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The Squaring of the Circle: journal article

Subsidy Control Under the UK-EU Trade and Cooperation Agreement

Totis Kotsonis

European State Aid Law Quarterly, Volume 20 (2021), Issue 1, Page 15 - 29

The article provides an overview of the subsidy control commitments under the TCA and considers their implications for UK subsidy control regulation. Issues considered in this context include the extent to which TCA subsidy control differs from EU State aid rules and what additional flexibilities this might offer. Consideration is also given to the remedies available to interested parties with concerns about the grant of a subsidy, the inter-Party dispute resolution mechanisms, the availability of unilateral trade defence measures, as well as the question of the different levels of harm to trade or investment for which different TCA provisions provide. The article also highlights certain areas which require further attention, including the fact that the current UK subsidy control regime is not concerned with the potentially competition distortive effects of a subsidy on the UK internal market. Separately, the article considers the question of whether the absence of a prior notification requirement has an impact on the effectiveness of the UK subsidy control system. Keywords: subsidy control; UK; TCA; level playing field; trade; Brexit


The Design of Enforcement Institutions: journal article

Lessons from the UK’s New State Aid Control Regime

Phedon Nicolaides

European State Aid Law Quarterly, Volume 20 (2021), Issue 3, Page 370 - 383

Now that the UK is no longer a member of the European Union it has to substitute the EU system of State aid control with its own system for the control of subsidies. Brexiters have argued that this presents a unique opportunity to the UK to design a system that is less cumbersome and more effective than that of the EU. This article examines how the draft Subsidy Control Bill intends to address the three problems of the design of institutions responsible for the control of State aid or subsidies; ie the problems of discovery, assessment and enforcement. If finds that, by comparison to the EU system, the proposed UK system seems to grant more leeway to public authorities and to impose fewer formal requirements but also to require assessment of most subsidies by the Competition and Markets Authority (CMA). At the same time, the greater leeway creates more uncertainty about the conformity of subsidies with the various principles laid down in the Subsidy Control Bill. The Bill also leaves several issues unclear, especially with regard to the status of subsidies which are not referred to the CMA or subsidies which are granted contrary to CMA recommendations. The powers of the CMA are certainly more limited than those of the Commission. Keywords: EU-UK Trade and Cooperation Agreement; UK Subsidy Control Bill; State aid regime; Competition and Markets Authority; Competition Appeal Tribunal.


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