Automated Summary
Key Facts
On 22 October 2025, Zenobē Energy Limited applied to the Competition Appeal Tribunal under s.70 of the Subsidy Control Act 2022, challenging a subsidy scheme (the Alleged Scheme) created by GEMA in September 2025 for LDES projects. Four parties sought to intervene: Gresham House Energy Storage Holdings (GHES), the Secretary of State for Energy Security and Net Zero (SoS), NatPower, and the British Hydropower Association (BHA). At a Case Management Hearing on 28 January 2026, the Tribunal refused all four intervention requests. The core dispute concerns whether the Alleged Scheme qualifies as a subsidy scheme under s.10 of the 2022 Act and whether relief should be withheld under s.72(8). GEMA contends the scheme is not a subsidy scheme as it lacks binding criteria and does not involve financial assistance from public resources.
Issues
- If the Alleged Scheme qualifies as a subsidy scheme, the Tribunal must assess whether section 10P of the 1989 Act (inserted by Planning and Infrastructure Act 2025) impacts its validity, given that this provision was not in force when the scheme was made.
- The Tribunal must consider whether to grant relief under section 72(8) of the 2022 Act, examining if granting relief would cause substantial hardship, prejudice rights, or harm good administration, particularly given 73 projects are at the assessment stage.
- The Tribunal must determine if the Alleged Scheme, a cap and floor support scheme for LDES projects, satisfies the definition of a subsidy scheme under section 10 of the Subsidy Control Act 2022, specifically regarding binding criteria and financial assistance from public resources.
Holdings
The Competition Appeal Tribunal refused all intervention requests from GHES (Gresham House Energy Storage Holdings Limited), the Secretary of State for Energy Security and Net Zero, NatPower, and BHA (British Hydropower Association) in proceedings challenging the Alleged Scheme under the Subsidy Control Act 2022. The Tribunal accepted that GHES and the SoS had sufficient interest but refused their applications as they would not add material value to the proceedings. NatPower and BHA were refused because their applications were out of time and the Tribunal was not satisfied to extend the application deadline.
Legal Principles
- The Tribunal applied the two-stage intervention test from Rule 16 of the Tribunal Rules: first determining whether the proposed intervener has a 'sufficient interest' in the outcome, then exercising discretion on whether to permit intervention based on Rule 4 governing principles (justly, proportionate cost, added value). The Tribunal refused all intervention requests, holding that while some parties had sufficient interest, their participation would not add material value to the determination and would unnecessarily expand the scope and complexity of the proceedings.
- The case involved challenges under Section 70 of the Subsidy Control Act 2022, alleging the Alleged Scheme constituted an unlawful subsidy scheme. The Tribunal addressed whether the Scheme satisfied Section 10's definition (binding criteria, defined parameters and conditions) and Section 2's definition (financial assistance from public resources). GEMA relied on Section 72(8) of the 2022 Act to argue relief should be refused due to substantial hardship to 73 projects at the assessment stage and detriment to good administration and UK climate commitments. The Tribunal also considered Section 26 of the Planning and Infrastructure Act 2025 (inserting s.10P into the Electricity Act 1989) regarding GEMA's statutory duty to establish the Scheme.
Precedent Name
- Justin Gutmann v Govia Thameslink Railway Limited and Ors
- Durham Company Ltd v. Durham County Council
- Durham Co Ltd (t/a Max Recycle) v Durham County Council
- Sabre Corp v CMA
Cited Statute
- Electricity Act 1989
- Competition Appeal Tribunal Rules 2015
- Planning and Infrastructure Act 2025
- Subsidy Control Act 2022
Judge Name
James Wolffe KC
Passage Text
- 13. Rule 16 of the Tribunal Rules provides, among other things, as follows: "(1) Any person with sufficient interest in the outcome may make a request to the Tribunal for permission to intervene in the proceedings. (2) The request shall be filed within the period specified in rule 14(3)(f)." 14. The "period specified in rule 14(3)(f)" is "within three weeks of publication of the summary or within any other period the President may specify".
- 15. The effect of r. 16 was summarised by Roth J in Justin Gutmann v Govia Thameslink Railway Limited and Ors [2023] CAT 23 ("Gutmann") at [7]: "... the rule involves a two stage process. There is, first, the threshold question whether the applicant has shown a 'sufficient interest' in the outcome of the proceedings; if that is satisfied, it is then a question of discretion for the Tribunal as to whether to permit an intervention, having regard to the governing principles set out in rule 4. The Tribunal reiterated this approach in Sabre Corp v CMA [2020] CAT 16 at [8]." 16. The Tribunal must accordingly determine first whether the proposed intervener has a sufficient interest in the outcome of the proceedings. If the proposed intervener does have sufficient interest, the Tribunal must then go on to determine whether to permit the intervention as an exercise of its discretion. In doing so, the Tribunal must have regard to the governing principles set out in r. 4.
- 54. For the reasons set out above, I refuse the Intervention Requests. 37. I accept that the SoS has a sufficient interest in the proceedings. He instructed the development of the Alleged Scheme and promoted section 26 of the PIA, with a view to advancing and meeting the UK Government's energy and climate policy objectives. However, I refuse the application. I do so for the following reasons. 38. First, I am not persuaded that anything would be added by allowing legal submissions by the SoS on section 25 of the PIA. GEMA is well able to advance those submissions. There is no reason why GEMA could not identify and provide to the Tribunal any relevant explanatory materials.