Subsidy Control Bill (HL Bill 84)

Part 5 continued    

(4)The notice of appeal must be sent within the period specified, in relation to the
decision appealed against, in Part 5A of the Tribunal Procedure Rules.

(5)In determining the application, the Tribunal must apply the same principles as
would be applied—

(a)5in the case of proceedings in England and Wales or Northern Ireland,
by the High Court in determining proceedings on judicial review;

(b)in the case of proceedings in Scotland, by the Court of Session on an
application to the supervisory jurisdiction of that Court.

(6)Except so far as the Tribunal directs otherwise, the effect of a subsidy decision
10is not suspended by reason of the making of an application under this section.

(7)In this Part—

• “interested party” means—

  (a)

  a person whose interests may be affected by the giving of the
  subsidy or the making of the subsidy scheme in respect of
  15which the application under subsection (1) is made, or

  (b)

  the Secretary of State;

• “subsidy decision” means a decision to give a subsidy or make a subsidy
  scheme;

• “the Tribunal” means the Competition Appeal Tribunal;

• 20“Tribunal Procedure Rules” means rules made under section 15 of the
  Enterprise Act 2002.

71 Time limits for applications under section 70

(1)The Competition Appeal Tribunal Rules 2015 (S.I. 2015/1648) are amended as
follows.

(2)25In rule 3 (application of Rules)—

(a)in paragraph (b) after “5” insert “, 5A”;

(b)after paragraph (e) insert—

“(ea)Part 5A applies to applications under section 70 of the
Subsidy Control Act 2021 for reviews of subsidy
30decisions (within the meaning of that section);”.

(3)After rule 98 insert—

“Part 5A Applications under section 70 of the Subsidy Control Act 2021

98A Time limits for applications

(1)35An application to the Tribunal under section 70 in respect of a subsidy
decision must be made by sending a notice of appeal before the end of
one month beginning with the relevant date in relation to that decision.

(2)The “relevant date” in relation to a subsidy decision is—

(a)in a case where a pre-action information request in respect of
40the subsidy or scheme concerned is made within one month of

the transparency date, the date on which the notice under
paragraph (8) is given;

(b)in a case where a post-award referral is made in respect of the
subsidy or scheme, the date on which the post-award referral
5report is published under section 62;

(c)in any other case, the transparency date for the subsidy or
scheme.

(3)If both of sub-paragraphs (a) and (b) of paragraph (2) apply, the
relevant date is the later of the dates given by those sub-paragraphs.

(4)10In paragraph (2)—

(a)“pre-action information request” means a request for
information under section 76;

(b)“the transparency date” for a subsidy or scheme is—

(i)in a case where the application relates to a subsidy or
15scheme in respect of which the duty under section 33(1)
or (5) does not apply, the date on which the interested
party first knew or ought to have known of the making
of the subsidy decision;

(ii)in any other case, the date on which an entry in respect
20of the subsidy or scheme is made on the subsidy
database in accordance with the duty under section
33(1) or (5);

(c)“post-award referral” means a referral made under section 60.

(5)In determining for the purposes of paragraph (4)(b) the date on which
25an entry is made on the subsidy database in accordance with a duty
under section 33(1) or (5), the Tribunal may direct that a minor
omission or error in the making of the entry is to be disregarded.

(6)An omission or error is “minor” for the purposes of paragraph (5) if it
appears to the Tribunal that it had no prejudicial impact on the
30interested party in assessing whether to make a pre-action information
request.

(7)The Tribunal may not extend the time limits provided for in this rule
unless it is satisfied that the circumstances are exceptional.

(8)For the purpose of paragraph (2)(a), a public authority must give notice
35to the interested party that the public authority has provided
information in response to a request made under section 76(1).

(9)In this rule—

(a)references to sections are to sections of the Subsidy Control Act
2021;

(b)40“public authority”, “subsidy”, “subsidy database” and “subsidy
decision” have the same meanings as in that Act.”

(4)Nothing in this section affects the power in section 15 of the Enterprise Act 2002
to revoke or amend the Competition Appeal Tribunal Rules 2015, as those
Rules are amended by this section.

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

(1)This section applies to applications under section 70 in England and Wales or
Northern Ireland.

(2)The Tribunal must either dismiss the application or grant the following kinds
5of relief—

(a)a mandatory order;

(b)a prohibiting order;

(c)a quashing order;

(d)a declaration;

(e)10an injunction.

(3)Where the Tribunal grants relief under subsection (2)(c), it may refer the matter
back to the person who made the decision with a direction to reconsider and
make a new decision in accordance with its ruling.

(4)In making a reference under subsection (3) the Tribunal may not direct the
15person who made the decision to take any action that the person would not
otherwise have the power to take in relation to the decision.

(5)Relief under subsection (2) granted by the Tribunal—

(a)has the same effect as the corresponding relief granted by the High
Court on the determination of proceedings for judicial review, and

(b)20is enforceable as if it were relief granted by the High Court on an
application for judicial review.

(6)In deciding whether to grant relief under subsection (2) the Tribunal must
apply the principles that the High Court would apply in deciding whether to
grant that relief on an application for judicial review.

(7)25Where the Tribunal grants relief under subsection (2), it may also make a
recovery order in accordance with section 74.

(8)The Tribunal may refuse to grant any relief sought on an application if the
Tribunal considers—

(a)that there has been undue delay in making the application, or

(b)30that granting the relief sought on the application would be likely to
cause substantial hardship to, or substantially prejudice the rights of,
any person or would be detrimental to good administration.

(9)In cases arising under the law of England and Wales, subsections (2A) and (2B)
of section 31 of the Senior Courts Act 1981 apply to the Tribunal in deciding
35whether to grant relief under this section as they apply to the High Court when
deciding whether to grant relief on an application for judicial review.

(10)If the Tribunal grants relief in reliance on section 31(2B) of the Senior Courts
Act 1981 as applied by subsection (9), the Tribunal must certify that the
condition in section 31(2B) as so applied is satisfied.

(11)40For the purposes of the application of subsection (5)(a) in relation to appeals in
Northern Ireland—

(a)a mandatory order corresponds to an order of mandamus,

(b)a prohibiting order corresponds to an order of prohibition, and

(c)a quashing order corresponds to an order of certiorari.

73 CAT powers on review: Scotland

(1)This section applies to applications under section 70 in Scotland.

(2)The powers of the Tribunal in respect of such applications are the same as the
powers of review of the Court of Session in an application to the supervisory
5jurisdiction of that Court.

(3)In the exercise of its powers by virtue of subsection (2), the Tribunal may also
make a recovery order in accordance with section 74.

(4)In deciding how to exercise its powers, the Tribunal must apply principles that
the Court of Session would apply in deciding an application to the supervisory
10jurisdiction of that Court.

(5)An order of the Tribunal by virtue of subsection (2)—

(a)has the same effect as the corresponding order granted by the Court of
Session on an application to the supervisory jurisdiction of that Court,
and

(b)15is enforceable as if it were an order so granted by that Court.

74 Recovery orders

(1)The Tribunal may make a recovery order if—

(a)in exercise of its powers under section 72 or 73, it grants relief in respect
of a decision of a public authority to give a subsidy or make a subsidy
20scheme, and

(b)in granting that relief the Tribunal finds that the decision did not
comply with a requirement of Chapter 1 or 2 of Part 2.

(2)A recovery order is an order that—

(a)confers a right on a public authority that has given a subsidy to recover
25the amount of that subsidy from the beneficiary, and

(b)requires the public authority to exercise that right in accordance with
the order.

(3)A recovery order may—

(a)provide for how the right to recover a subsidy under the order is to be
30exercised;

(b)require that the right is exercised by such time as the order may specify;

(c)relate to the whole of a subsidy or to such part as the order may
provide;

(d)where made in relation to subsidies given under a subsidy scheme,
35relate to all such subsidies or only to those subsidies specified in the
order;

(e)require the payment of interest in accordance with the order.

(4)A recovery order is enforceable as though it were an order made by the High
Court or, in relation to Scotland, the Court of Session.

75 40Appeals against decisions of the CAT

(1)An appeal lies to the appellate court on any point of law arising from a decision
of the Tribunal under the preceding provisions of this Part.

(2)An appeal under this section may be brought by—

(a)a party to the proceedings before the Tribunal, or

(b)any other person who has a sufficient interest in the matter.

(3)An appeal under this section requires the permission of the Tribunal or the
appellate court.

(4)5In this section “the appellate court” means—

(a)in relation to England and Wales and Northern Ireland, the Court of
Appeal, and

(b)in relation to Scotland, the Court of Session.

Pre-action information

76 10Duty to provide pre-action information

(1)An interested party may make a request to a public authority for information
about a subsidy, or subsidy scheme, that the authority has given or made.

(2)A request under subsection (1)—

(a)must be made in writing, and

(b)15must state that it is being made only for the purpose of deciding
whether to apply for a review of a subsidy decision under section 70, on
the ground that the decision did not comply with a requirement of
Chapter 1 or 2 of Part 2.

(3)Where a public authority receives a request under subsection (1), the authority
20must provide such information as would enable, or assist in, the making of a
determination as to whether the subsidy was given, or the scheme was made,
in accordance with the requirements of Chapters 1 and 2 of Part 2.

(4)The information must be provided by the public authority—

(a)in writing, and

(b)25within 28 days of receiving the request for information.

(5)In providing information, a public authority may impose such restrictions as it
considers proportionate in order to protect—

(a)commercially sensitive information,

(b)confidential information,

(c)30information subject to legal privilege, or

(d)information, the disclosure of which would be contrary to the public
interest.

(6)Information provided in response to a request made under this section may be
used only—

(a)35for the purpose for which it was requested, and

(b)in accordance with any restrictions imposed by the public authority
under subsection (5).

Misuse

77 Misuse of subsidies

(1)A public authority which has given a subsidy has the right to recover from the
beneficiary the whole or part of its amount to the extent that the subsidy is used
5for a purpose other than the purpose for which it was given.

(2)The right conferred by subsection (1) is enforceable as if created by contract
between the public authority and the beneficiary.

(3)Nothing in this section affects any other remedy that the public authority may
have in connection with the giving of the subsidy.

10Part 6 Miscellaneous and general

Chapter 1 Miscellaneous

78 Subsidies and schemes in primary legislation

15Schedule 3 applies provisions of this Act in the case of subsidies provided, or
subsidy schemes made, by means of primary legislation.

79 Guidance

(1)The Secretary of State may issue guidance about the practical application of—

(a)the subsidy control principles;

(b)20the energy and environment principles;

(c)the subsidy control requirements in Chapters 2 and 3 of Part 2;

(d)the exemptions under Part 3 in respect of the subsidy control
requirements;

(e)Chapter 1 of Part 4 (including the criteria to be used in determining
25whether a subsidy or subsidy scheme falls within the meaning of a
subsidy, or subsidy scheme, of interest or particular interest under
section 11 when applying that Chapter);

(f)section 77 (misuse of subsidies);

(g)section 81 (modifications to subsidies and schemes).

(2)30Guidance under subsection (1)(a) to (c) may, in particular, deal with (or with
any matter connected with)—

(a)the determination of whether financial assistance constitutes a subsidy
for the purposes of this Act;

(b)the meaning or effect of the subsidy control principles;

(c)35the meaning or effect of the energy and environment principles;

(d)the operation of the duty under section 12 or 13 as it applies to—

(i)public authorities generally, or

(ii)public authorities of a particular description,

when exercising functions within the scope of the duty.

(3)The powers conferred by this section include power to give guidance about the
practical application of principles, requirements and exemptions in different
descriptions of case (including different descriptions of persons benefiting
from subsidies).

(4)5The Secretary of State—

(a)must publish guidance issued under this section,

(b)must keep the guidance under review, and

(c)may from time to time revise or replace the guidance.

(5)Before issuing guidance under this section, the Secretary of State must consult
10such persons as the Secretary of State considers appropriate.

(6)A public authority must have regard to guidance issued under this section (so
far as applicable to the authority and the circumstances of the case) when
giving a subsidy or making a subsidy scheme.

80 Disclosure of information

(1)15This section applies to a duty or power to disclose or use information where the
duty or power is imposed or conferred by or under any provision of this Act.

(2)A duty or power to which this section applies does not operate to require or
authorise the disclosure or use of information if the disclosure or use would
contravene the data protection legislation (but the duty or power is to be taken
20into account in determining whether the disclosure or use would contravene
that legislation).

(3)In Schedule 14 to the Enterprise Act 2002 (disclosure of information: specified
functions), at the appropriate place insert—

• “Subsidy Control Act 2021.”

(4)25For the purposes of the law relating to defamation, absolute privilege attaches
to any advice given, or report made, by the CMA (or a person acting on the
CMA’s behalf) in the exercise of any functions of the CMA under this Act.

(5)In this section “data protection legislation” has the same meaning as in the Data
Protection Act 2018 (see section 3 of that Act).

81 30 Modifications to subsidies and schemes

(1)The modification of a subsidy or a subsidy scheme is to be treated for the
purposes of this Act as the giving of a new subsidy, or the making of a new
subsidy scheme, for the purposes of the application of the subsidy control
requirements.

(2)35Subsection (1) does not apply if the modification is only a permitted
modification.

(3)A modification to a subsidy or subsidy scheme is a “permitted modification” if
it is a modification of any of the following kinds—

(a)a legacy subsidy modification;

(b)40a withdrawal agreement subsidy modification;

(c)a modification (whether made under section 8 of the European Union
(Withdrawal) Act 2018 or otherwise) to prevent, remedy or mitigate—

(i)any failure of the subsidy or scheme to operate effectively, or

(ii)any other deficiency relating to the subsidy or scheme,

arising from the withdrawal of the United Kingdom from the European
Union;

(d)the amendment made by section 48(4);

(e)5an administrative modification;

(f)an increase of up to 25% of the original budget for the subsidy or
subsidy scheme;

(g)an extension of a subsidy scheme by up to six years (in total) beginning
with the date on which the subsidy scheme would otherwise have
10terminated.

(4)In subsection (3)(a), “legacy subsidy modification” means the modification of a
legacy subsidy, or a legacy scheme, as permitted under the subsidy or scheme
in accordance with its terms as they had effect before the coming into force of
this section.

(5)15In subsection (3)(b), “withdrawal agreement subsidy modification” means the
modification of a withdrawal agreement subsidy, or a withdrawal agreement
scheme, as permitted under the subsidy or scheme in accordance with its terms
as they had effect before the coming into force of this section.

(6)Where the terms of the subsidy or subsidy scheme provide for changes to the
20original budget, the 25% referred to in subsection (3)(f) is to be calculated by
reference to the financial year in which the permitted modification to that
subsidy or scheme is made.

(7)In this section—

• “legacy subsidy” and “legacy scheme” mean the subsidies and schemes
  25listed in section 48(1);

• “withdrawal agreement subsidy” and “withdrawal agreement scheme”
  mean the subsidies and schemes listed in section 48(3).

82 Gross cash and gross cash equivalent amount of financial assistance

(1)The Secretary of State may by regulations make provision about how the gross
30cash amount, and the gross cash equivalent amount, is to be determined for the
purposes of—

(a)section 33(7);

(b)section 36(4);

(c)section 38(4);

(d)35section 41(2).

(2)Regulations under this section are subject to the negative procedure.

83 Minor amendment to the Financial Services Act 2021

In the Financial Services Act 2021, in Schedule 8 (Gibraltar: minor and
consequential amendments) at the end insert—

40“Subsidy Control Act 2021

20(1)The Subsidy Control Act 2021 is amended as follows.

(2)In section 25 (meaning of “deposit taker”) in subsection (1) omit
paragraph (b) and the “or” preceding it.

(3)In section 26 (meaning of “insurance company) in subsection (1) omit
paragraph (b) and the “or” preceding it.

(4)In section 27 (subsidies for insurers that provide export credit
insurance) in subsection (2), in the definition of “insurer”, omit
5paragraph (b) and the “or” preceding it.”

Chapter 2 General

84 Financial provision

There is to be paid out of money provided by Parliament—

(a)10any expenditure incurred by the Secretary of State in connection with
the establishment and maintenance of the subsidy database, and

(b)any increase attributable to this Act in sums payable under any other
Act out of money so provided as a result of the carrying out of functions
by the CMA under or by virtue of Part 4.

85 15Crown application

(1)This Act, and any provisions made under it, bind the Crown.

(2)The reference to the Crown in subsection (1) does not include—

(a)Her Majesty in Her private capacity,

(b)Her Majesty in right of the Duchy of Lancaster, or

(c)20the Duke of Cornwall.

86 Power to make consequential provision

(1)The Secretary of State may by regulations make provision that is consequential
on this Act.

(2)Regulations under this section may amend, repeal, revoke or otherwise modify
25any provision of primary legislation, retained direct EU legislation or
subordinate legislation.

(3)Regulations under this section are subject to the affirmative procedure if they
amend, repeal or revoke any provision of primary legislation or retained direct
principal EU legislation.

(4)30Regulations under this section to which subsection (3) does not apply are
subject to the negative procedure.

87 Regulations

(1)Any power to make regulations under this Act is exercisable by statutory
instrument.

(2)35Any power to make regulations under this Act includes power—

(a)to make different provision for different purposes;

(b)to make supplementary, incidental, consequential, transitional,
transitory or saving provision.

(3)Where regulations under this Act are subject to “the affirmative procedure”,
the regulations may not be made unless a draft of the statutory instrument
containing them has been laid before, and approved by a resolution of, each
House of Parliament.

(4)5Where regulations under this Act are subject to “the negative procedure”, the
statutory instrument containing them is subject to annulment in pursuance of
a resolution of either House of Parliament.

(5)Any provision that may be made by regulations under this Act subject to the
negative procedure may be made in regulations subject to the affirmative
10procedure.

(6)Any power to make regulations under Part 4 to amend a provision of this Act
may not be exercised after the period of one year beginning with the day on
which the CMA publishes its first report under section 65.

(7)A power to make regulations under this Act is not to be taken as limiting the
15power to make regulations under section 31 of the European Union (Future
Relationship) Act 2020 (general implementation power).

(8)This section does not apply to regulations under section 91.

88 Directions

(1)A direction under this Act must be given in writing.

(2)20A direction under this Act may be varied or revoked by a further direction.

89 Interpretation

(1)In this Act—

• “the CMA” means the Competition and Markets Authority;

• “energy and environment principles” means the principles set out in
  25Schedule 2;

• “enterprise” has the meaning given by section 7;

• “Minister of the Crown” has the same meaning as in the Ministers of the
  Crown Act 1975;

• “Northern Ireland Protocol” means the Protocol on Ireland/Northern
  30Ireland in the EU withdrawal agreement;

• “primary legislation” means—

  (a)

  an Act of Parliament,

  (b)

  an Act of the Scottish Parliament,

  (c)

  an Act or Measure of Senedd Cymru, or

  (d)

  35Northern Ireland legislation;

• “public authority” has the meaning given by section 6(1);

• “special drawing rights” means special drawing rights as defined by the
  International Monetary Fund;

• “SPEI enterprise” and “SPEI services” have the meanings given in section
  4029(9);

• “streamlined subsidy scheme” has the meaning given by section 10(4);

• “subordinate legislation” means an instrument made under primary
  legislation or under retained direct EU legislation;

• “subsidy” has the meaning given by section 2(1);