The State Aid (Revocations and Amendments) (EU Exit) Regulations 2020

Regulation 7(1)

SCHEDULE 1 Amendments to retained EU law

PART 1 Amendments to EU regulations

Amendments to Regulation (EC) No 1184/2006

1.—(1) Council Regulation (EC) No 1184/2006 of 24 July 2006 applying certain rules of competition to the production of and trade in certain agricultural products(1) is amended as follows.

(2) In Article 1, omit “and of Article 108(1) and (3)”.

(3) Omit Article 3.

Amendments to Regulation (EC) No 1370/2007

2.—(1) Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) No. 1191/69 and 1107/70(2) is amended as follows.

(2) In Article 5a, in paragraph 2—

(a) omit the comma after “decide”;

(b) omit “in compliance with State aid rules,”.

Amendments to Regulation (EU) No 575/2013

3.—(1) Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012(3) is amended as follows.

(2) In Article 31—

(a) in paragraph 1(b), for “are considered State aid by the Commission”, substitute “amount to financial support provided by the state”;

(b) in paragraph 1(c), for “pursuant to State aid- rules existing at the time”, substitute “amounting to financial support provided by the state in the United Kingdom, or pursuant to state aid rules in a third country, at the time”.

(3) In Article 242(19), omit “subject to any applicable rules relating to State aid (as defined in the law of the United Kingdom after exit day)”.

Amendment to Regulation (EU) No 1305/2013

4.—(1) Regulation (EU) No 1305/2013 of the European Parliament and of the Council of 17 December 2013 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) and repealing Council Regulation (EC) No 1698/2005(4) is amended as follows.

(2) Omit Article 81.

Amendment to Regulation (EU) No 1307/2013

5.—(1) Regulation (EU) No 1307/2013 of the European Parliament and of the Council of 17 December 2013 establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and repealing Council Regulation (EC) No 637/2008 and Council Regulation (EC) No 73/2009(5) is amended as follows.

(2) Omit Article 13.

Amendment to Regulation (EU) No 1308/2013

6.—(1) Regulation 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007(6) is amended as follows.

(2) Omit Article 211.

Amendments to Regulation (EU) No 1303/2013

7.—(1) Regulation (EU) No 1303/2013 of the European Parliament and of the Council of 17 December 2013 laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund and laying down general provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund and the European Maritime and Fisheries Fund and repealing Council Regulation (EC) No 1083/2006(7) is amended as follows.

(2) In Article 37—

(a) in paragraph (1), omit “State aid and”;

(b) in paragraph (2), in point (b), omit “possible State aid implications,”;

(c) in paragraph (4)—

(i) omit “without prejudice to applicable Union State aid rules, and”;

(ii) omit “within the limits of applicable Union State aid rules and”;

(d) in paragraph (7), omit “applicable Union State aid rules shall be respected and”;

(e) in paragraph (9), omit “, subject to applicable Union State aid rules,”;

(f) omit paragraph (12).

(3) In Article 42(3), omit “State aid rules are complied with and that”.

(4) In Article 43a, omit paragraph (4).

(5) In Article 61, omit paragraph (8).

(6) In Article 62, omit “State aid and”.

(7) In Article 65(8), omit point (e).

(8) In Article 71—

(a) in paragraph (1), omit “or within the period of time set out in State aid rules, where applicable,”;

(b) in paragraph (2), omit the final sentence;

(c) omit paragraph (3).

(9) In Annex 11, in the table in Part 2, omit row 5.

Amendment of Commission Regulation (EU) 808/2014

8.—(1) Commission Implementing Regulation (EU) No 808/2014 of 17 July 2014 laying down rules for the application of Regulation (EU) No 1305/2013 of the European Parliament and of the Council on support for rural development by the European Agricultural Fund for Rural Development (EAFRD)(8) is amended as follows.

(2) In Annex 1, omit paragraph 13.

Amendment to Regulation (EU) No 1144/2014

9.—(1) Regulation (EU) No 1144/2014 of the European Parliament and of the Council of 22 October 2014 on information provision and promotion measures concerning agricultural products implemented in the internal market and in third countries and repealing Council Regulation (EC) No 3/2008(9) is amended as follows.

(2) Omit Article 27.

Amendments to Regulation (EU) 2019/943

10.—(1) Regulation (EU) 2019/943 of the European Parliament and of the Council of 5 June 2019 on the internal market for electricity (recast)(10) is amended as follows.

(2) In Article 5, in paragraph 2—

(a) in point (c)—

(i) after “the Commission”, insert “before IP completion day”;

(ii) after “Articles 107, 108, and 109 TFEU”, insert “as those Articles had effect in EU law immediately before IP completion day”.

(b) in the final sentence, omit “, without prejudice to Articles 107 and 108 TFEU,”.

(3) In Article 12—

(a) in paragraph 2, omit “Without prejudice to Articles 107, 108 and 109 TFEU,”;

(b) in paragraph 3, in the last sentence, omit “Without prejudice to Articles 107, 108 and 109 TFEU,”;

(c) in paragraph 4, omit “Without prejudice to Articles 107, 108 and 109 TFEU,”.

(4) In Article 20, in paragraph 3, omit “as a part of the State aid process”.

(5) In Article 21, in paragraph 1, omit “in accordance with Article 107, 108 and 109 of the TFEU”.

PART 2 Amendments to Transparency Regulations

Amendments to the Financial Transparency (EC Directive) Regulations 2009

11.—(1) The Financial Transparency (EC Directive) Regulations 2009(11) are amended as follows.

(2) In regulation 2(1)—

(a) in the definition of “compensation”, for “Article 87”, substitute “Article 107(1)”;

(b) in the definition of “entrusted”, for “Article 86(2)”, substitute “Article 106(2)”;

(c) in the definition of “Financial Transparency Directive”, after “certain undertakings”, insert “(as that Directive applies to the United Kingdom under Article 10 of the Northern Ireland Protocol)”;

(d) after the definition of “Financial Transparency Directive”; insert —

““Northern Ireland Protocol” means the Protocol on Ireland/Northern Ireland in the EU withdrawal agreement;”;

(e) in the definition of “public undertaking operating in the manufacturing sector”, after “Community”, insert “(as that Regulation had effect in EU law immediately before IP completion day)”;

(f) in the definition of “services of general economic interest”, for “Article 86(2)”, substitute “Article 106(2)”;

(g) in the definition of “Treaty”, for “establishing the European Community”, substitute “on the Functioning of the European Union”.

(3) In regulation 2(2), for “Article 296”, substitute “Article 346(1)”.

(4) After regulation 2(2), insert—

“(3) In these Regulations a reference to Article 106(2), Article 107(1) or Article 346(1) of the Treaty is a reference to that Article as it applies to the United Kingdom under Article 10 of the Northern Ireland Protocol.”.

(5) For regulation 3(5)(b), substitute—

“(b) in relation to any public funds which—

(i) were received by a public undertaking prior to IP completion day in relation to services supplied by a public undertaking which were not liable to affect trade between Member States (within the meaning of the Treaty as it applied to the United Kingdom prior to IP completion day) to an appreciable extent; or

(ii) are received by a public undertaking on or after IP completion day in relation to activities carried out by a public undertaking which are not liable to affect that trade between Northern Ireland and the European Union which is subject to the Northern Ireland Protocol (within the meaning of Article 10 of the Northern Ireland Protocol) to an appreciable extent.”.

(6) In regulation 6(3)—

(a) in sub-paragraph (a), for “the European Union”, substitute “retained EU law”;

(b) for sub-paragraph (b), substitute—

“(b) in relation to —

(i) services which were supplied by an undertaking prior to IP completion day and which were not liable to affect trade between Member States (within the meaning of the Treaty as it applied to the United Kingdom prior to IP completion day) to an appreciable extent; or

(ii) activities carried out by an undertaking on or after IP completion day and which are not liable to affect that trade between Northern Ireland and the European Union which is subject to the Northern Ireland Protocol (within the meaning of Article 10 of the Northern Ireland Protocol) to an appreciable extent.”;

(c) in sub-paragraph (e), for “Article 86(2)”, substitute “Article 106(2)”.

Regulation 7(2)

SCHEDULE 2 Amendments to other legislation

PART 1 Amendments to primary legislation

Banking Act 2009

1.—(1) The Banking Act 2009(12) is amended as follows.

(2) In section 3(1)(13), for the definition of “extraordinary public financial support” substitute—

““extraordinary public financial support” means financial assistance that is provided by the Treasury or the Bank of England in order to preserve or restore the viability, liquidity or solvency of a bank, a banking group company or a group which includes a bank, other than—

(a)

ordinary market assistance offered by the Bank of England on its usual terms, or

(b)

a liquidity facility which is provided—

(i)

to a bank that is facing temporary liquidity problems but is solvent, and

(ii)

by the Bank of England on its own initiative and on its own terms,

and for the purposes of this definition “group” (other than in “banking group company”) has the meaning given in subsection (2)(b);.”.

(3) Omit section 145A(14).

(4) Omit section 256A(15) (and the italic heading before it).

Financial Services Act 2012

2.  Omit section 103 of the Financial Services Act 2012(16).

Financial Services (Banking Reform) Act 2013

3.  Omit paragraph 11 of Schedule 2 to the Financial Services (Banking Reform) Act 2013(17).

PART 2 Amendments to subordinate legislation

Enterprise Act 2002 (Merger Fees and Determination of Turnover) Order 2003

4.—(1) The Enterprise Act 2002 (Merger Fees and Determination of Turnover) Order 2003(18) is amended as follows.

(2) In the Schedule, for the definition of “aid” in paragraph 1, substitute—

““aid” means a measure which—

(a)

fulfils the conditions set out in Article 1.1 of the Agreement on Subsidies and Countervailing Measures contained in Annex 1A to the WTO Agreement, and

(b)

is specific within the meaning of Article 2 of that Agreement, irrespective of whether the recipient deals in goods or services;”.

Electronic Communications (Networks and Services) (Penalties) (Rules for Calculation of Turnover) Order 2003

5.—(1) The Electronic Communications (Networks and Services) (Penalties) (Rules for Calculation of Turnover) Order 2003(19) is amended as follows.

(2) In the Schedule, in paragraph 4—

(a) the existing text is renumbered as sub-paragraph (1);

(b) in sub-paragraph (1), omit “(within the meaning of Article 87 of the EC Treaty)”;

(c) at the end, insert—

“(2)  In this paragraph “aid” means a measure which—

(a) fulfils the conditions set out in Article 1.1 of the Agreement on Subsidies and Countervailing Measures contained in Annex 1A to the WTO Agreement, and

(b) is specific within the meaning of Article 2 of that Agreement, irrespective of whether the recipient deals in goods or services.”.

Water Mergers (Determination of Turnover) Regulations 2004

6.—(1) The Water Mergers (Determination of Turnover) Regulations 2004(20) are amended as follows.

(2) In the Schedule, for paragraph 1, substitute—

“1.   In this Schedule “aid means a measure which—

(a) fulfils the conditions set out in Article 1.1 of the Agreement on Subsidies and Countervailing Measures contained in Annex 1A to the WTO Agreement, and

(b) is specific within the meaning of Article 2 of that Agreement, irrespective of whether the recipient deals in goods or services.”.

Pension Protection Fund (Partially Guaranteed Schemes) (Modification) Regulations 2005

7.—(1) The Pension Protection Fund (Partially Guaranteed Schemes) (Modification) Regulations 2005(21) are amended as follows.

(2) For regulation 2(2), substitute—

“(2) Paragraph (1) shall not apply in relation to a partially guaranteed scheme where—

(a) the scheme was in existence immediately prior to IP completion day; and

(b) the application of paragraph (1) immediately prior to IP completion day would have given rise to State aid that was incompatible with the internal market within the meaning of Article 107 of the Treaty as it had effect in the United Kingdom immediately prior to IP completion day.”.

Water Industry (Determination of Turnover for Penalties) Order 2005

8.—(1) The Water Industry (Determination of Turnover for Penalties) Order 2005(22) is amended as follows.

(2) In article 2(1), for the definition of “aid” substitute—

““aid” means a measure which—

(a)

fulfils the conditions set out in Article 1.1 of the Agreement on Subsidies and Countervailing Measures contained in Annex 1A to the WTO Agreement, and

(b)

is specific within the meaning of Article 2 of that Agreement, irrespective of whether the recipient deals in goods or services.”.

Pension Protection Fund (Entry Rules) Regulations 2005

9.—(1) The Pension Protection Fund (Entry Rules) Regulations 2005(23) are amended as follows.

(2) For regulation 2(1A), substitute—

“(1A) Paragraph (1)(d) shall not apply in relation to a scheme where—

(a) the scheme was in existence immediately prior to IP completion day; and

(b) the application of paragraph (1)(d) immediately prior to IP completion day would have given rise to State aid that was incompatible with the internal market within the meaning of Article 107 of the Treaty as it had effect in the United Kingdom immediately prior to IP completion day.”.

Mobile Roaming (European Communities) Regulations 2007

10.—(1) The Mobile Roaming (European Communities) Regulations 2007(24) are amended as follows.

(2) In regulation 6—

(a) in paragraph (4), omit “(within the meaning of Article 107 of the Treaty on the Functioning of the European Union)”;

(b) at the end, insert—

“(5) In this regulation “aid” means a measure which—

(a) fulfils the conditions set out in Article 1.1 of the Agreement on Subsidies and Countervailing Measures contained in Annex 1A to the WTO Agreement, and

(b) is specific within the meaning of Article 2 of that Agreement, irrespective of whether the recipient deals in goods or services.”.

Community Infrastructure Levy Regulations 2010

11.—(1) The Community Infrastructure Levy Regulations 2010(25) are amended as follows.

(2) In regulation 2(1), in the definition of “discretionary charitable relief”, omit “or 45”.

(3) In regulation 41—

(a) in paragraph (1), omit the definition of “State aid”;

(b) in paragraph (2), omit “or 45”.

(4) In regulation 42A—

(a) in paragraph (1), omit “Subject to paragraphs (5) and (6),”;

(b) omit paragraph (5) and (6).

(5) In regulation 42B(4), omit “, and subject to regulation 42A(5),”.

(6) In regulation 42C(3), omit sub-paragraph (b) and the “or” before it.

(7) In regulation 43(2)—

(a) after sub-paragraph (a), insert “or”;

(b) omit sub-paragraph (c) and the “or” before it.

(8) In regulation 44, omit paragraph (5).

(9) Omit regulation 45.

(10) In regulation 46—

(a) in paragraph (1)(a)(i), omit “or 45 (or both)”;

(b) in paragraph (2)(a)(i), omit “or 45 (or both)”.

(11) In regulation 54A—

(a) in paragraph (1), omit “Subject to paragraphs (10) and (11),”;

(b) omit paragraphs (10) and (11).

(12) In regulation 54B(4), omit “, and subject to regulation 54A(10),”.

(13) In regulation 54D(3), omit sub-paragraph (b) and the “or” before it.

(14) In regulation 55(3)(c), omit paragraph (iii) and the “and” before it.

Climate Change Agreements (Administration) Regulations 2012

12.—(1) The Climate Change Agreements (Administration) Regulations 2012(26) are amended as follows.

(2) In regulation 17, omit paragraphs (1) and (2).

Electricity Capacity Regulations 2014

13.—(1) The Electricity Capacity Regulations 2014(27) are amended as follows.

(2) In regulation 26—

(a) omit paragraph (3)(a);

(b) omit paragraph (5);

(c) in paragraph (7), for “Paragraphs (5)(a) and (6) are” substitute “Paragraph (6) is”.

(3) In regulation 28—

(a) in paragraph (1), for “26(5) or (6)” substitute “26(6)”;

(b) in paragraph (4), for “26(5)(a) or (6)” substitute “26(6)”.

Payment of Pension Levies for Past Periods Regulations 2014

14.—(1) The Payment of Pension Levies for Past Periods Regulations 2014(28) are amended as follows.

(2) In regulation 3(7), after “794/2004”, insert “(as it had effect in the United Kingdom immediately prior to IP completion day)”.

Bank Recovery and Resolution (No. 2) Order 2014

15.—(1) The Bank Recovery and Resolution (No. 2) Order 2014(29) is amended as follows.

(2) In article 161(3), omit sub-paragraph (b).

(3) In article 168(3), omit sub-paragraph (b).

Open Internet Access (EU Regulation) Regulations 2016

16.—(1) The Open Internet Access (EU Regulation) Regulations 2016(30) are amended as follows.

(2) In regulation 24—

(a) in paragraph (4), omit “(within the meaning of Article 107 of the Treaty on the Functioning of the European Union)”;

(b) at the end, insert—

“(5) In this regulation “aid” means a measure which—

(a) fulfils the conditions set out in Article 1.1 of the Agreement on Subsidies and Countervailing Measures contained in Annex 1A to the WTO Agreement, and

(b) is specific within the meaning of Article 2 of that Agreement, irrespective of whether the recipient deals in goods or services.”.

Capital Requirements (Amendment) (EU Exit) Regulations 2018

17.—(1) The Capital Requirements (Amendment) (EU Exit) Regulations 2018(31) are amended as follows.

(2) In regulation 86, omit paragraphs (a) and (b).

Common Organisation of the Markets in Agricultural Products Framework (Miscellaneous Amendments, etc.) (EU Exit) Regulations 2019

18.—(1) The Common Organisation of the Markets in Agricultural Products Framework (Miscellaneous Amendments, etc.) (EU Exit) Regulations 2019(32) are amended as follows.

(2) Omit regulation 68.

(3) Omit regulation 113.

Intra-EU Communications (EU Regulation) Regulations 2019

19.—(1) The Intra-EU Communications (EU Regulation) Regulations 2019(33) are amended as follows.

(2) In regulation 9—

(a) in paragraph (4), omit “(within the meaning of Article 107 of the Treaty on the Functioning of the European Union)”;

(b) at the end, insert—

“(5) In this regulation “aid” means a measure which—

(a) fulfils the conditions set out in Article 1.1 of the Agreement on Subsidies and Countervailing Measures contained in Annex 1A to the WTO Agreement, and

(b) is specific within the meaning of Article 2 of that Agreement, irrespective of whether the recipient deals in goods or services.”.

Regulation 8

SCHEDULE 3 Transitional and savings provisions

Claims before a court or tribunal relating to State aid infringement before IP completion day

1.—(1) In this paragraph, “State aid breach” means a breach or alleged breach of—

(a) the prohibition in Article 107(1) of the TFEU; and

(b) the obligation in Article 108(3) of the TFEU.

(2) The cessation of the rights, powers, liabilities, obligations, restrictions, remedies and procedures provided for by regulation 4 and the revocations provided for by regulations 5, 6 and 7 do not affect the ability of any person on or after IP completion day—

(a) to continue any existing claim (or defence to such a claim) in relation to a State aid breach which occurred before IP completion day in proceedings before a court or tribunal in the United Kingdom; or

(b) to begin any new claim (or defence to such a claim) in relation to a State aid breach which occurred before IP completion day in proceedings before a court or tribunal in the United Kingdom which the person could have made before IP completion day.

(3) If a person has acquired a right to begin proceedings from another person (whether by operation of law or otherwise), the reference in subparagraph (2)(b) to proceedings which a person could have made before IP completion day includes proceedings which that other person could have begun before IP completion day.

(1)

EUR 1184/2006.

(2)

EUR 1370/2007, as amended by S.I. 2020/504.

(3)

EUR 575/2013, as amended by S.I. 2018/1401, S.I. 2019/264, S.I. 2019/710 and S.I. 2019/1232.

(4)

EUR 1305/2013, as amended by S.I. 2019/748, S.I. 2019/764 and S.I. 2019/1422.

(5)

EUR 1307/2013, as amended by section 5 of the Direct Payments to Farmers (Legislative Continuity) Act 2020 (c. 2) and by S.I. 2019/207 and S.I. 2020/91.

(6)

EUR 1308/2013, as amended by S.I. 2019/821, S.I. 2019/831 and S.I. 2019/1422.

(7)

EUR 1303/2013, as amended by S.I 2019/748, S.I. 2019/785 and S.I. 2019/1422.

(8)

EUR 808/2014, as amended by S.I. 2019/770.

(9)

EUR 1144/2014, as amended by S.I. 2019/821 and S.I. 2019/831.

(10)

EUR 2019/943, as amended by S.I. 2020/1006.

(11)

S.I. 2009/2331, amended by S.I. 2011/1043 and S.I. 2011/1275.

(12)

2009 c. 1.

(13)

Section 3 was amended by S.I. 2014/3329, S.I. 2016/1239, S.I. 2018/1394 and S.I. 2019/1212.

(14)

Section 145A was inserted by section 103 of the Financial Services Act 2012 (c. 21) and amended by S.I. 2014/3329.

(15)

Section 256A was inserted by paragraph 11 of Schedule 2 to the Financial Services (Banking Reform) Act 2013 (c. 33) and amended by S.I. 2014/3329.

(16)

2012 (c. 21).

(17)

2013 (c. 33).

(18)

S.I. 2003/1370, amended by S.I. 2012/1809; there are other amending instruments but none is relevant.

(19)

S.I. 2003/2712.

(20)

S.I. 2004/3206, amended by S.I. 2012/1809; there are other amending instruments but none is relevant.

(21)

S.I. 2005/277, amended by S.I. 2010/196; there are other amending instruments but none is relevant.

(22)

S.I. 2005/477, amended by S.I. 2012/1809; there are other amending instruments but none is relevant.

(23)

S.I. 2005/590, amended by S.I. 2010/196; there are other amending instruments but none is relevant.

(24)

S.I. 2007/1933, amended by S.I. 2012/1809; there are other amending instruments but none is relevant.

(25)

S.I. 2010/948, amended by S.I. 2014/385; there are other amending instruments but none is relevant.

(26)

S.I. 2012/1976, to which there are amendments not relevant to these Regulations.

(27)

S.I. 2014/2043, amended by S.I. 2014/3354 and S.I. 2019/862.

(28)

S.I. 2014/2939.

(29)

S.I. 2014/3348, amended by S.I. 2016/1239 and S.I. 2017/80.

(30)

S.I. 2016/607.

(31)

S.I. 2018/1401.

(32)

S.I. 2019/821.

(33)

S.I. 2019/980.