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Commission has published a long and ill conceived note re art 10 NIP. Claiming wide ‘reach back’ jurisdiction over aid in GB and that the unilateral declaration given by the EU on interpretation of Art 10 in December is effectively meaningless. https://ec.europa.eu/info/sites/info/files/notice-stakeholders-brexit-state-aid_en.pdf
I’m genuinely surprised they chose to do this. It’s a big mistake. First, the NIP is already under pressure in NI and hasn’t bedded in yet. Seeking an extreme and expansionist view of its provisions is irresponsible and needlessly destabilising.
Second, insisting that the declaration the EU made only a month ago is meaningless and changed nothing is a disreputable argument. The diplomatic and legal equivalent of having your fingers crossed behind your back when you made a deal. https://ec.europa.eu/info/sites/info/files/brexit_files/info_site/5._art_10_declaration_to_publish.pdf
Third, the Commission may be thinking this doesn’t matter as any dispute lands in the ECJ ie it inevitably wins. But will it? A tribunal under WA or a UK Court may well decide the boundaries of Art 10 are now clear enough under the declaration. No need for ECJ reference.
Fourth, the Commission argues that aid to any company, anywhere that merely “operates in, or trades with, Northern Ireland” is caught by Art 10. This cannot be right. Recipients in GB are outside SM and on other side of a customs border.
It’s the equivalent of insisting Canada notify the Commission for approval before Ottawa pays aid to Bombardier in Ottawa. On the basis it has a facility in NI. It is overreaching and obviously unnecessary to protect SM.
Fifth, this interpretation is so extreme that the TCA subsidy provisions would be redundant. Since any aid in GB to any company that “trades with” NI - would be subject to full Commission jurisdiction anyway. So either EU was disingenuous about the LPF - or this new note is wrong
Sixth, UK cannot accept ‘reach back’ jurisdiction. Ie aid in GB notified to the EU via art 10 NIP, without very large and very obvious nexus to IE/NI goods trade. The Commission has provoked a conflict before facts have arisen to suggest it’s worthwhile to protect SM.
Seventh, HMG can make the Art 10 NIP Unpopular in NI. Eg by notifying aid projects the Commission cannot approve then blaming the Commission for ‘holding NI back’.
UK can also illustrate that these projects in NI are being blocked by an entirely foreign power, over which the people of NI have no representation and no influence. Not comfortable. And not sustainable. The opposite of EU interests vis NIP.
While the Commission’s view on these provisions is not legally determinative - it is effectively encouraging firms to complain on this expansive basis.
All in all - it’s a shambles. Hopefully a savvier and more realistic approach will emerge when the first complaint or challenge to failure to notify is made. But they have not made things easy either for undertakings or themselves.
