Brexit and the Control of Tobacco Illicit Trade

Front matter

SPRINGER BRIEFS IN LAW

Brexit and the Control of Tobacco Illicit Trade

A Springer Open

Preface

Illicit trade in tobacco products is a global problem, and addressing it requires concerted solutions at the international and regional levels. The EU and its Member States play a significant role in finding adequate solution, at least for its market which loses about 10 billion euro annually from this phenomenon alone. The smuggling of tobacco products also undermines public health policies by making especially cigarettes available in an uncontrolled sales environment and at a substantial discount compared to legal sales channels. Illicit trade in tobacco products is a main source of revenue for organised crime, and it has in some cases been linked to terrorist groups.

The withdrawal of the UK from the EU will undoubtedly change the relations between the two entities on this as well as many issues of vital importance. Against this background, this book discusses how the control of illicit trade in tobacco may change following the process of Brexit focusing mostly on the UK market. Estimating the possible impact of Brexit on illicit trade in tobacco products is a challenging task. Based, however, on the available data and applicable legislation, this book anticipates the problems and provides some policy guidance.

Aside from providing valuable data and insights into tobacco illicit trade market in the UK (and the EU where applicable), this book offers a comprehensive overview of the Brexit process setting the stage for the relevant discussion (Chap. 2). This is followed by providing important available data on the UK tobacco illicit trade market (Chap. 3) and the applicable legal instruments to the issue of control of illicit trade in tobacco (Chaps. 4 and 5). In addition, a number of EU (and occasionally global) anti-illicit trade initiatives are thoroughly discussed (Chap. 6) in order to provide a better sense of direction in the future UK policy on this matter (Chap. 7).

Special thanks for inspiration and support on this research go to my friends Pietro Poretti, Abrie du Plessis and Bryan Khan. The present book is published following research conducted for a study funded by PMI Impact, a grant award initiative of Philip Morris International (“PMT”). In the performance of its research, the author maintained full independence from PMI. The views and opinions expressed in this document are those of Grantee and do not necessarily reflect the vi Preface views of PMI. Responsibility for the information and views expressed in this study lies entirely with the author. Neither PMI, nor any of its affiliates, nor person acting on their behalf may be held responsible for any use which may be made of the information contained herein.

Warsaw, Poland Marina Foltea March 2020

Contents

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Chapter 1 A) Introduction E

Over three and a half years after the popular vote, Brexit remains a moving target, particularly with regard to the future relationship between the EU and the UK. The content of this subproject, whilst it was up to date at the time of writing, may have been superseded by recent events.

Estimating the impact of Brexit on licit trade is a challenging task. Over three and a half years after the referendum, many aspects of the separation between the European Union (EU) and the United Kingdom (UK) remain undefined. Assessing the impact of Brexit on illicit trade, by definition a covert and constantly evolving activity, is even more difficult. Although not a priority in the Brexit discussions, the issue of illicit trade in tobacco products has nevertheless attracted some attention, mainly in relation to the border between Ireland and Northern Ireland, recalling past instances of smuggling activities alongside the UK-Irish border. Limited references to illicit tobacco trade are contained 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 of 19 October 2019 (2019 Withdrawal Agreement) with regard to Gibraltar and Spain.

The UK Government’s commitment to fight illicit tobacco trade has remained strong since the publication of its first comprehensive strategy in 2000,! irrespective of the political leadership. Over the years, the estimated market share of illicit tobacco products has diminished, most notably for cigarettes. While approximately 1 in 5 cigarettes smoked in the UK in the year 2000 were smuggled, recent estimates suggest that the current ratio is down to 1 in 10. It is assumed that Brexit will not affect Government resolve to continue the fight against illicit tobacco trade in the UK and more widely in the EU.

Brexit will most definitely modify the relationship between the UK and the EU. The EU is both a single market and a customs union. As an EU member, the UK had the highest possible level of integration with other EU countries. Several post- Brexit scenarios have been envisaged following the immediate aftermath of the 2016 referendum. The four more recurrent scenarios are (i) ‘Soft Brexit —UK remains in

'HM Customs and Excise and HM Treasury (2000)—Tackling tobacco smuggling.

© The Author(s) 2020 1 M. Foltea, Brexit and the Control of Tobacco Illicit Trade,

2 1 Introduction the EU’s single market, but not in its customs union; (ii) Theresa May’s 2018 Deal— UK leaves the single market, but maintains a customs union with the EU; (iii) Boris Johnson’s 2019 Deal—UK leaves the single market and the customs union, and concludes a free trade agreement with the EU similar to the EU-Canada agreement; or (iv) ‘Hard Brexit —future UK-EU relations are simply based on World Trade Organization (WTO) terms.

The terminology such as ‘soft-’ and ‘hard-Brexit’ has not always been used consistently. The four mentioned scenarios are used however to weigh the economic pros and cons of Brexit, e.g. on British exports (goods and services) to the EU, and on the UK’s attractiveness as a destination for foreign direct investment.” These four scenarios have been retained for the purpose of this book as well. Their pertinence may somewhat be limited by the fact that illicit trade is, by definition, an unregulated activity. The different scenarios will however help capture the varying degrees of flexibility for post-Brexit UK that may have an impact on illicit tobacco trade as well as on other matters.

For instance, one could argue that the scenario that offers the lowest possible level of integration, i.e., ‘hard Brexit’, has the highest potential to disrupt illicit trade, including in tobacco products, due to the introduction of tighter border controls compared to the EU frictionless borders. But, the UK is a target country for illicit tobacco with no significant domestic manufacturing. Thus, increased checks at the border may help keep illicit products out of the national market, leading to more seizures and generally deterring illicit imports. Whether the UK will manage to efficiently control tobacco illicit trade into its territory will also depend on the UK’s readiness to cope with post-Brexit realities. Sufficient resources need to be allocated to border control both for merchandise traffic and immigration. In addition, the disruption of existing cooperation between the EU and the UK in terms of information exchange, investigations, and enforcement operations outside of the national territory, could seriously undermine the UK’s capability to fight illicit trade. This will have to be duly factored in by the post-Brexit UK governments.

Against this background, this book assesses the consequences of Brexit for illicit trade in tobacco products in the UK. Based on the currently applicable legal framework, it looks at the significance of a possible non-application of the acquis communautaire in the UK in matters relating to tobacco anti-illicit trade legislation, and analyses several avenues for possible future cooperation between the UK and the EU in this area, as well as possible regulatory scenarios and their consequences.

The book comprises six main sections. After the introduction (in this chapter), Chap. 2 discusses the state of play of Brexit and possible outcomes for the invocation of the Article 50 of the Treaty of European Union procedure. Chapter 3 illustrates the data and trends of illicit tobacco trade in the UK. Chapter 4 describes the relevant legal (e.g. trade and fiscal measures) and enforcement frameworks in the UK on this matter and suggests possible post-Brexit scenarios for sustainably tackling the control of tobacco illicit trade. Chapter 5 focuses on the relevance of pre-existing

London School of Economics Blog (2019)—Brexit will leave the UK worse off economically in all scenarios.

1 Introduction 3 arrangements between the EU and/or its Member States and the tobacco industry in the control of illicit trade in Europe more widely and the options the UK has with respect to these agreements. Chapter 6 then analyses the relevance of key EU and global anti-illicit trade initiatives which can be inspirational for the UK in building its post-Brexit policy on this matter. Finally, and drawing from the analyses in the book, Chap. 7 offers some recommendations and conclusions on what measures are of interest to the UK in controlling illicit trade in tobacco as an EU outsider.

HM Customs and Excise and HM Treasury (2000) Tackling tobacco smuggling. The Stationery Office, London

London School of Economics Blog (2019) Brexit will leave the UK worse off economically in all scenarios, 30 Nov 2019. https://blogs.lse.ac.uk/businessreview/2019/1 1/30/brexit-will-leavethe-uk-worse-off-economically-in-all-scenarios. Accessed 24 Feb 2020

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Chapter 2 A) The UK Process of Leaving the EU get

On 23 June 2016, people in the UK and in Gibraltar cast their vote on the United Kingdom European Union Membership Referendum, also known as the EU Referendum or the Brexit Referendum. Asked to decide whether the country should remain a member of, or leave the European Union, 51.89% of those who took part in the vote chose to leave. Although legally the referendum was non-binding, the UK government of that time, led by Prime Minister David Cameron, had promised to implement the result. The official EU withdrawal process, commonly known as ‘Brexit’ was initiated on 29 March 2017. The complex process is based on the never before used Article 50 of the Treaty on the European Union (TEU). Brexit was originally due to happen on 29 March 2019, i.e. two years after then Prime Minister May triggered the formal process to leave and kicked off negotiations with the European Union.

2.1 State of Play and Possible Brexit Scenarios

The popular vote neither settled the debate nor clarified the tangled question of what should come next. So far, the process of withdrawal has been marked by intense political debate, ministerial resignations, and much speculation. Prime Minister May’s resignation announced on 24 May 2019 and the ensuing leadership contest slowed down the domestic decision-making process. Discussions, at home and with Brussels resumed with the arrival of Boris Johnson, a pro-Brexit leader, at 10 Downing Street on 24 July 2019. Three and a half years after the Brexit vote, the last word has not yet been spoken regarding the terms of this unprecedented divorce. The impact of Brexit on economic activities, both licit and illicit, including trade in tobacco products, therefore remains hard to predict.

Although TEU Art. 50 stating “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements” has never been triggered before, some relevant precedents exist for all scenarios considered.' Under

‘Consolidated version of the Treaty on European Union, OJ C 326, 26.10.2012.

© The Author(s) 2020 5 M. Foltea, Brexit and the Control of Tobacco Illicit Trade, the first scenario, i.e. ‘soft Brexit’, the UK remains in the EU’s single market, but not its customs union. The European Economic Area (EEA) Agreement that brings together the EU Member States and the three EEA EFTA States—Iceland, Liechtenstein and Norway—is an example of how such relationship could be structured.” The second scenario consists of the deal negotiated by the former Prime Minister (PM) May where the UK leaves the single market, but maintains a customs union with the EU. In this case, the arrangement between the EU and Turkey presents an interesting precedent.* Under the third scenario, which reflects the most recent arrangement negotiated with the EU by the current PM Boris Johnson and announced in October 2019, the UK leaves the single market and the customs union and agrees to a comprehensive free trade agreement with the EU. The precedents in these case are practically all the existing FTAs globally. Finally, the fourth and last scenario foresees a ‘hard Brexit’ , i.e. a situation where absent any comprehensive agreement between the parties, future UK—EU relations would be based on World Trade Organization (WTO) terms. This is also common for the countries which are WTO Members but have not concluded additional FTAs among themselves.

Disagreements in the House of Commons regarding the arrangement negotiated with the EU by the current PM Boris Johnson resulted in arranging a short notice general election, held on 12 December 2019. Not surprisingly, the then ongoing process of leaving the EU topped the list of the electorate’s concerns in the run up to the election. The Conservatives campaigned to get Brexit done by pushing through Johnson’s deal and thus structure future economic relations with the EU on the basis of a trade agreement. Labour on the other hand, promised a new arrangement with the EU followed by a popular vote, whereas the Liberal Democrats pledged to fight for a second referendum with the option to stay in the EU unless they win a majority and can enact their policy of revoking TEU Article 50. Many did not hesitate to call the elections “historic”, with voters facing a “historic choice”.* Quite historic was also the landslide victory of the Conservative Party, which received an eighty seat majority (their largest majority since 1987) and winning 43.6% of the vote (the highest percentage by any party since 1979).

The election finally brought clarity to the Brexit process. Thanks to a sizeable majority of the Conservative Party in the UK Parliament, the latter accepted Johnson’s deal on 23 January 2020. The UK Government issued and deposited Britain’s instrument of ratification of the 2019 Withdrawal Agreement on 29 January 2020. The Agreement was ratified by the Council of the European Union on 30 January 2020, following the consent of the European Parliament on 29 January 2020. The United Kingdom’s withdrawal from the European Union took effect on 11 p.m.

?The EEA Agreement was signed in Porto on 2 May 1992 and entered into force on 1 January 1994. Liechtenstein joined on 1 May 1995. See EFTA (2020) and UK in a Changing Europe (2019) EU-Turkey Customs Union.

3The EU-Turkey Customs Union was established on 1 January 1996 by Decision No 1/95 of the EC- Turkey Association Council. See EC-Turkey Association Council (1995), and UK in a Changing Europe (2018).

2.1 State of Play and Possible Brexit Scenarios 7

GMT on 31 January 2020, and at that moment the Withdrawal Agreement entered into force, as per its Art. 185.

Pursuant to Art. 126, the 2019 Withdrawal Agreement provides for a transition period until at least 31 December 2020, during which the UK remains in the single market, in order to ensure frictionless trade until a long-term relationship is agreed. The transition period can be extended once for up to one or two years by a EU-UK Joint Committee, as long as it decides to do so before 1 July 2020.°

During the transition, all EU legislation, rules and court decisions will continue to apply to and in the UK as if it were a Member State. This means the UK will continue to participate in the EU customs union and the single market (with all four freedoms) and in all Union policies. Any changes to EU legislation or rules will automatically apply to the UK.

After the entry into force of the 2019 Withdrawal Agreement, the attention shifted to the future EU-UK relationship, and in particular to the announced trade deal. The EU-Canada Comprehensive Economic and Trade Agreement (CETA) entered into force provisionally on 21 September 2017 has often been cited as a basis for a future relationship.’ The non-binding Political Declaration on the future EU-UK relationship, closely connected to the 2019 Withdrawal Agreement—the two Brexit texts negotiated so far by the parties (described in Sect. 2.2 below)—suggests that a free trade agreement could be at the core of the future relationship between the UK and the EU.®

However, there is only a limited amount of time for a process that is expected to be difficult and tense. For instance, it took Canada and the EU seven years to negotiate CETA. A crucial point will be how much the UK will wish to diverge from existing EU rules. On this aspect, despite the centrality of Brexit in the December 2019 elections, the campaign had little to say about how the UK would approach the future relationship with the EU. While the UK Government has argued that a trade deal can be concluded by the end of December 2020, European leaders have repeatedly sounded alarm bells, warning that the UK’s imposed deadline leaves little time, and that achieving a comprehensive trade deal in 11 months is unrealistic.? As of February 2020, the latter remains subject of negotiations yet to come. Talks are set to commence on 3 March. Should the parties not manage to reach an agreement by the end of 2020 and the transition period is not extended, a no-deal (or ‘cliff-edge’) Brexit would be the default outcome in 2021.

Art. 132 Extension of the transition period’, 2019 Withdrawal Agreement. © Art. 127 Scope of the Transition’, 2019 Withdrawal Agreement. 7See O’ Carroll (2019) Can UK get ‘super Canada-plus’ trade deal with EU by end of 2020?

8Para. 3 of the 2019 Political Declaration reads “[...] this declaration establishes the parameters of an ambitious, broad, deep and flexible partnership across trade and economic cooperation with a comprehensive and balanced Free Trade Agreement at its core, law enforcement and criminal justice, foreign policy, security and defence and wider areas of cooperation.”

°Euronews (2020) Post-Brexit Guide: Where are we now—and how did we get here?

2.2 Relevant Brexit Instruments

The future relationship between the UK and the EU remains to be designed. Negotiations have so far delivered two tangible instruments: a Withdrawal Agreement and a non-binding Political Declaration. For the issue of illicit trade in tobacco products, these instruments are of limited relevance with the exception of the special provisions applicable to the overseas territory of Gibraltar and, to a lesser extent, to the Irish border.

2.2.1 The Withdrawal Agreement

After months of intense negotiations, on 14 November 2018 London and Brussels announced that they had agreed on the conditions for Brexit, set out in the Withdrawal Agreement (the ‘2018 Withdrawal Agreement’).'° This text contains the proposed terms on how to implement Brexit and illustrates the general features of the relationship between the two sides in the short to medium term. The 20/8 Withdrawal Agreement has remained in form of a draft; the House of Commons has voted down the text three consecutive times in the first quarter of 2019 during the May Government.'! After taking office, PM Johnson followed up on his promise to renegotiate the 2018 Withdrawal Agreement with the EU and surprised many when he rapidly secured an alternative deal from the EU27 in the autumn of 2019.

The 2019 Withdrawal Agreement!” which entered into force on 31 January 2020 largely mirrors its predecessor. The main differences are in the Protocol on Ireland/Northern Ireland—or the ‘backstop’ as it is commonly known. The 2019 Withdrawal Agreement provides how goods shall be treated during the transition period starting on Brexit day (31 January 2020) and ending on 31 December 2020. Like its predecessor, the 2019 Withdrawal Agreement does not offer much detail on how the two sides will interact after Brexit. Quite unsurprisingly, the issue of illicit trade, including tobacco products, did not capture much attention in the negotiations.

The 541-page long 2019 Withdrawal Agreement only uses the word “illicit” in relation to tobacco once, namely in the Protocol on Gibraltar, where the UK undertakes to ensure that the ratification of the WHO Framework Convention on Tobacco Control (FCTC) and of the Protocol to Eliminate Illicit Trade in Tobacco Products (ITP) is extended to Gibraltar by 30 June 2020.1? The word “smuggling” appears four

10HM Government (2018) 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 endorsed by leaders at a special meeting of the European Council on 25 November 2018. See also, European Commission (2019) The EU-UK Withdrawal Agreement explained.

!2HM Government (2019) New Withdrawal Agreement and Political Declaration.

132019 Withdrawal Agreement, Protocol on Gibraltar, Article 3 para 3.

2.2 Relevant Brexit Instruments 9 times: three times in the Protocol on Gibraltar and one in the Protocol relating to the Sovereign Base Areas of the United Kingdom of Great Britain and Northern Ireland in Cyprus.'* Finally, the 2019 Withdrawal Agreement mentions the word “tobacco” six times. Beside the above-mentioned Protocol on Gibraltar,'> “tobacco” is mentioned in Annex 2 and 3 to the Protocol on Ireland/Northern Ireland which contains references to the 2014 EU Tobacco Products Directive'® and to Council Directive 2011/64 on the structure and rates of excise duty applied to manufactured tobacco. These provisions of EU law, discussed in the subsequent sections, will continue to apply to and in the UK in respect of Northern Ireland.

2.2.2 The Political Declaration

Beside the 2019 Withdrawal Agreement, the UK and the EU agreed on a non-binding statement of future relations in the form of a Political Declaration Setting out the Framework for the Future Relationship between the European Union and the United Kingdom (2019 Political Declaration). Like the Withdrawal Agreement, the Political Declaration, was first signed on 25 November 2018 by the Government of former PM Theresa May. The Political Declaration sketches out the kind of long-term relation that the UK and the EU want to have in a range of areas, including trade, defence, and security. By and large, the 2019 Political Declaration reflects the content of the 2018 document. With respect to certain elements however, the new version has been ‘watered down’, reflecting the different stance of the May and Johnson premierships. In particular, the aspirations for a close future trading arrangement seem somewhat reduced in the new text. For instance, while the original version aspired to an “as close as possible” future trading relationship with the EU, that phrase was replaced by “ambitious” in the revised text. Some commentators have suggested that the current UK Government aims at establishing more distant economic ties with the EU than what its predecessor had in mind, a relationship characterised by less regulatory alignment and greater trade barriers between Britain and its largest trading partner.!’

Despite the very general language, some elements of the 2019 Political Declaration can nevertheless be retained for the purpose of this work. For instance, document opens with the general statement that “The future relationship [...] [w]hile it cannot amount to the rights or obligations of membership, [] should be approached with high ambition with regard to its scope and depth, and [...] might evolve over time”

142019 Withdrawal Agreement, Protocol relating to the Sovereign Base Areas of the United Kingdom of Great Britain and Northern Ireland in Cyprus, Article 2 para 6.

'SThe 2019 Withdrawal Agreement, Protocol on Gibraltar refers to the Memoranda of Understanding concluded between the Kingdom of Spain and the United Kingdom in November 2018 in relation to citizens’ rights, tobacco and other products, cooperation on environmental matters and cooperation in police and customs matters, as well as the agreement to conclude a treaty on taxation and the protection of financial interests.

'6Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014. '7See, for instance Milliken and John (2019).

(Paragraph 5). With regard to tariffs, Paragraph 22 provides that “The economic partnership should through a Free Trade Agreement ensure no tariffs, fees, charges or quantitative restrictions across all sectors with appropriate and modern accompanying rules of origin, and with ambitious customs arrangements that are in line with the Parties’ objectives and principles above.” With regard to customs, “The Parties will put in place ambitious customs arrangements []. In doing so, the Parties envisage making use of all available facilitative arrangements and technologies [] and ensuring that customs authorities are able to protect the Parties’ respective financial interests and enforce public policies. To this end, the [UK and the EU] intend to consider [] administrative cooperation in customs matters and mutual assistance, including [] through the exchange of information to combat customs fraud and other illegal activity []”, as stated in Paragraph 24.

On global cooperation, Paragraph 75 of the 2019 Political Declaration promotes cooperation in international fora, where there is mutual interest, including in the area of public health and consumer protection. Another aspect of the future relationship relevant to the fight against illicit tobacco trade is law enforcement and judicial cooperation in criminal matters, as discussed in Paragraphs 80-89 of the 2019 Political Declaration. According to Paragraph 82, the future relationship “will provide for comprehensive, closed, balanced and reciprocal law enforcement and judicial cooperation in criminal matters, with the view to delivering strong operational capabilities for the purposes of the prevention, investigation, detection and prosecution of criminal offences, taking into account the geographic proximity, shared and evolving threats the Parties face, [and] the mutual benefits to the safety and security of their citizens [...]”. The three main areas of cooperation, to be covered by future arrangements, are data exchange; operational cooperation between law enforcement authorities and judicial cooperation in criminal matters; as well as anti-money laundering and counter terrorism financing.

The press that covered Brexit only made sporadic references to the problem of illicit tobacco trade in relation to departure of the UK from the EU, in particular in relation to the risk of increased smuggling across the Irish border. As mentioned above, the Withdrawal Agreement (both in the original 2018 and revised 2019 versions) mainly refers to illicit trade and tobacco in the Protocol on Gibraltar, an instrument sought by the Spanish Government which is discussed in Sect. 2.4 below. The following sub-section maps out in greater detail the possible impact of Brexit on the control of illicit trade in the region.

2.3 Possible Impact of Brexit on the Control of Illicit Trade in Tobacco

The impact of Brexit on the control of illicit trade in tobacco products can be analysed by looking at how the completion of the TEU Art. 50 procedure may impact UK legislation as well as the regulation of the UK—EU border. As an EU Member, the

2.3 Possible Impact of Brexit on the Control of Illicit Trade in Tobacco 11

UK was bound to EU legislation, including legislation that directly or indirectly relates to tobacco control and trade. The most relevant legislation for this discussion is the UK law (including in the form of EU-derived domestic legislation), and the EU Withdrawal Act of 2018,'* which provides for a retention of the directly applicable EU legislation. Post-Brexit, the UK will be able to amend its legislation unilaterally where and how it deems necessary, as well as to refrain from adopting new rules developed by the EU. This may result in differences in the applicable regulatory frameworks to the relevant territories—a situation that illicit activities can try to exploit. Due to the geographic situation of the UK and the cross-border nature of illicit tobacco trade, two areas of the UK territory are of particular interest from this perspective, namely Gibraltar and the area surrounding the Irish border.

2.3.1 Impact on the UK Legislation

Legal certainty is necessary for economic activity to flourish whereas, typically, illicit activities attempt to benefit from legal uncertainty. Because of the way in which EU law works and how it is implemented at the national level, the withdrawal from the EU would have a major impact on future UK legislation.

EU law today covers a broad range of areas but not all EU legislation has the same effect on Member States. There are two main ways in which EU law applies, namely through regulations or directives. Starting from the latter, once passed at the EU level, directives have to be implemented (or ‘transposed’) into domestic legislation before they can be binding on individuals and companies.'° In the UK, directives are implemented either by primary legislation (i.e. an Act of Parliament) or, much more commonly, by secondary legislation (a Statutory Instrument). The implementing legislation is domestic legislation and thus part of the UK’s legal system. For instance, in the area of tobacco control, the UK has adopted the Tobacco Products (Traceability and Security Features) Regulations 2019 to implement track and trace and security features for tobacco in the UK, as required by the EU Tobacco Products Directive, discussed in detail below. On the contrary, EU regulations, once passed at the EU level, are directly applicable and binding on individuals and companies in the Member States without the need for national implementation measures. There are currently about 12,000 EU regulations in operation in the UK. The same applies to decisions, although these are only binding on those to whom they are addressed.