State Aid in UK Law

But the aim of both the tax and the NIC provisions (an aim which they may be expected to achieve) is to ensure that individuals who ought to pay tax and NIC as employees cannot, by the assumption of a corporate structure, reduce and defer the liabilities imposed on employees by the United Kingdom's system of personal taxation.

Leaving merits aside for a moment, there seem to me to be a number of factors of significance in the present case: the importance of vindicating the rule of law, as Lord Diplock emphasised at 644E; the importance of the issue raised, as in ex parte Child Poverty Action Group and Others; the likely absence of any other responsible challenger, as in ex parte Child Poverty Action Group and Others and ex parte Greenpeace Ltd; the nature of the breach of duty against which relief is sought (See per Lord Wilberforce at 630D in ex parte National Federation of the Self-Employed and Small Businesses Ltd); and the prominent role of these Applicants in giving advice, guidance and assistance with regard to aid (See ex parte Child Poverty Action Group and Others at 1048J).

It is true that the test for article 8 as it is stated in the Strasbourg jurisprudence (whether those affected have been involved in the decision-making process, viewed as a whole, to a degree sufficient to provide them with the requisite protection of their interests) differs from the test for article 6(1) (whether there has been effective access to court).

This criticism is, at root, misconceived. The Council is responsible for the local government of its area and those who live in it, to which it owes substantial duties. For any decision it makes, it is likely to begin with its political objectives and aspirations. The Council adopted the Arena as part of its policy for the regeneration of North-East Coventry. It is entitled – if not bound – to have continuing regard to its policies in that regard.

The important point made by the Council is that it does not provide its commercial waste collection services on a commercial basis but under a specific regime for environmental protection, which is directed to the public benefit not to the economic advantage of local authorities, and that as such its factual and legal situation is not comparable to that of TDC.

Without legislation this provision could not have been used by our courts to grant (for instance) Mareva injunctions over assets situated in this country in aid of substantive proceedings pending in other E.E.C. jurisdictions. To do so would have been contrary to the decision of the House of Lords in The Siskina v. Distos Compania Naviera S.A. (1979) A.C. 210.