When can a subsidy be challenged?

05/06/26

Section 70 of the Subsidy Control Act 2022 (“the Act”) confers jurisdiction on the Competition Appeal Tribunal to review any “subsidy decision”, which is defined as a “decision to give a subsidy”.

A public authority which is considering giving financial assistance to an enterprise may adopt a staged approach to its decision-making. It may, in particular, make a decision “in principle” to give assistance, subject to completing due diligence, finalising the terms of the transaction, and undertaking a final assessment of whether the subsidy control principles are satisfied. Is an “in principle” decision of this kind a “subsidy decision” within the meaning of s.70 of the Act that can be reviewed by the Tribunal? In Weis v Greater Manchester Combined Authority [2025] CAT 41 at §§151-153, the Tribunal answered that question in the affirmative.

In a judgment handed down today, a different constitution of the Tribunal has departed from the construction of s.70 in Weis. The Tribunal has held that, while a “subsidy decision” may precede the execution of the formal legal documents that grant a subsidy, the correct interpretation of s.70 is that a public authority must make a formal, final decision to give a subsidy for the Tribunal’s jurisdiction to arise, and that the Tribunal has no jurisdiction to review a decision “in principle” to give assistance which is subject to later steps in the decision-making process. In so holding, the Tribunal struck out an application for review under s.70 of the Act brought against Durham County Council which sought to challenge proposed grants for the regeneration of sites in Bishop Auckland town centre in circumstances where the Council had not made a final decision to award the grants.

The Tribunal also struck out a separate claim against the Council, in which it was alleged that it had contravened the Chapter I and Chapter II prohibitions in Part 1 of the Competition Act 1998 in connection with the regeneration of Bishop Auckland.

The judgment of the Tribunal (the President (Mrs Justice Bacon DBE), Mr Robert Herga & Professor Pablo Ibáñez Colomo) in Thomas v Durham CC [2026] CAT 47 can be read here.