Michael Lux northern Irish border
Taoiseach Enda Kenny and British Prime Minister Theresa May. Photo: RollingNews.iePhoto: RollingNews.ie


By Bernard Purcell

The German expert on EU Customs controls who last week told MPs that Taoiseach Enda Kenny and PM Theresa May’s plans for a ‘frictionless’ Border were just ‘nice words’, this week went further and said their plan is ‘unworkable’ and ‘legally impossible’.

The ‘business as usual’ Border enjoyed daily by tens of thousands of people going both ways will not be legally possible after Brexit, customs legal expert Michael Lux insisted. His words are at odds with the two Heads of Government – who have not said just how they see it will be possible to reconcile the competing demands of a frontier between the UK and EU and a minimal border – as the UK government’s own Brexit White Paper published last week said it hopes to be able to do.

Michael Lux, the German former head of the European Commission’s customs procedures who now acts as a private consultant to businesses, told the Northern Ireland Affairs Select Committee in the Commons that after Brexit customs controls on the Northern Irish Border will be unavoidable.

“These are nice words, ‘a seamless flow of goods’. I have used them too in Commission communications on the customs code. But what does that mean? If Northern Ireland is not part of the EU customs territory, then there is a customs border.

“For commercial trade, there are customs formalities. So you cannot say that the situation will be the same as before. OK, the prime minister didn’t say that either. I think what she meant was to keep the burden of customs clearance as small as possible.”

Britain would be free not to waive its own customs controls on the Border should it wish but Ireland as a member of the EU would not, he said. He wrote a longer opinion for the Irish Examiner newspaper this week in which he expanded slightly on his original oral evidence to MPs in London last week.

Michael Lux northern Irish border
Michael Lux

That evidence broadly coincided with MPs overwhelmingly voting in favour of triggering Article 50 – the clause which commences “divorce” negotiations – and was followed by the Government’s Brexit White Paper.

The White Paper, roundly criticised for being hastily and sloppily put together and for being short of any specifics, said the UK wants to conclude a “new comprehensive, bold, and ambitious free trade agreement” with the EU. “Unfortunately, this is not true,” said Messrs Lux and Pickett this week, going on to say “a free trade agreement only means that goods made entirely or substantially in the partner country are free from import duty. Import, excise duty and VAT are still due and will be collected in the context of an importation.

“While a special deal just between Northern Ireland and Ireland isn’t legally possible and special EU customs rules for the border between Ireland and Northern Ireland are unlikely.”

“The goal now (must be) to ensure that the Customs procedures and formalities will be as seamless and frictionless as possible for private persons and businesses.”

“It will not be possible to see the trade and everyday movements we have seen up to now. Travellers can import goods from Northern Ireland duty and tax free only up to €300 (with additional limitations for alcohol and tobacco) and will have to declare goods with a value above that threshold when entering Ireland.”

“If you feel that you don’t need to control the goods which are entering Northern Ireland and if you don’t feel you have to recover VAT and customs duties and excise duties, you are of course free not to do that. But Ireland is obliged to do this.

“If Northern Ireland is no longer part of the EU customs union, then this is an official customs border of the EU and then Ireland is obliged to apply all these rules.” He told MPs last week there can be no question of a bilateral customs deal between Britain and Ireland.

“Ireland is not entitled to make agreements on customs issues. This is an exclusive competence of the European Union. So Ireland can make proposals to the EU negotiator, which is the European Commission, of how the future agreement should look like,” he said. “The cost will increase enormously each time you’re doing something which involves crossing the border, it creates a cost,” he said.

Even dogs, horses and livestock moving within a farm that straddled the Border would need special documentation, he told MPs.


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