UK subsidy control post-brexit: Experiments in private enforcement

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For many Britainophiles in the EU, the noise of the Brexiteers and their shouting about “world-beating Britain” during the last five years of the departure process have been hard to bear. However, the constant banging has also at times obscured the excellent work still being carried out by legal minds on the other side of the English Channel. This became clear during the British Government’s consultation process on the new “Subsidy Control Bill”. This bill is supposed to take on a pivotal role in post-Brexit relations. The “EU-UK Trade and Cooperation Agreement” (TCA) provides in Articles 363 et seq. that the UK shall establish an effective subsidy control system in which an independently operating authority shall play an appropriate role.

It is fascinating to see the high level of expertise with which stakeholders have participated in this reform process. Here, however, the well-founded input came largely from people in the Remainer camp, mostly private practitioners working in state aid law. In contrast to that, statements from the Brexit camp tended to be limited to the usual buzzwords, such as “take back control,” “sovereignty,” “freedom”, “[no] approval by unelected EU bureaucrats [any more]”, “getting rid of the chains from Brussels”, etc. Given the British Government’s determination to “get Brexit done” at any cost, it was hardly surprising that the contributions from Remainers received only limited consideration in the draft. The proposed bill is a prime example of political and highly symbolical legislation. This, of course, does not help to achieve the ultimate purpose of competition law, i.e., minimizing distortions of competition.