The General Court’s decision in the Apple case (Cases T-778/16 and T-892/16) shows the difficulties the European Commission faces in proving selective tax advantages that may constitute unlawful state aid. As was established in Portugal v Commission, ‘the very existence of an advantage may be established only when compared with “normal” taxation.’ In Apple, the crux of the dispute concerned the application of Irish rules on the profits properly attributable to and taxable on the Irish branches. The Commission’s decision, that a selective advantage had been granted, was not based on the actual activities of the branches. The Commission wrongly adopted the ‘exclusion approach’, attributing to the branches what it considered was not attributable to the US head office.

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Britain faces a fateful decision. If it wants an FTA with the EU, says Carl Baudenbacher (Monckton Chambers/LSE), it will need to either sign up to EFTA/EEA institutions, or accept the Ukraine model – which will mean it is still under the jurisdiction of the ECJ.

Please click here to read the article published by the LSE Blog.

Undermining commercial reality?

The decision of the Upper Tribunal (UT) in HMRC v Royal Opera House Covent Garden Foundation [2020] UKUT 132 (TCC) will be a disappointment not just to the Royal Opera House (ROH), but the theatre industry more widely, particularly given the other problems which the sector is currently facing. However, even had the First-tier Tribunal (FTT) decision been upheld, HMRC might well have sought to confine the case to the unique circumstances of the ‘fully integrated’ operatic-cum-dining experience of a Covent Garden performance, and consequently have refused to allow theatres to attribute production costs to supplies of refreshments in their bars more generally.

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How do things look in the Covid era? Michael Bowsher QC and Ben Rayment consider the thorny issues around emergency procurements. This article was published in Local Government Lawyer on 02 June 2020 – read here. It first appeared, however, on Michael Bowsher’s recently launched Mostly Procurement blog on 20 May.

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.

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In conversation with Ronit Kreisberger QC – See p8 here.

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 Finacial Times Article can be found here.

Further background on the Lugano Convention can be found on the Monckton Brexit blog  here.

And in the Bar Council’s briefing paper on the Lugano Convention here.

“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.

 

Please click here to read the article published by the FC Post.

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.

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