“Existing domestic law has effect on and after the relevant day with such modifications as are required for the purposes of implementing in that law the [TCA] … so far as the agreement is not otherwise so implemented and so far as such implementation is necessary for the purposes of complying with the international obligations of the United Kingdom under the agreement.”
“(i) Prima facie the TCA does not have direct effect according to its own terms but this is without prejudice to how the UK decides to implement the TCA as a matter of domestic law. (ii) Parliament has implemented the TCA into domestic law via the EUFRA 2020, in particular section 29. Section 29 does not lay down a principle of interpretation but is more fundamental and amounts to “a blanket, generic, mechanism to achieve full implementation, without the need for any further Parliamentary or other Executive intervention”: see [227]. The section transposes the TCA into domestic law, expressly and mechanistically changing it in the process. Following section 29 domestic law on an issue means what the TCA says: see [228]. (iii) This is subject to two statutory clarifications. The first of these is that it applies only so far as required, i.e. it does not modify domestic law that is otherwise already consistent with the TCA. The second is not material for present purposes. (iv) There will be many circumstances where a court must determine the meaning of domestic law by reference to the TCA. This is recognised in section 30 of the EUFRA 2020. That provision cross-refers to the TCA, which itself incorporates the 1969 Vienna Convention on the Law of Treaties: see section 30 and Article 4 of the TCA on ‘public international law’.”
“(a) subsidies pursue a specific public policy objective to remedy an identified market failure or to address an equity rationale such as social difficulties or distributional concerns ("the objective"); (b) subsidies are proportionate and limited to what is necessary to achieve the objective; (c) subsidies are designed to bring about a change of economic behaviour of the beneficiary that is conducive to achieving the objective and that would not be achieved in the absence of subsidies being provided (d) subsidies should not normally compensate for the costs the beneficiary would have funded in the absence of any subsidy; (e) subsidies are an appropriate policy instrument to achieve a public policy objective and that objective cannot be achieved through other less distortive means; (f) subsidies' positive contributions to achieving the objective outweigh any negative effects, in particular the negative effects on trade or investment between the Parties.”
“3. Subsidies for restructuring an ailing or insolvent economic actor without the economic actor having prepared a credible restructuring plan shall be prohibited. The restructuring plan shall be based on realistic assumptions with a view to ensuring the return to long-term viability of the ailing or insolvent economic actor within a reasonable time period. During the preparation of the restructuring plan, the economic actor may receive temporary liquidity support in the form of loans or loan guarantees. Except for small and medium-sized enterprises, an economic actor or its owners, creditors or new investors shall contribute significant funds or assets to the cost of restructuring. For the purposes of this paragraph, an ailing or insolvent economic actor is one that would almost certainly go out of business in the short to medium term without the subsidy. 4. Other than in exceptional circumstances, subsidies for the rescue and restructuring of insolvent or ailing economic actors should only be allowed if they contribute to an objective of public interest by avoiding social hardship or preventing a severe market failure, in particular with regard to job losses or disruption of an important service that is difficult to replicate. Except in the case of unforeseeable circumstances not caused by the beneficiary, they should not be granted more than once in any five year period.”
“It is for each Party to determine how its obligations under paragraphs 1 and 2 are implemented in the design of its subsidy control system in its own domestic law, provided that each Party shall ensure that the obligations under paragraphs 1 and 2 are implemented in its law in such a manner that the legality of an individual subsidy will be determined by the principles.”
“1. Each Party shall ensure, in accordance with its general and constitutional laws and procedures, that its courts or tribunals are competent to: (a) review subsidy decisions taken by a granting authority or, where relevant, the independent authority or body for compliance with that Party's law implementing Article 366; (b) review any other relevant decisions of the independent authority or body and any relevant failure to act; (c) impose remedies that are effective in relation to point (a) or (b), including the suspension, prohibition or requirement of action by the granting authority, the award of damages, and the recovery of a subsidy from its beneficiary, if and to the extent that those remedies are available under the respective laws on the date of entry into force of this Agreement; (d) hear claims from interested parties in respect of subsidies that are subject to this Chapter where an interested party has standing to bring a claim in respect of a subsidy under that Party's law.”
“…nothing in this Article requires either party to create rights of action, remedies, procedures or widen the scope or grounds of review of decisions of their respective public authorities, beyond those existing under its law on the date of entry into force of this Agreement.”
“2. Each Party shall ensure that, provided that the interested party as defined in Article 369 has challenged a decision to grant a subsidy before a court or a tribunal within the specified time period, as defined in paragraph 3 of this Article, recovery may be ordered if a court or tribunal of a Party makes a finding of a material error of law, in that: (a) a measure constituting a subsidy was not treated by the grantor as a subsidy; (b) the grantor of a subsidy has failed to apply the principles set out in Article 366, as implemented in that Party's law, or applied them in a manner which falls below the standard of review applicable in that Party's law; or (c) the grantor of a subsidy has, by deciding to grant that subsidy, acted outside the scope of its powers or misused those powers in relation to the principles set out in Article 366, as implemented in that Party's law.”
“(i) it shall commence on the date on which information specified in Article 369(1) and (2) was made available on the official website or public database; (ii) it shall terminate one month later, unless, prior to that date, the interested party has requested information under the process specified in Article 369(5); (iii) once the interested party has received the information identified in point (b) of Article 369(5) sufficient for the purposes identified in Article 369(5), there shall be a further one month period at the end of which the specified time period shall terminate; (iv) the date of receipt of the information in point (iii) will be the date on which the granting authority certifies that it has provided the information identified in point (b) of Article 369(5) sufficient for those purposes, irrespective of further or clarificatory correspondence after that date; (v) the time periods identified in points (i), (ii) and (iii) may be increased by legislation.”
“Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant– (a) leave for the making of the application; or (b) any relief sought on the application, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”
“The claim form must be filed– (a) promptly; and (b) in any event not later than 3 months after the grounds to make the claim first arose.”
“The importance of compliance with time limits in the context of judicial review proceedings is emphasised in the Administrative Court’s Judicial Review Guide (2022), at section 6.4. In particular, at para. 6.4.2.2, it is said that the time limit begins to run from the date the decision to be challenged was made and not the date when the claimant was informed about it, citing R v Department of Transport, ex parte Presvac Engineering Ltd (1992) 4 Admin LR 121. It is emphasised, at para. 6.4.1, that, even if the claim has been commenced within 3 months from the date of the conduct challenged, it may be out of time if the claimant did not start the claim promptly.”
“(i) failed to have sufficient regard to the extent to which each of the Appellants, knowing of their rights under the TCA, made detailed requests for information about the subsidy but to which no substantive response was received to these until23 November 2022 ; (ii) failed to have sufficient regard to the fact that the application to the Companies Court was adjourned on11 November 2022 to enable disclosure to be obtained by the Appellants and judicial review proceedings to be brought if so advised and that even Counsel for the JEAs then contemplated a claim being commenced “within the next week or ten days”; (iii) failed to have any regard to the fact that Swift J found that the Appellants had acted properly in awaiting the disclosure finally given on 23 and25 November 2022 to be able to plead their claims; (iv) correctly concluded that the Appellants did not have “the details of the matters…to support any grounds for judicial review” but erroneously concluded that the essence of the case on public law and subsidy control grounds was sufficiently known by early November 2022; (v) erroneously concluded that it would have been open to the Appellants to plead a sub-standard set of grounds, supported by a statement of truth, and then to seek to amend those grounds in due course when permission to amend might not have subsequently been given, and permission for judicial review might have been determined on those sub-standard grounds; (vi) erroneously distinguished this case from R (Young) v Oxford City Council[2002] EWCA Civ 990 and inappropriately relied on R v Monopolies and Mergers Commission ex p Argyll Group plc[1986] 1 WLR 763 , CA; (vii) erroneously took the view that third parties were entitled and required to rely upon the validity of the decisions of the Defendant unless and until they were set aside when the relevant third parties were those involved in a transaction the validity of which they knew was impugned and was likely to be the subject of challenge; (viii) failed to consider what prejudice the alleged delay in issuing proceedings between 7 or8 November 2022 and 28-29 November 2022 caused any third parties and how likely such prejudice was given Swift J’s unappealed judgment that it was not possible to determine the claims before the end of the Michaelmas 2022 term and given the substantial work that then had to be done to prepare the case for trial in late February 2023; (ix) erred in law and/or fact by declining to treat the question of detriment to third parties as potentially relevant to relief, rather than permission, but then declining to hear submissions on relief in the proceedings. It wrongly found that there was unspecified prejudice to the JEAs and Octopus without giving the Appellants the opportunity to address the Court on the terms of any relief which might minimise any such prejudice.”
“However intense or exacting the standard of review in cases where Convention rights are engaged, it stops short of transferring the effective decision-making power to the courts.”
“Accordingly, even where, as here, the relevant decision maker has carried out the balancing exercise, and has not made any errors of primary fact or principle and has not reached an irrational conclusion, so that the only issue is the proportionality of the decision, the court cannot simply frank the decision, but it must give the decision appropriate weight, and that weight may be decisive. The weight to be given to the decision must depend on the type of decision involved, and the reasons for it. There is a spectrum of types of decision, ranging from those based on factors on which judges have the evidence, the experience, the knowledge, and the institutional legitimacy to be able to form their own view with confidence, to those based on factors in respect of which judges cannot claim any such competence, and where only exceptional circumstances would justify judicial interference, in the absence of errors of fact, misunderstandings, failure to take into account relevant material, taking into account irrelevant material or irrationality.”
“19 The only part of that passage which perhaps needs clarification is the reference to the court being “the primary decision-maker”
“Following section 29 domestic law on an issue means what the TCA says. It provides that domestic law (as defined) “has effect … with such modifications as are required for the purposes of implementing in that law the Trade and Cooperation Agreement”
“79. In our judgment section 29 does not have the effect Green LJ suggests in relation to provisions in the Trade and Co-operation Agreement which are expressed in such general and aspirational terms as article AIRTRN.22. The UK and EU expressly agreed in article COMPROV.16 that nothing in the Trade and Co-operation Agreement permits that agreement to be directly invoked in the domestic legal system of the UK and that it does not confer rights on individuals. Given that the aim of Brexit was to remove the influence of EU law from our domestic law, it would be entirely inconsistent with that aim and with the wording of article COMPROV.16 to interpret section 29 as having such an intrusive and automatic effect in our law. 80. There may be a future case arising from facts occurring post-Brexit where a party wishes to put forward an argument that the effect of section 29 is to modify the wording of some existing domestic law on which that party relies. If such a submission is made, that court or tribunal should consider submissions as to the meaning and effect of section 29 afresh. They should not have regard to what has been said by the Court of Appeal in this case.”
“A public authority— (a) must consider the subsidy control principles before deciding to give a subsidy, and (b) must not give the subsidy unless it is of the view that the subsidy is consistent with those principles.”
“I quite agree that subsequent legislation, if it proceed upon an erroneous construction of previous legislation, cannot alter that previous legislation; but if there be any ambiguity in the earlier legislation then the subsequent legislation may fix the proper interpretation which is to be put upon the earlier.”
“The respondents say that the two stages of the commission's inquiry involved wholly different tasks. Once the commission reached the stage of deciding on public interest and remedies it was exercising a broad judgment whose outcome could be overturned only on the ground of irrationality. The question of jurisdiction, by contrast, is a hard-edged question. There is no room for legitimate disagreement. Either the commission had jurisdiction or it had not. The fact that it is quite hard to discover the meaning of section 64(3) makes no difference. It does have a correct meaning, and one meaning alone; and once this is ascertained a correct application of it to the facts of the case will always yield the same answer. If the commission has reached a different answer it is wrong, and the court can and must intervene.”
“I agree with this argument in part, but only in part. Once the criterion for a judgment has been properly understood, the fact that it was formerly part of a range of possible criteria from which it was difficult to choose and on which opinions might legitimately differ becomes a matter of history. The judgment now proceeds unequivocally on the basis of the criterion as ascertained. So far, no room for controversy. But this clear-cut approach cannot be applied to every case, for the criterion so established may itself be so imprecise that different decision-makers, each acting rationally, might reach differing conclusions when applying it to the facts of a given case. In such a case the court is entitled to substitute its own opinion for that of the person to whom the decision has been entrusted only if the decision is so aberrant that it cannot be classed as rational…”
“In any event, we are not persuaded that the process conducted by the JEAs in conjunction with Lazard was not one which could be relied upon so as to treat the only bid which had emerged from the process as a fair reflection of the value which the market placed on Bulb’s business in the prevailing circumstances.”
“It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.”
“i. The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed. ii. The trial is not a dress rehearsal. It is the first and last night of the show. iii. Duplication of the trial judge’s role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case. iv. In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping. v. The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence). vi. Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done.”
“(i) The selection was not made or influenced by BEIS or the SoS, but by the JEAs and Lazard, although BEIS supported the JEAs’ decision to approach “key potential bidders” as determined by the JEAs and their advisors. (ii) Those selected were seen by Lazard and the JEAs as “key strategic participants” in the energy market, being “medium and large incumbents” (or as it was put in a later “M&A Process Update” entry, to “medium and large incumbents (Octopus, [Daisy], ScottishPower and Shell)”). (iii) No approach was made to a non-bidder who had raised objections to the proposed acquisition which Lazard did not consider could be addressed by HMG support. E.ON was not re-approached for this reason. If it matters, that was an assessment reasonably open to Lazard in the circumstances set out at [39] above. (iv) The selection criteria were to a significant extent judgmental, but the choice was not made on an irrational basis, but by reference to the two criteria in (ii) and (iii) above. (v) The scope of the re-engagement exercise was influenced by commercial concerns that too wide a process risked alerting the market to the limited response to the Phase-1 process, which was a view it was reasonably open to Lazard to hold from a commercial perspective.”
“Define in detail and propose transaction structures/de-risking mechanisms that can be explored with remaining bidders. Assuming further clarity is provided on the issues and areas of uncertainty flagged by bidders, re-test interest with parties that withdrew from Phase 1 citing these uncertainties in an effort to maximise competitive tension.”
“(i) The SCA concludes that the severe economic disruption and volatility caused by the “Russian invasion of Ukraine in February 2022” constitutes a national or global economic emergency, and that the subsidies provided to HiveCo constitute a “targeted, proportionate and effective” response in order to remedy that emergency. (ii) We are satisfied that this was an assessment reasonably open to the SoS. While the Claimants point to the fact that Bulb had entered into SAR before the Russian invasion, it is clear the economic consequences of the invasion had a very significant impact on the support required for Bulb to exit the SAR, and that the support provided was a response to that state of affairs. (iii) Finally, E.ON suggested that Article 364(3) could not apply to a subsidy given only to one market operator or undertaking. However, there is nothing in the language of Article 364(3) which would support such a limitation, nor were we referred to any material which was said to fall within Article 32 of the VCLT and which was said to support that interpretation.”
“The national/global economic disturbance caused by the Russia/Ukraine situation has transformed the extent of support required to enable the transaction to complete and for Bulb’s customers eventually to be taken on by a new supplier and hence end the SAR. As stated above, without intervention by HMG, Bulb customers may be left without energy supply (due to their inability to charge prepayment meters) and the significant energy costs of its customers (distributed to other suppliers) could result in destabilisation of other energy suppliers, with wider and more serious ramifications for consumer confidence in the energy retail market.”
“However, in the context of the recent Russia/Ukraine escalation (and resulting wholesale price increases and volatility) we consider it much more likely that we will need to utilise such structures.”