This chapter examines investment-related aspects of the energy–environment nexus. State actions against fossil fuel investments often have an environmental cause, raising the issue of policy space under the investment regime. The doctrine of ‘police powers’ provides grounds for qualifying some pro-environmental interventions as non-compensable non-expropriatory measures. In addition to seeking policy flexibilities, many States wish energy investors to voluntarily bear social responsibility on the environmental front. As a result, a number of IIAs provide for responsible business conduct, bringing some changes to the ‘investor vs. State’ asymmetry in the investment system. A surge in renewable energy ISDS cases in the last ten years is another noticeable trend. High upfront costs of renewable energy projects recoupable in a long run necessitate FIT or other long-term benefits to investors. But when the government suddenly cancels or cuts promised incentives, this frustrates investors’ legitimate expectations under IIAs but may also be welcomed under trade law as a way of getting rid of distortive subsidies. Thus, some discrepancy or tension between the trade and investment regimes can arise.

State aid law controls public spending by Member States by prohibiting aid which damages the internal market and encouraging spending on projects of interest to the EU economy. The Court of Justice plays a central role in delimiting the scope of application of State aid law. The Commission has extensive powers to investigate State aid and may order recovery of funds that are granted illegally. This remedy harms the beneficiary but does little to deter the Member State granting aid. The Commission has been successful in reducing the grant of State aid and encouraging States to fund certain types of State aid which contribute to the EU’s emerging industrial policy. Moments of economic chaos like the financial crisis in 2008 and the Covid-19 pandemic led to a significant relaxation of State aid discipline but the Commission used these two crises to press for further economic integration in the form of the Banking Union and the Recovery and Resilience Facility respectively.

State aid took on significance during and in the immediate aftermath of the Brexit referendum’s campaign. This chapter argues that this was a result of campaigners’ misunderstandings regarding the nature of the EU’s state aid regime. The second section considers the two agreements that define the future UK–EU relationship: the withdrawal agreement and a EU–UK Trade and Cooperation Agreement governing the parties’ post-Brexit relationship. It discusses the implications of these agreements for the post-Brexit competition regime. The third section suggests what the UK’s competition provisions might look like post-Brexit. The analysis shows that there is little that has or can be gained through this new regime. The fourth section considers the subsidy provisions which are contained in the agreements between the EU and UK. These provisions give the government greater scope to subsidise firms, industries and regions in the name of industrial policy and regional equity. The chapter is sceptical about the utility of the anticipated post-Brexit industrial policy and competition regime. It appears that the new regime will incorporate many elements against which we have cautioned against in this work.

State aid took on significance during and in the immediate aftermath of the Brexit referendum’s campaign. This chapter argues that this was a result of campaigners’ misunderstandings regarding the nature of the EU’s state aid regime. The second section considers the two agreements that define the future UK–EU relationship: the withdrawal agreement and a EU–UK Trade and Cooperation Agreement governing the parties’ post-Brexit relationship. It discusses the implications of these agreements for the post-Brexit competition regime. The third section suggests what the UK’s competition provisions might look like post-Brexit. The analysis shows that there is little that has or can be gained through this new regime. The fourth section considers the subsidy provisions which are contained in the agreements between the EU and UK. These provisions give the government greater scope to subsidise firms, industries and regions in the name of industrial policy and regional equity. The chapter is sceptical about the utility of the anticipated post-Brexit industrial policy and competition regime. It appears that the new regime will incorporate many elements against which we have cautioned against in this work.

This chapter outlines the relevant provisions of the EU (and Member State) competition regimes. The purpose of this is to describe the legal architecture by which agreements among competitors and competitive practices are evaluated. As the EU’s competition provisions do not exist in isolation from other Treaty provisions, those that have a bearing on how the competition provisions are interpreted are also described. This provides a background for the argument of the remainder of the book.

The economic disruption resulting from the pandemic has resulted in suggestions from the business community that these rules should be relaxed. As examples, the grocery industry pressed for the competition rules to be relaxed so that major grocery chains could ensure that stores remained open and stocked in the face of staff shortages and supply chain/logistics disruptions. Relaxing the rules, the industry argued, would allow the public to be better served. The chairman of a retail chain criticised the decision to block that firm’s prosed take over of a rival as being ‘absurd’ given the retail conditions, suggesting that that merger rules be relaxed to allow the retail sector to survive. The grocery industry’s pleas were successful: the government relaxed the competition regime applicable to that industry. This chapter analyses the need for these proposals to relax the competition in the economic context surrounding Covid-19. In particular, it argues that even in the context of this disruption, relaxing the competition rules was the wrong response.

This chapter considers the response of European authorities (both EU and Member State) to the 2008 financial crisis. It first considers the background to the financial crisis, particularly regarding how banks and other financial institutions shifted in the way in which mortgages were sold throughout the financial system. The second section uses the 2007 failure of the UK’s Northern Rock as an illustration. The third section examines the events of autumn 2008. It examines state aid regimes put in place not only to reintroduce stability into the financial system, but also to aid the recovery of the real economy. The fourth section considers merger policy in the financial crisis. In two Member States, the UK and the Netherlands, the competition authorities approved mergers that further concentrated already concentrated markets. We suggest that governmental responses to mitigate the consequences of the programme, via aid packages, were the appropriate response to mitigate the effects of this failure. However, a more lenient approach to merger control in the financial sector, which was seen in some Member States, was an inappropriate response.

This chapter provides an overview of what the Protocol does and why it does it. This is a more challenging task than one might initially imagine because the Protocol is written with what one might generously describe as calculated ambiguity, or, less charitably, outright evasion. What the Protocol does is not what it says. Elucidating its true meaning requires a journey through four particular matters: (i) the customs territory to which Northern Ireland belongs, (ii) the effect on West to East (Northern Ireland to GB) trade, (iii) the effect on East to West (GB to Northern Ireland) trade, and (iv) state aid. Each of these issues is considered in greater detail in subsequent chapters. The argument of this chapter is that the approach to drafting the provisions of the Protocol is the same: in each case, the Protocol is written in a way that understates the nature and the extent of the commitments made on the UK side.

This chapter considers the status of state aid, post-Brexit. One paradoxical result of the way in which the Johnson government handled the negotiation of the WA and the TCA is that, despite its general lack of enthusiasm about scrutiny of its decisions by independent or judicial bodies, it has ended up with not just one subsidy control regime governing its decisions on subsidies but two (the TCA regime and Protocol Article 10). That is not ideal from anyone’s point of view. There are many examples of issues under the Protocol that could give rise to serious political difficulties. But since disputes over the application of state aid law can affect the legality of critical economic decisions (taxation, rescue of important businesses), the political difficulties that could be caused by differences between the EU and the UK government approaches to Article 10 could well rank among the most serious.

Chapter 8 reviewed the increasing impact of the State aid prohibition on EU corporate tax law. This Chapter showed how this prohibition has affected the design of a country’s tax system and certain aspects of its administration. The central role of the Commission and, to a lesser extent, national courts was explored. Relevant soft law and some important case law in this area were considered, before some of the high profile investigations focusing on tax rulings were analysed (e.g. Belgian Excess Profits, Staburcks, Fiat, Apple etc)

This chapter provides a concise overview of European competition policy, with a focus on financial services. The chapter first defines competition and describes the objectives of EU competition policy, i.e. maintaining competitive markets and a single market in the EU. The ultimate goal of competition is to offer consumers a greater choice of products and services at lower prices (i.e. to enhance consumer welfare). The second part of the chapter analyses the economic rationale for competition policy by examining the difference between a perfectly competitive market and a monopoly. The third part of the chapter elaborates on the four tools of EU competition policy. The fourth part of the chapter discusses a framework for investigating the abuse of dominance

Discusses the jurisdiction or right to tax international commercial transactions, including identification of relevant connecting factors, which may be based on the person deriving the income or activities producing the income. In the context of persons, the discussion considers the characterisation of persons under domestic law and its interaction with entity characterisation under tax treaties. It moves to consider residence as a connecting factor, both under domestic law and tax treaties and tax treaty tiebreakers applicable to dual residents. Residence is fundamental to the application of tax treaties. The discussion briefly considers the location of activities that found a jurisdiction to tax based on source of income. These matters are compared to the scope of the fundamental freedoms and relevant Directives under EU Law. The discussion then considers divided economic allegiance and particularly where source and residence are divided between countries. Various notions of neutrality and efficiency are discussed, as well as rules preventing cross-border restrictions, including nondiscrimination. Focus moves to the internation relationship including the OECD harmful tax competition project and BEPS project. These are compared with EU state aid rules and the EU code of conduct on harmful tax practices. Methods of allocating tax rights are discussed.