It is not clear that the UK government appreciated the full significance of the state aid provisions of the Northern Ireland Protocol when the agreement was concluded last autumn. The UK will be required to comply with EU state aid rules where any UK measure potentially affects trade between Northern Ireland and
the EU – catching many UK-wide tax measures in consequence. bThe Protocol also preserves a substantial enforcement role for the Commission and the CJEU. Looking ahead, the requirement to follow these rules will complicate any attempts by the UK to set up an independent WTO-style anti-subsidy regime in future.
The Financial Times “Britain risks losing access to EU legal accord” (27 April 2020) reports that the EU 27 have been advised by the European Commission that a quick decision on the UK’s application to join the Lugano Convention was “not in the EU’s interests.” The Lugano Convention regulates cooperation in civil judicial and commercial matters between the EU 27 and Switzerland, Iceland and Norway. It is designed to facilitate rights and remedies for individuals, consumers and companies in legal relationships with a cross-border aspect. The UK is only a member of the Convention through its EU membership and if its application to re-join in its own right is rejected the Convention will cease to apply after the end of the transition period on 31 December 2020. Ben Rayment of Monckton Chambers is quoted in the FT’s article regarding the potential implications of the UK’s application being refused.
“The concept of ‘national security’ – or, to use the EU’s preferred term, ‘public security’ – is most usually associated with defence, dual-use technologies and critical energy and communications infrastructure. The Covid 19 crisis has demonstrated, however, the importance of a broader range of industries and commercial activities to countries’ fundamental interests. The infrastructure and businesses on which life and essential well-being depend have been shown to include food distributors, factories making personal protective equipment (PPE), and technology enterprises capable of turning their hands quickly to making medical equipment such as ventilators. Faced with a pandemic, countries will seek to prioritise the needs of their own populations. In a world which has become highly interdependent, the pandemic has highlighted the problems countries may face if they lack control of the technology and manufacturing facilities needed to respond to a major public health emergency.”
Please click here to read the article published in the online company law bulletin FP Post on 23 April 2020.
The Protocol claims that Northern Ireland will remain part of the UK customs territory, but in substance most EU customs rules will continue to apply, placing significant restrictions on GB/NI trade. Under the expansive definition of goods ‘at risk’ of onward movement into the EU market, EU duties are likely to apply to the
majority of goods, and the UK’s power to reimburse or waive these duties will be subject to the full EU state aid regime, as overseen by the Commission. EU institutions, including the CJEU, will have a significant role in oversight and enforcement.
Professor Panos Koutrakos has written an analysis of the relationship between international investment arbitration and EU law. It is entitled ‘The anatomy of autonomy: themes and perspectives on an elusive principle’ and is published by the European Central Bank in the recent volume Building bridges: central banking law in an interconnected world. It is based on a talk he gave at the 2019 Legal Conference that the European Central Bank organised last year.
Professor Koutrakos analyses the ways in which the European Court of Justice has construed the linkages between EU law and investment arbitration in recent rulings, including Opinion 1/17 on the Comprehensive Economic and Trade Agreement (CETA) between the EU and Canada, as well as Case C-284/16 Achmea. It also explores the practical implications of the Court’s approach.
Alison Berridge, Alexandra Littlewood and Ciar McAndrew, public law barristers at Monckton Chambers, highlight the points of interest from August-September decisions of the First-Tier and Upper Tribunals in the Freedom of Information Journal.