The scope of the new UK subsidy control regime, set out in the Subsidy Control Bill that is currently before parliament, differs little from the EU state aid regime, apart from its non-application to UK primary legislation. The question of whether a tax ruling is a ‘subsidy’ will therefore typically depend on whether it is ‘specific’ – and the answer to that question in a tax context involves applying effectively the same principles as are used to decide whether a tax ruling or tax rule confers a ‘selective advantage’ in EU state aid law. However, while its scope is similar, enforcement and remedies under the new UK regime will be very different to the position under the EU regime: in particular, a substantial enforcement gap is created by the absence of an independent body with powers to initiate investigations of non-published subsidies and the restrictive rules on standing.
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The scope of the new UK subsidy control regime, set out in the Subsidy Control Bill that is currently before parliament, differs little from the EU state aid regime, apart from its non-application to UK primary legislation. The question of whether a tax ruling is a ‘subsidy’ will therefore typically depend on whether it is ‘specific’ – and the answer to that question in a tax context involves applying effectively the same principles as are used to decide whether a tax ruling or tax rule confers a ‘selective advantage’ in EU state aid law. However, while its scope is similar, enforcement and remedies under the new UK regime will be very different to the position under the EU regime: in particular, a substantial enforcement gap is created by the absence of an independent body with powers to initiate investigations of non-published subsidies and the restrictive rules on standing.
If you are not a subscriber, subscribe now to read this content.
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