On subsidy control, it’s critical to remember that the EU has accepted that the UK can apply its own subsidy regime not “EU State aid rules”. Since the Tories promised such a regime during the GE, that should be acceptable.
This is a soluble problem. A clause or side letter could record that the EU has no objection to the UK granting aid to compensate businesses for Covid losses or to restart the economy.
The problem is a fake one anyway: neither State aid rules nor a domestic subsidy control regime will prevent such subsidies (subject to checks on necessity and effectiveness).
Reminder: the UK is not now being asked to follow EU state aid rules. And a well-designed UK subsidy regime will allow subsidies for big projects of public importance. And if the EU is doing the same no arbitration in the world is going to find against the UK for doing it.
It is, also, a largely fake problem. And to the extent that it’s real, soluble by an EU statement that it won’t object to the UK subsidising things it itself is subsidising.
Finally, this. Like @DavidHenigUK, I thought that that was, pretty much, the EU offer. Smoke and mirrors, of course: but as David says, this may be a straw in the wind (this will be what is agreed and Forsyth’s article will be waved as proof that the UK got what it wanted).
My conclusion from Forsyth’s article is that if these are really the problems here, it is hard to see that they can’t be solved, with goodwill (which may be the problem, of course).
Footnote: I know about fishing. I have no expertise there. But like others, I can’t see that agreement won’t happen just because of fish, when a relatively small amount of €€ and ££ could buy off unhappiness with a deal.
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Very large numbers of international treaties require the UK to make, or not make, law. The UN Treaty requires us to impose sanctions. The Antarctic Treaty requires us to prohibit unlicensed operators organising tours to Antarctica. GATT restricts our ability to set tariffs.
@SBarrettBar appears to think that such provisions do not infringe his definition of “sovereignty”, but he fails to explain why not.
The first concealed rational answer is that, in a negotiation, you may want to try to force your counterparty to offer better terms by saying that you will walk if you don’t get them.
And you may say that even if, faced with the choice between currently offered terms and walking away, you’d be mad to walk away.
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?).
The devil is in the detail. But ultimately the UK choice is whether (a) to accept a deal the benefits of which cld be withdrawn if the EU (after arbitration) later decides that divergence has in fact become too great for those benefits to be in its interests any more; or
(b) to refuse a deal, and those benefits, now (and before we have decided what if any divergence we actually want.
It’s a bit like someone who balks at renting a nice house they rather like because there’s a term in the lease that gives the landlord a right reasonably to refuse them having pets, even if they have no pets and aren’t sure whether they ever will.
Note, however, that as explained here, politico.eu/article/uk-scr…, it was not at all clear in WTO law that the UK could take advantage of the WTO ruling authorising the EU to impose those tariffs.
Nor is it clear that there is domestic law power to impose such tariffs: legislation would have been got through by the end of the year.
That is because Article 12 of the Protocol says this.
The 1st sentence of para 4 tells you, for present purposes, that the Commission has all the powers over the UK in relation to Article 10 as it has over Member States under Articles 107-108 TFEU. Powers to find that aid has been granted under Article 10 and to order repayment.