No subsidy granted to the National Lottery: challenge before the CAT dismissed

02/03/26

In a judgment handed down on Thursday 26 February 2026, the Competition Appeal Tribunal (Bacon J, Ben Tidswell & Derek Ridyard) dismissed an application for review under s.70 of the Subsidy Control Act 2022 brought by the New Lottery Company Ltd, Northern & Shell plc and The Health Lottery Elm Ltd. The Applicants challenged a decision of the Gambling Commission made on 19 July 2023, which permitted the then operator of the National Lottery, Camelot UK Lotteries Limited, to retain £70.21m of the gross revenues of the National Lottery in order to invest them in the marketing of that lottery.

The Tribunal found that the decision did not involve the giving of a subsidy to the Interveners because the commercial market operator (“CMO”) principle in s.3(2) of the 2022 Act applied. The judgment contains an extensive analysis of whether and how the CMO principle can apply where a public authority is pursuing public policy (as well as commercial) objectives and where there is no actual market comparator by reference to which the public authority’s decision can be compared.

Even if the decision had involved the giving of a subsidy, the Tribunal also held that it would have refused relief under s.72(8)(a) of the 2022 Act on the grounds of undue delay. The Tribunal held that where a public authority did not consider it had given a subsidy and so did not enter its decision onto the subsidy database, proceedings for review should normally be issued within one month of the date on which the applicant was or should have been aware of the decision, unless within that period a request for information was made to the authority, in which case proceedings should normally be issued within a month of the information being provided.

The judgment of the Tribunal ([2026] CAT 14) can be read here.