The Future of EU Retained Law: Ensuring a Level Playing Field for Public Law Cases

Delve into the implications of retained EU law versus regime changes post-2021, focusing on maintaining fair competition, transparency in procurement, and preventing distortion or unlawful subsidies. Explore the concept of SPEI in the context of serving the public interest. Discover how public competition law under the TCA addresses non-discrimination provisions and remedies for challenge.

• EU law
• Level playing field
• Public law
• Competition
• Procurement

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1. ALBA Summer Conference 7.7.2021 The Future of EU Retained Law Level Playing Field for Public Law Cases? Anneli Howard MA BCL Barrister

2. Aims of Level Playing Field Effective competition between UK and EU firms to deliver dynamic market economy Ensure no distortion of competition by state owned enterprises Access to exclusive rights for public services ( SPEIS ) Procurement: Transparency and equal treatment in bidding for public contracts No centrally planned economy or bailouts of unsuccessful businesses No unlawful subsidies to domestic firms No undercutting on labour or environmental standards Acting as a responsible trade partner

3. Retained EU Law or Regime Change? Only applicable to 31 December 2021 Transition regime for ongoing investigations and damages claims Replaced by Chapter I and II prohibition Competition Law Arts 101/102 TCA commitments for state aid EU state aid provisions continue to apply under NIP New domestic subsidy control Bill State Aid/Subsidies TCA commitments for state aid EU state aid provisions continue to apply to goods under NIP New regime awaited for GB goods and services Procurement www.monckton.com +44 (0)20 7405 7211

4. PUBLIC COMPETITION LAW www.monckton.com +44 (0)20 7405 7211

5. Public Competition Law: TCA contains Non discrimination and MFN provisions re covered entities : State owned enterprises (e.g. public private partnerships); Designated monopolies (e.g. sole supplier); Special rights and privileges to carry out public services BUT NOT: procuring entities or services supplied in exercise of governmental authority [GATS]. Direct rights of challenge before national courts judicial review TCA Remedial measures (Art 3.12); Rebalancing measures (Art 9.4) and fast track dispute resolution. www.monckton.com +44 (0)20 7405 7211

6. What are SPEI? s.29(9) BILL: Service in the public interest i.e. for citizens or society as a whole = provided against remuneration Awarded in transparent manner: Tender or published notice Mandate entrusting services and KPIs Legally binding contract or arrangement Review Service in the Public Interest SPEI Remuneration limited to costs and reasonable profit margin Clawback of any excess No Transparency excess compensation

7. SUBSIDY CONTROL www.monckton.com +44 (0)20 7405 7211

8. Subsidy Control Parallel Subsidy Commitments from 1 January 2021 NORTHERN IRELAND: The (limited) continued application of EU State aid rules under the NI Protocol to the UK-EU Withdrawal Agreement: applies to aid measures which could affect trade in goods and electricity between NI and the EU GREAT BRITAIN: The new TCA rules on subsidy control: have force of law within the UK by virtue of the section 29 of the European Union (Future Relationship) Act 2020

9. BEIS Consultation 3 Feb 2021 TCA Flexible principles for domestic regime Opportunity to demonstrate Brexit dividend Strategic objectives for R&D, AI, technology, environment Levelling up fund for regeneration and innovation to address regional imbalances Balance needs of all 4 countries in the United Kingdom Avoid subsidy races for investments and jobs Wider international perspective: International obligations TCA/NIP/ WTO ACSM Future FTAs and possibly CPTPP Internal Market Act www.monckton.com +44 (0)20 7405 7211

10. Northern Ireland Protocol NIP has direct effect in the UK (Art 4 WA; s.7A EU Withdrawal Agreement Act 2018) NIP applies to goods not services Article 10: - The provisions of Union law listed in Annex 5 to this Protocol shall apply to the United Kingdom in respect of that trade between Northern Ireland and the Union which is subject to this Protocol Annex 5 lists all EU State aid Regs and Communications Art 12 - Enforced by EU Institutions and decisions have same legal effect as in the EU www.monckton.com +44 (0)20 7405 7211

11. Subsidy Control Bill Sections 2 -5: concepts broadly similar: Subsidy state aid = grant, loan or financial assistance from central, regional or local government Financial assistance may be direct or indirect from private sources Specific selective = benefit not available on commercial terms and distorts competition by conferring economic advantage Prohibited subsidies: No unlimited guarantees to failing businesses (even if not prohibited by WTO) Not contingent on export performance Not contingent on use of domestic goods or suppliers Triage exemption for subsidies of low value, review of subsidies of interest and particular interest www.monckton.com +44 (0)20 7405 7211

12. Schedule 1 principles Section 12 duty on public authorities to apply the principles to ensure objective justification: Public policy justification in common interest : remedy an identified market failure, or address an equity rationale (such as social difficulties or distributional concerns) Appropriateness, Necessity and Proportionality Least distortive means of achieving policy objectives Incentives to change corporate behaviour Transparency No excessive compensation or cross subsidy Positives outweigh negatives NEW Minimise negative effects on competition or investment within the UK internal market agenda www.monckton.com +44 (0)20 7405 7211

13. Enforcement and remedies CMA to act as UK independent body [Chapter 3 TCA/Part 4 Bill]: Mandatory referral of subsidies of particular interest Voluntary referral of subsidies of interest Call in power by SOS (even after award is made) Cooling off period 5 working days CMA has amendment and recovery powers Judicial Review of CMA decisions before CAT w/in 1 month Judicial powers to suspend, prohibit, award damages or recover subsidy www.monckton.com +44 (0)20 7405 7211

14. International Public Enforcement NIP Direct rights under EU State aid regime TCA Remedial measures [Art 3.12] Unilateral measures w/in 60 days of request TCA Rebalancing measures [Art 9.4] Mutually exclusive [Art 3.12(15) TCA] Significant divergence capable of impacting trade/investment No direct rights in dispute settlement provisions Indirect input to reliable evidence of significant negative effect on trade or investment? www.monckton.com +44 (0)20 7405 7211

15. PUBLIC PROCUREMENT www.monckton.com +44 (0)20 7405 7211

16. Quick update on public procurement provisions in the TCA : EU-UK TCA Title VI Trade and Annex PPROC-1: Aim for EU and UK suppliers access to increased opportunities to participate in awards procedures; TCA expressly incorporates the GPA and EU and UK Annexes into the TCA [PPROC-2]; Parties will apply GPA provisions to suppliers, goods or services of the other party; Additional obligations re use of electronic means; and Increased remedies via independent body, plus provisions for interim relief, compensation and standstill obligation pending review or correction. www.monckton.com +44 (0)20 7405 7211

17. Cabinet Office Green Paper reform proposals: Levelling up of UK regions; Green revolution; and Covid recovery. New Principles: Value for money; Public good; Transparency; Integrity; Efficiency; Fair Treatment of suppliers; and Non-discrimination. Aims: www.monckton.com +44 (0)20 7405 7211

18. Cabinet Office Green Paper reform proposals: Key Reforms: Replace 350 regulations (PCRs, UCRs, CCRs, DSPCRs) with single uniform set of rules; Three award procedures : (i) flexible negotiation; (ii) open off the shelf competitions; (iii) limited procedure. Move from MEAT (EU test) to MAT (GPA test) broader view incl. social value; Single central digital platform and Dynamic Purchasing System; Increased transparency; and Faster, more accessible judicial review and capped damages to reduce vexatious claims. www.monckton.com +44 (0)20 7405 7211

19. What to do while we wait.. NI Goods: EU procurement law (incl Art 346) continues to have same effect for goods. GB goods and Services/ NI Services: EU regime has been implemented in the form of the PCRs, DSPCRs, CCRs and UCCRs; Treated as EU-derived domestic legislation s.2 UEWA 2018; and Until it is modified by Parliament, UK Courts will interpret it in line with EU principles and case law in force as of 31 December 2020: Court of Appeal and Supreme Court may disregard CJEU case law when they consider it right to do so ; and Future CJEU rulings not binding but Courts may have regard . Move from EU technicalities to general principles creates uncertainty and litigation risk www.monckton.com +44 (0)20 7405 7211

20. Thank You Any Questions ANNELI HOWARD ahoward@monckton.com www.monckton.com 20