joint Declaration No …/2023.

[^E0007]: Commission Delegated Regulation (EU) 2015/2446 of 28 July 2015 supplementing Regulation (EU) No 952/2013 of the European Parliament and of the Council as regards detailed rules concerning certain provisions of the Union Customs Code (OJ L 343, 28.12.2015, p. 1).

OJ L 29, 31.1.2020, p. 7.

OJ L 29, 31.1.2020, p. 7.

[^E0010]: See Joint Declaration No …/2023.

[^E0011]: See Joint Declaration No …/2023.

[^E0012]: OJ L 29, 31.1.2020, p. 7.

[^E0013]: [to insert full title of the Joint Committee decision]

[^E0014]: [to insert full title of the Joint Committee recommendation]

[^E0015]: See Joint Declaration No XX/2023.

[^E0016]: [to insert full title]

[^E0017]: See Joint Declaration No XX/2023.

[^E0018]: See Joint Declaration No XX/2023.

[^E0019]: See Joint Declaration No XX/2023.

[^E0020]: Declaration by Her Majesty’s Government of the United Kingdom of Great Britain and Northern Ireland concerning the operation of the ‘Democratic consent in Northern Ireland’ provision of the Protocol on Ireland/Northern Ireland.

[^E0021]: [to insert full title of the Joint Committee decision]

[^E0022]: See Joint Declaration No …/2023.