Subsidy Control Act 2022

Part 5: Enforcement

Section 70: Review of subsidy decisions

211. This section enables interested parties to apply to the Competition Appeal Tribunal (CAT) for the review of a decision to give a subsidy or to make a subsidy scheme (a ‘subsidy decision’). A person whose interests may be affected by a subsidy decision will be an interested party for these purposes. This might most typically be a competitor of the beneficiary or a trade association. However, depending on the nature of the subsidy, it could also extend to others, such as a local authority or devolved administration. The Secretary of State is expressly included as an interested party.
212. Interested parties must bring claims in line with the CAT’s rules, including sending their notice of appeal within the time limits provided in new Part 5A of the Competition Appeal Tribunal Rules 2015 (as inserted by this Act).
213. This section also makes provision as to the principles that the CAT must apply when determining an application for a review of a subsidy decision. In proceedings in England and Wales or Northern Ireland, the CAT must apply the same principles as the High Court applies in judicial reviews. For proceedings in Scotland, the CAT must apply the same principles as the Court of Session would apply on an application to the supervisory jurisdiction of the Court.
214. Any application to the CAT to review a subsidy decision does not have the effect of suspending that decision unless otherwise directed by the Tribunal.

Section 71: Time limits for applications under section 70

215. This section amends the Competition Appeal Tribunal Rules 2015 to set out the time limits for applying to the CAT for the review of a subsidy decision.
216. Interested parties must send their notice of appeal to the CAT within one month of the relevant date. The relevant date in relation to a subsidy decision will vary depending on the circumstances.
     1. If an interested party makes a pre-action information request within one month of the transparency date, then the relevant date will be the date on which the public authority provides notice that it has provided the required information in response to the request.
     2. If a post-award referral is made to the CMA in relation to a subsidy or scheme, the relevant date is the date on which the CMA publishes its post-award referral report.
     3. If both a pre-action request and post-award referral is made, the time limit will run from whatever happens later: the notification in response to the pre-action request or the publication of the post-award referral report. This ensures that an interested party will be able to take into account any response to its pre-action request or the publication of the post-award referral report in deciding whether to bring an application to review a subsidy decision.
217. If neither a pre-action request nor post-award referral is made, the relevant date from when the one-month time limit will run is the ‘transparency date’, which is the date the transparency requirements are met through publication of the details of the subsidy or scheme on the subsidy database. A minor error or omission in an entry for the subsidy or scheme may be disregarded by the CAT for these purposes. If the subsidy is exempt from the requirement to publish information on the subsidy database, then the ‘transparency date’ is the date on which the interested party first knew, or ought to have known, about the subsidy decision in question.
218. The CAT may not extend the one-month time limit unless there are exceptional circumstances that merit such an extension.

Section 72: CAT powers on review: England and Wales and Northern Ireland

219. This section confers power on the CAT to grant certain forms of relief similar to the High Court on an application for judicial review in England and Wales or Northern Ireland.
220. Where it has jurisdiction, the CAT may grant a mandatory order (an order that the respondent does something); a prohibiting order (an order that the respondent stops doing something); a quashing order (an order setting aside a decision); a declaration; or an injunction. These remedies have the same effect as if made by the High Court. In determining whether to grant a remedy, the Tribunal must apply the same principles that would be applied by the High Court in deciding whether to grant relief on an application for judicial review.
221. The CAT may likewise refuse to grant relief in the same circumstances as the High Court may refuse to grant relief on an application for judicial review, namely where:
     1. there has been an undue delay in making the application, or the granting of the remedy sought would likely cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration; or
     2. if it appears to the CAT to be highly likely that the outcome for the interested party would not have been substantially different if the conduct complained of had not occurred (in which case the CAT must refuse relief unless there are reasons of exceptional public interest).

Section 73: CAT powers on review: Scotland

222. This section sets out that the powers of the CAT in proceedings in Scotland are the same as those as the Court of Session in an application to the supervisory jurisdiction of that Court and they should apply the same principles as the Court of Session would in these cases.

Section 74: Recovery orders

223. This section confers a power on the CAT to make a recovery order if it has granted relief in respect of a subsidy decision (e.g. a quashing order) and found that the decision was in contravention of the subsidy control requirements in Chapter 1 and 2 of Part 2 of this Act.
224. A recovery order requires a public authority to recover some or all of the subsidy from the beneficiary (or beneficiaries) in accordance with the terms of the order. A recovery order may provide for how the subsidy is to be recovered, the amount to be recovered, or require that the subsidy is recovered within a particular time or with the payment of interest. Where an order is made in respect of a subsidy scheme, the CAT may require that all or some of the subsidies under that scheme be recovered.

Section 75: Appeals against decisions of the CAT

225. This section provides the basis on which appeals can be made to the Court of Appeal in England and Wales or Northern Ireland or the Court of Session in Scotland. Appeals may be made on any point of law with permission either from the Tribunal or the relevant appellate court.

Section 76: Duty to provide pre-action information

226. This section imposes a duty on public authorities to provide certain information to interested parties about a subsidy or subsidy scheme. An interested party may request the information for the purpose of deciding whether to apply to the CAT for a review of a subsidy or scheme on the grounds that it failed to comply with the relevant subsidy control requirements. A request must be provided in writing and the interested party must state that they are considering applying for a review.
227. The public authority must respond to a request within 28 days. The public authority may impose such restrictions as it considers proportionate to protect commercially sensitive, confidential or legally privileged information, or information whose disclosure would otherwise be contrary to the public interest.

Section 77: Misuse of subsidies

228. This section confers a right on public authorities to recover subsidies that are used for a purpose other than that for which they were given. The right to recover is enforceable as if it were a contract right and it does not affect any other remedies that might be available to the public authority with respect to the award of the subsidy in question (for example, any remedies the public authority might have under contract law or the law of restitution).