Aubrey Weis v Greater Manchester Combined Authority

On an application under the Subsidy Control Act 2022, the Competition Appeal Tribunal must first decide for itself whether the challenged decision is a subsidy decision. That includes deciding whether the commercial market operator principle is satisfied. The question is objective, even though reasonable decision-makers may reach different conclusions within a permissible range. Judicial review principles govern the lawfulness of the subsidy decision after that threshold question has been resolved. Where there is a real possibility that financial assistance is a subsidy, the public authority must have regard to relevant statutory guidance. A failure to do so cannot generate relief where the Tribunal correctly finds that no subsidy was given.

The appellant challenged two loans made by the Greater Manchester Combined Authority to development companies controlled by the Renaker group. He alleged that the loans were subsidies under the Subsidy Control Act 2022, principally because their terms were more favourable than market terms.

The Competition Appeal Tribunal dismissed the application in [2025] CAT 41. It considered both the GMCA’s decision-making process and the substantive question whether the loans complied with the commercial market operator principle. The appeal concerned whether the Tribunal was confined to judicial review of the GMCA’s process, or could determine for itself whether the loans constituted subsidies, including by considering material produced after the GMCA’s decision.

Lord Justice Zacaroli gave the judgment of the court. Lord Justices Miles and Nugee agreed. The appeal was dismissed.

1. Under sections 70(1) and 70(7) of the Subsidy Control Act 2022, the CAT had to determine for itself whether the challenged decision was a subsidy decision. It therefore had to decide whether all relevant statutory criteria were satisfied, including whether the loans conferred an economic advantage under section 3(2). That prior question was objective and did not involve the policy judgments entrusted to the public authority.
2. Section 70(5), requiring the CAT to apply judicial review principles, governed review of the lawfulness of a subsidy decision once that threshold had been met. Even on the appellant’s alternative analysis, the Tribunal had to determine whether the conclusion fell within the range of outcomes reasonably open to a decision-maker. Intervention was required only where no rational decision-maker could have reached it. The court explained the relevance of R v Monopolies and Mergers Commission ex parte South Yorkshire Transport Ltd [1993] 1 WLR 23 and followed the approach in R (British Gas Trading and others) v Secretary of State for Energy and Security [2025] EWCA Civ 209.
3. Where there was a real possibility that financial assistance might be a subsidy, the GMCA ought to have had regard to the relevant guidance issued under section 79. Its failure to do so did not entitle the CAT to grant relief because the CAT had correctly found that the loans were not subsidies. Any separate challenge based on failure to follow the GMCA’s own policies would be an ordinary judicial review claim outside the CAT’s jurisdiction.
4. The CAT had misread the RR Communication in treating the minimum 400-basis-point increase for certain special-purpose or start-up companies as potentially reducible by reference to collateral. The words permitted flexibility only in the amount added above 400 basis points. The court did not decide whether the borrowers fell within that part of the Communication, and the point had no consequence for this appeal.
5. The GMCA’s reliance on Mr Whitaker’s financial position did not correctly assess the creditworthiness of the SPVs under the RR Communication, absent a guarantee or other recourse. Nevertheless, the wider financial position, equity contribution, repayment history and security could be considered in assessing whether the loans were commercially available. The remaining grounds either fell away or amounted only to disagreement with the CAT’s evaluation of the evidence. The appeal was dismissed.

• Court of Appeal (Civil Division): dismissed the appeal from the CAT’s judgment.
• Competition Appeal Tribunal: dismissed the appellant’s application for review in [2025] CAT 41.