 this interesting seminar. I'm Ian Forrester. I'm sitting in my house in Brussels, which is close to the Burley Mall, close to where the negotiations are continuing, I suppose. I don't hear any cheering in the street. And I begin with a little anecdote reminding us of bizarrely where we are. In November 2016, I was asked to give a lecture to Glasgow University called the James Wood lecture. And originally it was going to be on a cheerful subject, like Scottish law and European law or something of that sort. And then with the result of the referendum in June of that year, we had to alter the target. And so I talked about Brexit. And I said, well, Brexit is going to present us with enormous tasks in many, many fields. But one area where we can be quite optimistic is that of competition, because we share a common once a common rulebook. I don't think the word existed then, but we share common aspirations. That's to say, the UK has a very well-respected agency, and there should be no difficulty with respect to cooperation stated, that kind of thing. So that's one of the areas we don't really need to worry so much about. Well, four years later, I think that I was not correct. And to eliminate some of these problems, or at least to identify them, and maybe to speculate about the future, we have a good assemblage of real experts. And our first speaker is going to be Annalee Howard QC, who started life like all good young lawyers as a referendaire in Luxembourg and has, like everyone who passes through the court, flourished thereafter. And she is extremely busy in this particular field. She's going to talk now about what you might call the level playing field, regulatory questions and standards, of course, and the notion of cooperation. Annalee, you're welcome. Please unmute yourself. Thank you very much, Ian. I just have to make one correction that I'm not a QC. I just have my plain name. But I think there's some slides that Daniel's going to put up for me. Hopefully the screen sharing will work. And I'm going to talk about the regulatory policy issues and the level playing field. And a lot of the time people use this as sort of competition for shorthand. And as Sir Ian was saying, you might be thinking, well, why does competition law really have this much to do with the level playing field? Because the competition law position seems straightforward. Also, we thought, and I want to try and dive into some of the issues that underpin these concerns between the negotiating parties and then present problems for businesses going forward. And these issues are not new. I mean, they've been around right since the beginning of the referendum. The most recent statement in July from David Frost, you can see that the issues are still even nearly six months later remain the same, where he identified that although there are common interests to have some degree of cooperation in certain regulated sectors, there are other areas where the UK wants to maintain its sovereignty, it wants to maintain its regulatory autonomy so that it can set its own standards going forward as a fully independent country. And if we just take a snapshot of where the EU withdrawal act leaves us, well, you might be thinking, well, what's the problem? Because we have this watershed of the 31st of December 2020, where anything that's enforced and operative up until the end of December this year will be cut and pasted into the skeleton of our own statute book. So we are effectively replicating EU law as we know it and converting it into EU retained law and that covers all regulations, all decisions, all commission regulations, implementing regulations and guidance and court of justice rulings. So that will actually be hardwired into our system and the courts will continue to apply and interpret that law, applying the normal rules of EU construction. So where is the problem of the level playing field? Well, there are two specific carve-outs in relation to existing EU law in that Parliament will obviously retain the right to modify any of those provisions of European law after the event and also in the light of the recent consultation that's being conducted, both the Court of Appeal and the Supreme Court are now going to be free to depart from pre-existing Court of Justice rulings in exceptional circumstances where they see that it is appropriate and they give reasons for the departure. And obviously that's the situation up until the 31st of December, but then going forward, there will be the risk of divergence and that applies both at the EU level and on the domestic front because it's very clear from the watershed that future EU developments are not being retained within the domestic system. So the courts may have regard to future EU commission policies or may have regard to future rulings of the Court of Justice, but they're not bound to apply them, they're just relegated to a question of weight and in so far as the Court sees them to be at all relevant. So there's no binding or comfort that future EU standards will apply and importantly the UK is very keen on preserving its autonomy to develop its own industrial policy going forwards. But as I'm going to show you the carve out is actually the UK companies will of course if they're selling cross-border and they want to have access to European markets will have to comply not just with the UK rules of the brave new world in the UK, but also with the EU rules going forwards, however they might change and they will be subject to enforcement measures and potentially fines if they don't comply on the EU front. So let's have a look at the impact of where this is likely to hit different sectors of UK business and this slide is taken with very kind permission from Evershed Sutherlands who conducted a very useful report called Preparing for Brexit and they've broken down a number of statistics of the extent to which companies in the UK are prepared for Brexit and in which sectors and if you look at the second grid of this you can see that over 60% of UK businesses import and export goods and services to and from the UK from the EU and 53% have their supply chain in another member state and 82% of UK businesses consider that their businesses will be affected by Brexit with a five to one ratio of negative to positive outcomes and if you look at those sectors that are likely to be affected you can see that a lot of them apply in regulated sectors where there's a high degree of standards being issued by European bodies so for example there's construction, there's food, financial services, professional services, transport, energy, manufacturing all of those key sectors of the the standards that apply have been promulgated by European harmonisation or European standards issued by on a collective basis by European decision-making bodies and agencies. So where is the impasse between the UK and the EU? This is the next slide and what I've done in this table as I've just tried to condense the negotiating positions of the UK and the EU taken from their published negotiating briefs earlier in the year and you can immediately see the red lines and the clashes between them because the UK obviously wants to preserve its regulatory autonomy to set its own standards it doesn't want to commit to any dynamic alignment going forwards particularly on the level playing field it's prepared to give some commitments not to weaken labour environment or competition standards but it is not prepared to have any real enforcement mechanism it doesn't want that to be subject to any dispute resolution procedures in the agreement itself simply wants it to go to particularly for public procurement to a WTO type arrangement whereas if we look on the other side of the the EU side of the negotiations well they will only provide zero tariffs on condition that the UK commits to level playing field obligations they want those obligations to be strong legally binding guarantees with specific non-regression that means the UK is not allowed to go backwards and undermine existing standards but more they also want to have dynamic alignment with future EU rules particularly for state aid climate change and food and they want those standards backed up by a treaty enforcement mechanism in the agreement itself so when you're looking at this and think well why why is competition so in a level playing field so important I'm not going to trespass into state aid because George Peretz is going to deal with that but you can easily see that there there could be potential dumping concerns if the UK is able to cut its labour standards or its environmental standards or its competition pricing so that its goods and services are cheaper than goods that are produced in the EU that would be an unfair advantage in terms of trading because they'd be able to undercut the European markets and that's what the EU is concerned about that if the standards of protection which the EU sees as important for the internal market as a whole if those are jettisoned then it could give the the UK a competitive advantage and it doesn't want to have UK businesses out competing EU so let's let's let's just turn to the next slide and look at where regulatory cooperation is important because this is actually where a lot of standards are made it's not made by harmonising legislation it's actually made in committees across specialist regulators so for telecoms you will have bodies like BEREC or you will have the EMA for pharmaceuticals or you will have EASA for aviation who where you have representatives from each member state effectively cooking in the kitchen and devising the standards together so it's a process of cooperation and co-decision between the experts in the field and the UK is withdrawing from a lot of those agencies and bodies there are some that it does want to remain party to but it wants that to be at an arms distance relationship between sovereign equals it wants to have a series of separate mini deals for financial services aviation road haulage where where it sees that in the UK's interests by by converse the EU wants to have one comprehensive deal that deals with all of these sectors together so that the UK cannot pick and choose and cherry pick and and have its cake and eat it as the EU sees it and it's only prepared to give a unilateral equivalent for financial services by member state and those declarations will be dependent on very close alignment in standards there are some areas where the EU is not prepared to let the UK have any access in terms of road haulage electricity and gas or audio visual and so this this does create a problem because the UK if it does want to have market access in these areas it will either have to accept alignment to some degree or it's going to have some strange third party observer status to these bodies where it doesn't have any actual rights or votes or decision making power but simply has to accept the terms that have been reached by its European neighbors so that again runs up against the sovereignty agenda so we wait to see if we are going to get a deal whether there are going to be any continued cooperation in these regulatory sectors that are so important to ensure not just a level playing field across Europe but also market access and some form of of passporting even if it's not as extensive as the passporting that we've enjoyed for the last 40 years at least having the right to access those markets in the EU 27 and the EEA states so what does this mean for companies on my last slide obviously for companies that sell just internally within the UK there shouldn't be too much of a problem because we're either going to have retained EU law or our own version the only problems will arise if there is a risk of goods going to Northern Ireland and then being sold on into the EU where you've got companies that are selling to European markets then companies are going to face a double set of regulatory standards now the UK may have lower standards than the EU in particular areas and in that situation the companies may be able to gold plate and they may be able to comply with the higher EU standards which will encompass the lower UK ones the problem that will arise is where you have different and conflicting standards where it's very difficult to comply with both at the same time and that may mean that companies either have to have different production lines for different markets or they'll be faced with a conflict that is irresolvable unless there is some kind of mutual agreement even on a bilateral basis between individual countries but in terms of the companies involved they're going to have to keep an eye on both sets of standards to make sure that they comply and don't face any enforcement proceedings so I'm going to stop there because I want to make sure that George and Michael can lead on with state aid and procurement thank you many thanks Emily that was an elegant short accessible account of something which is extremely complicated and thank you for that now next we're going to have a colleague from mountain chambers George Peretz QC who has made a particular specialty in the field of state aid and George is now going to review the tangled and potentially controversial field of state aid George good evening everyone um when I accepted the proposal to do this talk I had rather assumed that I would be talking about detailed legal text I'm not I'm going to be reading tea leaves not text because the provisions of the agreement on state aid are currently being negotiated and as everyone knows appear to be at the heart of the obstacles that remain to reaching an agreement in many ways the current situation is somewhat peculiar given the UK's record as a member state of being a vigorous champion of the state aid regime and a country that in general was not very often at the wrong end of commission enforcement in the area of state aid in a article last month for the Neuer Zeitstift für Kartellrecht Ulrich Zoltes the eminent German state aid lawyer compared the United Kingdom's position to a sort of reverse road to Damascus conversion from Paul to Saul and that is a comment that won't fairly make there are I think sort of three sort of strands in the story of of which get us to where we are now there's an UK strand there's an EU strand and I think Northern Ireland strand so I'll quickly say something about each of those and then some comments about what peering through the rather cloudy tea appears to be the sort of provision that's currently being negotiated so first of all the UK strand as I said a couple of minutes ago the UK historically has not any had any particular problem with the state aid regime compared to other EU member states and indeed thinking back to only last year 18 months ago seemed such a epoch the then may government was proposing in the event of an ordeal to carry on with the EU state aid regime more or less unchanged simply substituting the competition markets authority of the commission and making a few other minor changes and also as part of the Northern Ireland backstop agreed by that government to sign up to hold a complicated mechanism under which the whole of the UK would be subject effectively to EU state aid rules things have changed and they've changed not withstanding the fact that the current government in the political declaration that it negotiated and won an election on last year committed itself to in that declaration to maintaining a robust state aid regime. Since the election one saw a sort of steady change in the UK government's position in March the chance for the Dutch of Lancaster, Mr Gove was still promising that there would be a robust state aid regime which would satisfy the EU he said that to the EU further relations committee in March this year and in June Bays was telling us that it was working at pace on a new regime. Well the pace seems to have been maybe in pace but like the red queen lots of pace it seemed to get nowhere because in September the official policy of Bays as announced on the 9th of September was that was not to have any policy for the time being but effectively to have a state aid regime as a subsidy control regime as and when the UK government felt like it but possibly certainly not before some time next year if ever and even in November David Frost the UK's chief negotiator was still talking about an administrative regime whatever that meant if there was to be a regime at all. The UK strand one sees a sort of what might kindly be described as policy development over the period of the last year however there is a devolution issue and one can see that the government retained some concern over that because of its efforts to put into the internal market bill the provision struck up by the House of Lords but still there into the internal market bill a provision that made it clear that the Westminster would have power to impose a substantive control regime over the heads of the Scottish and Welsh Parliament if it so decided. EU strand it's probably worth the EU's concerns about having a very large trading partner that was not bound by any substantive control regime unwell known and exhibit A is really the white paper that the EU published in July this year is not certainly by no means solely aimed at the United Kingdom although perhaps partly so but that expressed in general terms a serious concern about the effect of foreign subsidies in the EU a concern that WTO permitted remedies were not enough because they didn't cover services and didn't help for example where EU based subsidiaries of a foreign company benefited from that foreign company's handouts from its own home state and suggested a whole package of remedies including rather strikingly a remedy that would require the foreign company operating in the EU to disgorge the amount of the subsidies that received from a foreign state and pay it to the EU so somewhat striking and we're going to imagine quite what the daily mail might make of that if it happened to a UK company. Interestingly the white paper made specifically made the point that where there was agreement with a foreign country about subsidy control matters that would be the route that would be pursued first rather than any mechanism in the white paper and that I suspect really was aimed at the UK. Northern Ireland strand article 10 of the Northern Ireland protocol described by the government in its press release today as inadvertently creating a risk of reach back that is to say of affecting subsidies primarily aimed at Great Britain but having an effect in Northern Ireland perhaps because the British company had subsidiaries in Northern Ireland or because one could fairly sensibly see that they would be knock on effects from the subsidy into trade between Northern Ireland in goods and the rest of the EU. That inadvertent risk was one that almost everybody who knows anything about state aid warned the government about immediately the text became public after a rather linked period of silence from the government as to what he thought the provision that it signed actually meant. One discovered really one of the internal market bill was published on the 9th of September. The government more or less accepted what everyone had been telling it that it would have potential reach back effect and that was the whole rationale behind the controversial clauses that gave the government a unilateral power to interpret or modify article 10 notwithstanding its international law of negotiations under the withdrawal agreement under article 10. The press release this is hot news hot off the press. Press release issued this afternoon the government has promised that it would quotes deactivate close quotes the relevant clauses of the internal market bill when deactivated slightly odd verb more appropriate for a bomb than a legal provision. I think they mean amend and the effect of what they say that it will be amended to do subject to agreement being reached in the joint committee that satisfies the government is a provision that merely allows the UK to do things that are consistent with its international obligations and I suspect that that is a reference to the safeguard clause article 16 of the Northern Ireland protocol that might conceivably in some extreme circumstances give the UK some wriggle room in terms of modifying and in terms of not having to comply with the state aid provisions of article 10 in in in fairly extraordinary economic circumstance but then of course we are in a somewhat extraordinary economic circumstances so the point may not be entirely academic. So those are the three strands that have really brought us to where we are. What appears to be being discussed is a a provision under which the UK would agree to have some form of subsidy control regime that may be based on the WTO concept of subsidy which is not vastly different from the EU concept of state aid. Anyone who thinks for example that the WTO's concept of subsidy doesn't apply to tax policy has another thing coming it certainly does but it has the advantage partly forensic advantage from the current government's point if you have not being a concept that comes from EU law. It sounds looking through the crystal ball as if the UK government has accepted there will be some form of regulator although whether what its powers are remain to be seen and one assumes that the regulator will be the competition and markets authority that Oakie is going to be talking about later. According to an article by the almost always reliable Tony Connolly of RTE yesterday the current sticking points on this are first of all the question of whether there should be third party rights in court in cases where the regulator doesn't act. In my view that's perhaps not a hill that the EU should die in die on but in practice the most important right for third parties is the right to be able to get in front of a regulator to get a regulator to look at a complaint and the right to challenge a regulator if it inappropriately fails to take action or clears a subsidy if it shouldn't have been cleared. The right to damage is the separate right which says in EU law is certainly it's a factor but it's only my experience of advising government is that one tends to assume that the obstacles that the lie between a state aid claimant and a damages award are in most cases pretty high and there will be very few cases where damages have actually been awarded. The really valuable right for third party is the right to get in front of a regulator and get it to move. On the other hand the UK government if Tony Connolly is right appears to be dying on the hill of whether there should be an ex-ante requirement to notify a subsidy before it's granted. That again does not seem to me to be a hill which it's sensible to die on. For a start most the EU is bound to accept that there should be some form of block exemption regime parallel to its own which will allow almost vast majority of subsidies to be implemented and awarded without any notification because you just satisfy the block exemption. In cases where the block exemptions don't apply however it seems to me that in those cases almost any well-advised recipient is almost certainly going to say that they're not prepared to accept and go ahead with a project involving a significant amount of subsidy. If they haven't got a sign off from the regulator at least in any case where the regulator has powers to reverse the transaction to order the aid to be repaid and a regime that where the regulator doesn't even have that power where the regulator is no more than a toothless commentator is I think one that would not be acceptable to the EU and this probably I assume is not being discussed. We will actually have to see we hope in a couple of days what the regime looks like but if Tony is right as to what the issues that are remaining are it seems to me that both parties might want to look rather carefully and whether they're really that important and certainly whether they're important to justify not having a free trade agreement with all the benefits that that will bring particularly on the United Kingdom side. So having said all of that I will hand over to I think Michael Bowsher is next. Indeed yes Michael you are very welcome you have the most legal looking set of law reports behind you that's always reassuring and Michael is another of the team very specialized in the in this area and he is going to be talking particularly about his almost personal specialty which is public procurement. Michael are you there I'm here can you hear me lovely great yes yes super nice to see you good to see you thank you very much indeed well George was reading tea leaves but at least he had something concrete he could hold in his hands I'm simply trying to discern a problem that is emerging from the mist but it is a serious level playing field problem at the outset of the negotiations the UK rather resolutely refused to really put very much about public procurement in its mandate at all and notably very very much less in its mandate vis-a-vis the EU than the rather lengthy analysis of the public procurement issues in the mandate vis-a-vis the US which went on about the problem in some detail on the other hand it was clear that from the EU that it all the EU always saw public procurement as a level playing field problem since then it's not this is not a problem that's emerged much in the in the sort of the public side of the discussions and it doesn't seem to have been a stumbling block it may very well with this a stumbling block for the future but at least one way of course it's been capable of being sort of parked is by simply adopting the the UK adopting the position that it will assign up to the GPA and indeed last week the UK did ratify its membership of the government procurement agreement under the WTO on the basis I understand of coverage schedules that will look like its current coverage schedules although they haven't been published yet and as those of you anyone who's been involved in this sort of material will know the battle over coverage schedules is where the where the real guts and glory comes in these discussions but we'll see we'll see where that turns out but why does any of this matter well of course it matters not least because according to the conclusions of the EU council from two weeks ago 25th November public procurement is going to be one of the main tools it the the EU is going to use to reinvigorate the economy it produced council conclusions entitled public investment through public procurement sustainable recovery and reboosting of a resilient EU economy the conclusions are quite lengthy and fairly naked in in two in two respects firstly that the EU intends to use the 14% of GDP that is tied up in investment in public procurement as a tool of industrial policy pretty it's pretty clear and that the EU is going to use whatever flexibilities it had and we'll explore what flexibilities it can to well you I'll use the phrase get around I'm not quite sure what what what what the wise draftsman in the council will use they'd find another another more elegant word I'm sure but to get around the constraints imposed upon them by the GPA because there's a lot of language about exploring the possibilities of of using the using procurement outside the the the tightest regime exploring the possible the benefits of the internal market where no cross border interest is established and so on and so forth so we can expect to see some quite radical developments really and it's and it it may come across it may come upon a bit as a bit of a surprise we it's easy to forget how completely baked into the public procurement regime is the internal market driver you know the reason why the EU felt it necessary to put public procurement at the head of the head of its legislative agenda back in the 1992 program was because of the perception that public procurement was an important way in which member states and regional governments would undermine the internal market and and seek to to unbalance the level playing field and in the happy days when the commission used to be a keen enforcer of public procurement virtue there were loads of cases about all sorts of indirect discrimination features which have really been internalized certainly in the UK in the public procurement community as a means of ensuring the most open possible market in public procurement. George has already referred to the foreign subsidies white paper and on the EU side although that that paper probably wasn't initially directed at the UK it's certainly by a glancing blow has an important effect on it module three of the foreign subsidies paper is explicitly directed at public procurement and at entities that are bidding for public contracts in the EU benefiting from some form of foreign subsidy now I spoke at another seminar last week on on the detail of this I'm not going to go into the detail now but there this is a an area that seems to be fraught with difficulty it's to some extent the re-cooking of various issues which have been knocking around in various draft bits of draft legislation for nearly 10 years and of course at the outset the UK and its gallant band of allies were manning the barricades to repel that sort of legislation to maintain the open market as George says it's interesting that now of course the UK's left and many of many of its the gallant comrades have left the barricades and joined the other side and it may well be that the UK ends up being on the wrong end of this particular new policy if it ever gets into legislation I think it will there are a number of practical reasons why I think the UK was always right to to vote it down to get rid of it not just on trade grounds but also on efficiency grounds but I'm not going to go into those now suffice it to say that this whole issue is difficult and problematic the question also as to what what sort of flexibilities might be found to use procurement in a more activist way is intriguing plainly from the council conclusions I've already mentioned there's an intent to look at how procurement of light regime services might be used in a way that is more instrumental through for industrial policy purposes and it's quite interesting to map while Annalie had the list of affected industries I up I had I pulled up the schedule I'm sure all of you keep to hand I pulled up schedule three of the public contracts regulations 2015 to compare the list of categories of service that fall outside the GPA and that therefore would be susceptible of a more directed approach by EU purchases if they wanted to try and focus a more local based procurement policy there's an interesting there are a number of areas where there's an interesting map across and you can see how particularly the UK with its large service economy might be very hard hit if contracts in this area were to be dealt with on a more local basis of course the EU is far from being the only the only part of this the equation dealing in this sort of more instrumental use of public procurement for industrial policy purposes we've had since the 2012 since 2012 the public services social value act which I think is some of the more traditional procurement minds in Brussels found rather horrifying when it first came out because it looked like an attempt to roll back a lot of the indirect discrimination case law it's all about imposing on contracting authorities the at least the obligation to consider how to bring social value benefits to the local community and we had this in september this year the new procurement policy note from cabinet office which strengthens that policy in central government and requires central government the in scope bodies in central government to to take account of social value in designing public procurements so this is no longer you're obliged to consider you're obliged obliged to do it and when you look at the table on the back of the sorts of things which authorities are required to do again these are the sorts of things that typically I might put into a problem that I would set to my students at the end of the year if I wanted to look for a nice little problem on indirect discrimination so at least saves me writing and looking for examples in my exam for my summer exam next year the agenda for indirect discrimination is pretty nakedly being set all in in terms of future industrial policy this of course is all going to be framed in the first place under a no doubt for the first the way out of the UK legislation is set up we are there will no doubt be an overhaul of the of the of the legislation on a number of grounds but although the the government discussion paper whether green or white seems to be under debate is is already well delayed but as things currently stand of course any at least with for a contract falling within the GPA and that would involve any any contract falling within the coverage schedules the relevant coverage schedules as between the EU and the UK and the GPA itself as reflected in the regulations regulation 25 impose an obligation that a GPA provider be treated no less favorably than a non than a domestic provider or an EU provider if you're if it's UK into EU and the other way around if we're talking EU into UK and at least until the end of next year GPA providers so all EU providers will have the right to bring an action in the UK courts or in the English courts under the English regulations I haven't I apologize and I have not checked what the position is in the amendment provision for the Scottish regulations it's probably not the same but in the English regulation English and Northern Irish regulations at least the rights of an EU based challenger which has no UK based would seem to expire at the moment at the end of next year presumably they're going to be put in replaced by some sort of more coherent GPA remedy so there are a number of odd sort of procedural problems as to how the existing domestic remedies are going to be used I suspect though that we're going to if we're going to see an increasing amount of sort of subtle indirect discrimination we may end up wanting to see a more active process in both directions of monitoring how people are excluded and in doing so we'll end up also having to look at what the law really means and one of the oddities which I think we're going to have to explore at some point is how what the test for discrimination now is and this isn't just a question in the UK of what EU retained law means because under regulation 18 of the public contracts regulations and its analogues in other provisions we have an express provision that bidders shall be treated in a manner consistent with equal treatment and transparency and not subject to discrimination now I think up until now we've probably treated not not subject to discrimination as a sort of shorthand rather superfluous shorthand for not in infringement of EU law well that my falls away so does that does the reference to discrimination or non-discrimination mean that we're referring to GPA law well there almost is no GPA law because there've been hardly ever any WTO cases about infringement of GPA on these grounds maybe half a dozen if if that so we're going to have to try and examine what what it means what what the obligation not to discriminate means and how far that goes into indirect discrimination practices in public procurement and what sort of protections as a matter of substance the law actually provides for so anyway I've gone on too long let me let me pass on all to say that the battle lines have barely even been drawn but there is coming out of the woods an army of possible problems those of us who are practicing lawyers will smile and light a candle for the prevalence of anticipated severe problems and those of us who are citizens may lament them now you've heard three extraordinarily good and extraordinarily accessible presentations on three different aspects of the competition problem and now we have okay or do do from Cambridge who is going to talk about the role of the CMA in pursuing competition until you may after Brexit welcome thank you I'm going to speak about the competition and markets authority and hope to tie together the earlier three presentations so the benefit of the withdrawal agreement is that after Brexit but during transition the competition law landscape has remained as it always was and so what we have is the competition and markets authority as the competition body within the united kingdom applying continuing to apply two provisions of the treaty article one and one in one and one or two domestic competition law the chapter one and chapter two provisions contained within the competition act of 1998 domestic merger control regime to the extent it applies under the enterprise act but also the market investigations regimes conducting market studies carrying out criminal cartel investigations hearing regulatory appeals performing its consumer protection function and carrying out competition advocacy now in order to carry out this not insubstantial list of functions in 2015 the CMA was operating on a budget of 65 million pounds annually at the end of transition the CMA will cease to be applying EU competition provisions it will continue to apply the domestic competition provisions there will be a range of amendments to those provisions merely to give flexibility and freedom in how they are interpreted and enforced given that the need to ensure compatibility with EU law no longer exists but in addition to its existing functions it is also going to get or likely to get new functions it will be the home for the new office of the internal market it will be the home for the new digital markets unit it will as George mentioned earlier likely be the home for any state age regulator and even if it is not the home of a substantive procurement enforcement agency it will certainly take procurement under its wing when it does its competition advocacy work and so what we have is a competition authority with a range of existing powers which is going to gain a whole raft of new powers in order to conduct these new functions it has been allocated just at the end of November a new operating budget which is now just shy of 110 million pounds so that that substantial increase in budget gives you an indication of how much additional work it is intended to be conducting it's not only that the work that the CMA is doing is increasing its current work will also become more complex and the really two reasons well known for this changing complexity the first is of course that the larger more complex cases often involve firms operating in multiple jurisdictions so although they have an impact within the UK they also have an EU impact and so they are currently being investigated by the European Commission at the end of transition the European Commission will stop looking at the impact conduct has on the UK and it will be for the CMA to look at that impact using its domestic powers also well known is merger jurisdiction the existing regime grants exclusive competence to the European Commission in relation to a number of transactions but fall within each jurisdiction but this will cease to be so at the end of transition the way that the CMA takes on these new powers is set out in guidance it recently published on its functions at the end of transition but in addition to these two changes that it has an existing workload which is becoming more complex and it is also being given more tasks the CMA of course wishes to set its own agenda that of course is its whole or the whole point of Brexit in its annual plan which it published last week it thus sets out its agenda that it wishes to continue its leading work in protecting consumer work consumers and driving a recovery but it also wishes to take its place in the global and or as a global competition and consumer authority it has an ambitious agenda in digital markets and it has an ambitious ambitious agenda in the transition to a global economy so it has an existing workload which is going to become more complex it has a new sphere of competence and it also wishes to set its own objectives at the moment it's clear that the CMA is already busy even before it takes on its workload it's already it's got 10 enforcement cases running it's got 10 consumer cases running it's got 22 emerging cases running it's got a market investigation and a market study under review it's got a regulator appeal underway and 14 of its projects are currently subject to litigation and so it is certainly not going to become less busy and at the same time whilst it wishes to set its own agenda it's clear that it cannot set its own agenda on its own in September it signed cooperation agreements with Australia, New Zealand Canada and the Department of Justice and in its annual plan it clearly sets out the need to cooperate with international partners so it emphasises that whilst it's leaving the ECN it intends to play a full role within the OECD, the ICN and existing UN trade forum with competition remit so it does seek to project it's power but in relation to the ability to set an agenda it's a way that you need partners to be able to do that it has a the final item on its agenda is its need for legislative reform at the start of the year it said that it was already doing all it can with its existing powers it is called for new legislation it wants that legislation to enable it to take stronger action more swiftly and more flexibly which as I would summarise it seemed to me without interference of courts or tribunals and so we have perhaps one of the most trusted authorities gaining a whole range of new powers at a time when the economic landscape is well I suppose to be is about to be remapped Ian back to you thank you very much I very much like the last line there trusted authority getting new powers when the economic landscape is going to be remapped very very interesting now I've got five questions and probably more will come the first couple and I'm going to join them are for George two questions first what sorts of funding by the state are being considered do we know by GMG which would be forbidden under EU state aid rules and related to question which is quite punctual are the regulations on state aid going to be adopted as so to speak threatened with effect from January 1 George well I think the answer to Alex's question is a very shortly good question I'm not aware of any anything that can be described as analysis whether rigorous or otherwise precisely what it is that the current government would like to subsidise but feels that either EU state aid law or any robust subsidy regime agreed with the EU would stop it subsidising that it actually wants to subsidise I think that this is much more to say about that that just isn't anything very good here people have talked about subsidising in response to the COVID crisis but of course the EU commission has allowed member states to subsidise an awful lot in relation to COVID and it's entirely clear that the UK would want to do anything the commission wouldn't allow as own a UK regulator on Graham's question about the fate of the the revocation regulations I mean those regulations are needed under the withdrawal act because absent any action at all by the UK government the position on the 1st of January and further on would be that article 183 of the treaty of the functioning on the European Union which is currently direct which is directly effective EU law would remain in force in the UK because it's it would be retained EU law that result is patently absurd because article 183 makes absolutely no sense at all outside the outside the EU framework it's an obligation to notify the commission an obligation that the UK would simply be unable to fulfil living beside article 10 once it's no longer a member state so clearly something has to be done the regulations just get rid of it there's a interesting question as to whether they're within the powers of the withdrawal act one of the as a as a necessary modification one of the commitments made by the government at the time was that major changes in policy would not be done by the strategy to instrument under the withdrawal act would be done by primary legislation well this however one looks at it as a major change in policy and yet it's being done so I think this question I mean there is an interesting if there is a deal and it includes a subsidy regime there's a real question about whether any different UK subsidy regime could possibly well I mean I think it's no real question really it could not be ready by the 31st of December it will take at least six months to a year to develop a new regime in the interim there has to be something the EU will insist on it there will be no alternative carry on with the current EU state aid regime in some form and I think they'll probably dust off the old May government statutory instrument and pretend it's theirs and use it to bug the gap I don't really see much alternative and that leads into an interesting question from Eric White formerly of the legal service of the commission and a veteran of battles in Geneva and he observes more or less that agreeing the applicable rules in this field is one thing but then by what procedural mechanism shall disagreements about how the relevant rule is to be applied in a particular case in other words we have we do have agreement on the substantive rule but then we have disagreement as to whether the rule is violated who is the right person to talk about that I can talk about it if you like in yes please so I mean again if you go back to that table that I presented of the negotiating positions you can see the UK is pushing very much for a WTO style arbitral system for dispute resolution whereas the EU wants a very specific tribunal within the terms of the agreement itself and the failings of the WTA system are well documented it's a very conciliatory political approach with a laborious cooperation regime that takes time you then have a referral to the arbitral tribunal and for many years the WTO process has been held up because the US have not been willing to participate now that may change with the the new president but even when you get a ruling from the arbitral tribunal the sanctions process is rather random in that the the sanctions can be retaliatory and don't necessarily match the breach they can be imposed wherever across different sectors of the of the industry and not necessarily proportionate or or linked to the underlying breach and it's those frustrations I think which have led the EU to for their recent demand which the UK are crying as foul play to seek to impose what are called lightning strikes so that if there is a breach by the UK or if the UK fails to adapt dynamically to EU standards going forward the EU can retaliate quickly with lightning sanctions to try and bring the UK to heel and the and the UK saying well this is very much a last minute intervention by the EU it's probably been prompted by levels of distrust because of the internal market bill lack of confidence in the UK's ability to comply with international law but it's not clear if those lightning strikes would be reciprocal giving the UK right to retaliate if there was a breach by a government by another EU state I think the the critical point as well is obviously those interstates disputes which are going to be fought with difficulty obviously individual disputes are going to be difficult as well because there will be no direct effect no individual rights and the withdrawal act itself is very clear that there is no longer any right of Frankovitch damages against the UK government likewise it's going to be very difficult for individual companies and and individual persons to bring actions against states which are now governed by an interstate agreement rather than one that has direct effect in the same way as the EU treaty okay thank you I'm conscious that time's passing I've got a quickie well it's not really a quickie it could be a quickie for Michael and it's from James Weber and his question kind of chimes with my own feeling when I was on the bench that this was a fantastic talking public procurement the the detailed nature of the rules was at times so tricky and intricate it was more like a tax statute and principles you had to look for the principles and the question was whether well so question to Michael do you see if we're leaving the the European Union's regime on procurement is there a prospect of having a more principle-based set of rules Michael I would hope so is the short answer and and certainly that that is seems to be the idea behind or one of the ideas behind the current reform approach I think plainly I mean the problem of course is because we are because we are now signed up to the GPA coming into force on the 1st of January we're limited in how far we can depart we can't we can't go for a different model the GPA as you know is a model that reflects the EU model so we're stuck with the same overarching model but I'm sure we could redraft the legislation with about a quarter as many words and get away and get away with a lot less pointless technicality and we could probably focus on some really key areas bringing out and this would help in what I was talking about you know what does discrimination mean what are the boundaries of a legitimate illegitimate discrimination after the whole point of this is to discriminate to some extent and also to go directly to the question as to how you how you undertake a correct correct decisions in the in the process of awarding 10 awarding contracts and selecting tenders at the moment there's tons and tons of verbiage about procedures but not a lot about what you do and this of course is is a real concern in the in so far as this sort of the the the compliance mentality which has grown up has created systems which may be good at demonstrating that you've done that you've not done something wrong but not actually any good at preventing a race to the bottom in quality for example. Thank you two last very quick questions one is for George Peretz I think there's been a recent High Court case on Durham Council's Waste Services and it was said there by our questioner that state aid cases are going to be null or irrelevant after January the 1st is that correct George? I'm entirely happy to answer it although it was Michael Balsher was was in the case it might not have been oh dear didn't win but yeah yeah that's absolutely right on the basis of the current statutory instrument as proposed by the government if and when there is a free trade agreement containing a as it will some commitments on a subsidy regime it will no longer be true but as of today it's it's it's true subject to that condition okay Michael do you want to say anything very quick on that? Not at all I'm very happy to defer to George on that and on that matter okay and the last one I'm not sure who this is for does anyone know that the question is does the Northern Ireland protocol only apply to trading goods? Yeah because I the answer is yes if you include electricity as well they're indeed but on from the state aid perspective one has you should have to bear in mind that an aid to a services provider let's say for the sake of argument to rolled road haulage supplier could have an effect on trade on goods because if it can supply at services very cheaply that might help with Northern Ireland good manufacturers and effect trade in goods so yes that's right but it doesn't mean that all aids to services are automatically outside the scope of article 10. All right I have the impression that we could be sitting here until the Brexit negotiations are concluded or until they break up tearfully but our audience which is nearly 200 people has been promised 60 minutes and some of them may be getting hungry or bored or threatening to leave or asking for their money back so with real regret because I have been taking furious notes and learning myself since when you're on the bench you're you're accosted and fed like a goose well it's an unfortunate bird but you are well fed with the relevant legislation and applicable principles but no longer is that the case for me I'm afraid so I've learned an enormous amount and I think a lot of our watchers will also have learned a lot the slides will be available and I just like to thank Annelay George Michael and Oki once more this is really good and thanks to Cambridge for having set it up so ladies and gentlemen bon appetit thank you to those who said nice things about us no one has so far said anything nasty but they're free to do so and I hope that Cambridge can organize such an interesting evening event once we know what the people in the Burley Mall about 300 meters from here have agreed or have not agreed so thank you for coming thank you for speaking to the four panelists and see you maybe soon good night thank you thank you