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Now seen (ht @AntonSpisak) the text of the declaration https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/943234/Draft_unilateral_declarations_by_the_European_Union_and_the_United_Kingdom_of_Great_Britain_and_Northern_Ireland_in_the_Withdrawal_Agreement_Joint_Committee_on_Article_10_1__of_the_Protocol.pdf https://twitter.com/georgeperetzqc/status/1337102133431332867
It doesn’t use the useless word “abusive”. But my point that “the EU in the Joint Committee” doesn’t decide what Article 10 means stands: that is for the Court of Justice, as provided for by Article 12.
As to reference to “hypothetical, presumed, or without a genuine and direct link”: it adds nothing. (Would any court ever hold that a hypothetical, presumed, or non-genuine effect was enough?).
And as to the final sentence, ECJ case law already refers to the need to show that an effect “is liable” to have an effect (see eg Case C-518/13 Eventech at [65].
The question is what courts - and the ECJ - are prepared to accept as showing something going beyond the “hypothetical or presumed” and amounting to “liable”. And the ECJ has operated a very forgiving approach to those trying to jump that threshold.
Eventech is a case study: the ECJ said it was possible that banning minicabs in London from using taxi lanes could be “liable” to affect trade between member states. And it repeated some points.
An aid could be “liable” to affect trade even if the recipient was small or did not itself engage in interstate trade but operated only in a limited area; or even if the grant was small.
So, ultimately, the declaration adds nothing to what we already know. It certainly does not stop Art 10 applying to any grant to a GB-based business with operations in goods in NI.
It certainly does not stop Art 10 applying to UK or GB tax measures or UK or GB Covid grants which extend to any NI business or GB business with NI goods operations.
It certainly does not stop Art 10 applying to aid to services businesses if there is a foreseeable impact on goods businesses in NI (eg road haulage).
It, really, doesn’t (and couldn’t) change anything.
