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United Kingdom | Consultation on New Regime on Subsidy Control, introduced

With the advent end of transition period on 31st December, 2020, following the exit of UK from EU, the UK Government’s Department for Business, Energy & Industrial Strategy announced to consult on the creation of a new national subsidy control system on 3rd February, 2021[1]. This is the Consultation[2] as State Aid Rules were one of the three final issues that held up the agreement of the EU-UK Trade and Cooperation Agreement (TCA).

The Government seeks views from businesses and business representative organisations, subsidy granters, legal advisers and all other parties interested in subsidy control. Alongside digital responses, the Government intends to hold stakeholder engagement events on a number of topics during the consultation period. The Consultation[3] consists of three chapters, setting out the options available to the UK to design a bespoke subsidy control regime.

According to the Secretary for State for Business, Energy and Industrial Strategy:

“This consultation sets out the future of the UK’s subsidy control regime – a regime that will set out a clear and transparent set of principles and guidelines, ensuring that public authorities at all levels of government fully understand their legal obligations, and which will allow businesses to make long-term investment decisions on that basis.”

BACKGROUND

The introduction of this Consultation invites views on the best ways to design the new subsidy control regime fulfilling the international obligations of UK with respect to World Trade Organisation (WTO), Free Trade Agreements (FTA), UK- EU Trade and Co-operation Agreement and the Protocol of Ireland and the withdrawal agreement. Subject to the outcomes of this consultation, the Government will bring forward a primary legislation to establish a system of subsidy control that works for the whole of the UK. Subsidies are administered by all levels of government in the UK. The Government stresses that the new Regime, while encouraging the local authorities and administrations to take localized decisions, must avoid subsidy races which might distort competition between the UK nations.

Salient Features of the Consultation:

The Consultation consists of 43 questions dealing across a range of areas. The key topics referred are hereinbelow:

  1. The Government considers that there are four key characteristics of a subsidy. A support measure must meet all of these to be classified as a subsidy for the purposes of any regime:
  1. The Government provides various principles to be kept in mind while designing the new regime and seek views on whether there should be any additional principles to be considered also what information would be helpful to public authorities in order to consider effectively their compliance with the principles.
  2. The Government is seeking views on the proposal to introduce exemptions to ensure for the lowest risk and most time-critical subsidies can proceed quickly. Proposed exemptions are :
  1. The Government further proposes to prohibit certain forms of subsidy. These include:
  1. The Government proposes to make the following subsidies subject to conditions:
  1. The Government intends to protect the UK’s internal market. The Consultation proposes to have a flexible system that empowers public authorities to design and award subsidies that bring benefits for society whilst providing clarity and certainty to both subsidy givers and recipients.
  2. The Government seeks views on whether specific categories of subsidies (such as for disadvantaged areas, R&D, transport, and skills investment) would benefit from tailored provisions, including whether the areas in the non-binding TCA declaration should be covered and whether any additional sectors or categories should be considered and, if so, the nature and extent of those provisions.

The Consultation closes on 31st March, 2021.

*Tanvi Singh, Editorial Assistant has put this story together

[1] Press Release, Business Secretary sets out new subsidies system that works for the UK. <https://www.gov.uk/government/news/business-secretary-sets-out-new-subsidies-system-that-works-for-the-uk>

[2] <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/957958/subsidy-control-consultation-document.pdf>

[3] Supra.

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