On 16 August, the UK Government released its proposal on the Irish Border. Given that others have done a stellar job in providing for a comprehensive analysis of the proposal, I want to focus on a specific element of the Government’s paper.
In para 42, the Government notes that ‘there are a number of examples of where the EU has set aside the normal regulations and codes set out in EU law in order to recognise the circumstances of certain border areas.’ In particular, in footnote 34 that accompanies that statement, the Government refers to the Green Line Regulation. That legislative device regulates among else the crossing of persons and goods between northern Cyprus and the Government-Controlled Areas in the South of the Island.
The same example is used by the DUP which was apparently consulted when the Government was forming its proposals.
Why is that example that was buried in a footnote important?
Clearly, the historical and political conditions that led to the creation of the border between the North and the South of Cyprus bear no resemblance to the post-Brexit political situation. Notwithstanding, the Cypriot case is a good example that underlines the flexibility of the Union legal order. The EU has managed to provide for a preferential access to the Single Market to goods that are produced in an area outside its Customs Union by creating a number of legislative instruments including the Green Line Regulation, .
In my research, I was one of the first to explain extensively, how this and other examples of territorial differentiation might be used in order to deal with the tensions created by Brexit to the Irish border and elsewhere. Here, I will just remind how the Cypriot case allows the crossing of goods from the North.
In agreement with the Republic of Cyprus, the EU authorised a Turkish Cypriot NGO, the Turkish Cypriot Chamber of Commerce, to issue accompanying documents so that goods originating in northern Cyprus may cross the line and be circulated in South Cyprus and the Union market. More importantly, those goods are deemed as originating in Cyprus/EU and thus they are not subject to customs duties or charges having equivalent effect when they are introduced in the Government Controlled Areas. A similar agency could be authorised in Northern Ireland in order its traders not to face the Union common external tariff even when they ‘export’ to the Republic and the Rest of the EU.
Is that solution a panacea? Far from it. First of all, it is only goods that would be wholly obtained or have undergone their last, substantial, economically justified processing or working, in an undertaking equipped for that purpose in Northern Ireland that would not be subject to customs duties or charges having equivalent effect. All the other goods would face the Union common external tariff. So, a customs border will be there and rules of origin will be applying. However, there could be a fast-track simplified process for the access of the Northern Irish goods to the EU that could facilitate the economic life of traders and manufacturers North of the border.
In sum, the Cypriot example shows that the EU is able to accommodate special arrangements in order to absorb the tensions created by certain political circumstances that may threaten the stability of a region. However, the decision of the UK to get out of the customs union comes with a certain price that will be mostly felt in the Irish border. If the UK wants to avoid this situation, it would have either to revise its decision or to start entertaining and exploring the idea of differentiated Brexit that would entail a special status for Northern Ireland. I will come back to the latter in the months to come.
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