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Subsidy Control Act 2022

Type Public General Act

Publication 2022-04-28

Last updated 2024-01-01

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(a) it is given in the context of a large cross-border or international cooperation project, and

(b) the public authority giving the subsidy is satisfied that the project meets the condition in subsection (3).

(2) Section 12(3) does not apply to a subsidy scheme if—

(a) the subsidies provided for by the scheme are to be given in the context of a large cross-border or international cooperation project, and

(b) the public authority making the scheme is satisfied that the project meets the condition in subsection (3).

(3) A project meets the condition in this subsection if—

(a) the benefits of the project are not limited to the enterprise or to the sector or the States participating, and

(b) the project has wider benefits and relevance through spillover effects that do not exclusively accrue to—

(i) the United Kingdom,

(ii) the relevant sector, and

(iii) the beneficiary of the subsidy or subsidies concerned.

(4) The projects that may be regarded as large cross-border or international cooperation projects include—

(a) those for transport, energy, the environment or research and development, and

(b) first development projects to incentivise the emergence and deployment of new technologies (excluding manufacturing technologies).

Nuclear energy

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(1) Section 13(1) does not apply to a subsidy in relation to nuclear energy.

(2) Section 13(3) does not apply to a subsidy scheme that provides for subsidies in relation to nuclear energy.

PART 4 — CMA: referrals and functions

CHAPTER 1 — Functions on referrals of subsidies and schemes

Mandatory referrals

Mandatory referral to CMA

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(1) A public authority must request a report from the CMA—

(a) before giving a subsidy, or making a subsidy scheme, of particular interest, or

(b) where directed to do so by the Secretary of State under section 55.

(2) The request must—

(a) include the information in relation to the subsidy or subsidy scheme that would be required under section 34, if the subsidy or scheme were to be given or made,

(b) provide such other information as is specified in regulations under subsection (3)(a),

(c) explain, in the case of a request under subsection (1)(a), why the public authority considers that the subsidy or subsidy scheme would meet the criteria for being a subsidy, or subsidy scheme, of particular interest,

(d) include an assessment by the public authority as to whether the subsidy or scheme would comply with the requirements of Chapters 1 and 2 of Part 2, and the reasons for that conclusion, and

(e) include any evidence relevant to that assessment.

(3) The Secretary of State may by regulations—

(a) specify further information that must be included in a request under this section;

(b) make provision as to the form of a request under this section.

(4) Regulations under subsection (3)(a) and (b) are subject to the negative procedure.

CMA reporting period for mandatory referral

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(1) The CMA must, before the end of five working days beginning with the day on which a request is received under section 52(1), give a notice to the public authority—

(a) that the request complies with the requirements under section 52, or

(b) providing reasons as to why the request does not comply with those requirements.

(2) Where the CMA gives a notice under subsection (1)(a), the CMA must—

(a) before the end of the reporting period, publish a report on the proposed subsidy or subsidy scheme, in such manner as the CMA considers appropriate, and

(b) give a copy of the report to the public authority and the Secretary of State as soon as reasonably practicable after it is published.

(3) Subject to subsections (4) and (6), “reporting period” means the period of 30 working days beginning with the day on which the notice under subsection (1)(a) is given to the public authority.

(4) The reporting period may be extended if an extension is agreed in writing between the CMA and the public authority before the end of the reporting period.

(5) Where the reporting period is extended under subsection (4), the CMA must publish, in such manner as the CMA considers appropriate, a notice stating that the reporting period has been extended and by how much, and the reasons for the extension.

(6) The Secretary of State may direct that the reporting period is extended, in response to a request from the CMA.

(7) A request under subsection (6)—

(a) may only be made if the CMA considers that there are exceptional circumstances to justify an extension,

(b) must include the reasons for seeking an extension, and

(8) A direction under subsection (6)—

(a) may only be given if the Secretary of State is satisfied that there are exceptional circumstances which justify an extension,

(b) may not be given in relation to a subsidy or subsidy scheme given or made by the Secretary of State, and

(c) may not be given so as to provide for an extension which exceeds 40 working days beginning with the day on which the reporting period would otherwise end.

(9) As soon as reasonably practicable after receiving a request under subsection (6), the Secretary of State must—

(a) send a copy of a direction given under that subsection to the CMA and to the public authority, or

(b) give notice to the CMA and the public authority that the request has been rejected and provide reasons for that decision.

(10) Any day falling within the period beginning with the day on which a request is published by the CMA under subsection (7) and ending with the day on which a direction is given under subsection (6), or a notice is given under subsection (9), does not count for the purposes of calculating the reporting period.

(11) The Secretary of State must publish, in such manner as the Secretary of State considers appropriate, a direction given under subsection (6) or a notice given under subsection (9).

(12) The Secretary of State may by regulations amend the periods of time specified in subsections (1) and (3).

(13) Regulations under subsection (12) are subject to the affirmative procedure.

Cooling off period following mandatory referral

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(1) A public authority may not give a subsidy or make a subsidy scheme, in relation to which the CMA has provided a report, before the end of the cooling off period.

(2) “Cooling off period” means the period of five working days beginning with the day after the day on which the CMA publishes the report under section 53(2).

(3) If the CMA does not publish a report before the end of the reporting period, the public authority may give the subsidy or make the subsidy scheme after the day on which the reporting period expires.

(4) The Secretary of State may direct that the cooling off period is extended where the Secretary of State considers that the CMA’s report has identified that there are serious deficiencies in the public authority’s assessment under section 52(2)(d).

(5) The Secretary of State—

(a) must send a copy of a direction given under subsection (4) to the public authority, and

(b) must publish the direction in such manner as the Secretary of State considers appropriate.

(6) The power in subsection (4) may not be exercised so as to provide for an extension which exceeds 30 working days beginning with the day on which the cooling off period would otherwise end under subsection (2).

(7) The Secretary of State may by regulations—

(a) amend the period of time specified in subsection (2);

(b) amend subsection (4) to reflect any changes made to the content of the CMA’s report by regulations made under section 59.

(8) Regulations under subsection (7)(a) or (b) are subject to the affirmative procedure.

Call-in direction

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(1) The Secretary of State may direct a public authority to request a report from the CMA in relation to a proposed subsidy or subsidy scheme.

(2) A direction under this section may be given in relation to—

(a) a subsidy or subsidy scheme of interest, or

(b) any subsidy or subsidy scheme in respect of which the Secretary of State considers—

(i) there is a risk of failure to comply with the requirements of Chapters 1 and 2 of Part 2, or

(ii) there is a risk of negative effects on competition or investment within the United Kingdom.

(3) The Secretary of State—

(a) must send a copy of a direction given under this section to the public authority and to the CMA, and

(b) must publish the direction in such manner as the Secretary of State considers appropriate.

Voluntary referrals

Voluntary referral to CMA

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(1) A public authority may request a report from the CMA before giving a subsidy, or making a subsidy scheme, of interest.

(2) The request must—

(a) include the information in relation to the subsidy or subsidy scheme that would be required under section 34, if the subsidy or scheme were to be given or made,

(b) provide such other information as is specified in regulations under subsection (3)(a),

(c) explain why the public authority considers that the subsidy or subsidy scheme would meet the criteria for being a subsidy, or subsidy scheme, of interest,

(d) include an assessment by the public authority as to whether the subsidy or scheme would comply with the requirements of Chapters 1 and 2 of Part 2, and the reasons for that conclusion, and

(e) include any evidence relevant to that assessment.

(3) The Secretary of State may by regulations—

(a) specify further information that must be included in a request under this section;

(b) make provision as to the form of a request under this section.

(4) Regulations under subsection (3)(a) and (b) are subject to the negative procedure.

CMA reporting period for voluntary referral

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(1) Where the CMA receives from a public authority a request under section 56(1) that complies with the requirements under section 56(2), the CMA must decide whether to prepare a report in response to the request.

(2) The CMA must, before the end of five working days beginning with the day on which a request is received under section 56(1), give notice to the public authority—

(a) that a report will be prepared in response to the request, or

(b) providing reasons as to why the CMA has decided not to prepare a report.

(3) Subject to subsection (4), where the CMA gives a notice under subsection (2)(a), the CMA must—

(a) before the end of the reporting period, publish a report on the proposed subsidy or subsidy scheme, in such manner as the CMA considers appropriate, and

(b) give a copy of the report to the public authority and the Secretary of State as soon as reasonably practicable after it is published.

(4) If the proposed subsidy is given, or scheme is made, before the CMA has prepared or published its report, the CMA may decide whether or not to prepare or publish the report.

(5) Subject to subsection (6), “reporting period” means—

(a) the period of 30 working days beginning with the day on which the notice under subsection (2)(a) is given to the public authority, or

(b) such other period as is agreed in writing between the CMA and the public authority.

(6) The reporting period may be extended if an extension is agreed in writing between the CMA and the public authority before the end of the reporting period.

(7) Where the reporting period is agreed under subsection (5)(b) or extended under subsection (6), the CMA must publish a notice setting out the agreement or extension, and the reasons for it, in such manner as the CMA considers appropriate.

(8) The Secretary of State may by regulations amend the periods of time specified in subsections (2) and (5)(a).

(9) Regulations under subsection (8) are subject to the affirmative procedure.

Call-in direction following voluntary referral

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(1) This section applies where—

(a) the CMA has given a notice under section 57(2)(a) that it will prepare a report in response to a voluntary referral request made in relation to a subsidy or subsidy scheme, and

(b) the Secretary of State has given a call-in direction under section 55 in relation to that subsidy or scheme.

(2) The voluntary referral request is treated as if it was a mandatory referral request (and sections 53 and 54 apply accordingly) where—

(a) the report in response to the voluntary referral request has not been published, and

(b) the reporting period for that report has not expired.

(3) The voluntary referral request is treated as if it was a mandatory referral request (and sections 53 and 54 apply accordingly) where—

(a) the report in response to the voluntary referral request has not been published, and

(b) the reporting period for that report has expired,

but the reporting period under section 53(3) is to be read as a period of 10 working days.

(4) Where the report in response to the voluntary referral request has been published, but the subsidy has not been given, or the subsidy scheme has not been made, section 54 applies, and the references in that section to the CMA’s report are to be read as references to the report published in response to the voluntary referral request.

(5) In this section—

“mandatory referral request” means a request made under section 52;

“voluntary referral request” means a request made under section 56.

Mandatory and voluntary referrals: contents of CMA report

CMA report following mandatory or voluntary referral

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(1) The CMA’s report under section 53 or 57 must include an evaluation of the public authority’s assessment under section 52(2)(d) or 56(2)(d).

(2) The evaluation must take into account any effects of the proposed subsidy or scheme on competition or investment within the United Kingdom.

(3) The report may also include—

(a) advice about how the public authority’s assessment under section 52(2)(d) or 56(2)(d) might be improved, and

(b) advice about how the proposed subsidy or scheme may be modified to ensure compliance with the requirements of Chapters 1 and 2 of Part 2.

(4) The Secretary of State may by regulations—

(a) amend subsection (1), (2) or (3) to make provision about the content of the CMA’s report;

(b) make provision as to the form of the report.

(5) Regulations under subsection (4)(a) are subject to the affirmative procedure.

(6) Regulations under subsection (4)(b) are subject to the negative procedure.

Post-award referrals

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(1) The Secretary of State may refer a subsidy or subsidy scheme to the CMA after the subsidy has been given or the subsidy scheme has been made.

(2) A referral under subsection (1) may be made in relation to any subsidy or subsidy scheme in respect of which the Secretary of State considers—

(a) that there has or may have been a failure to comply with the requirements of Chapters 1 and 2 of Part 2, or

(b) that there is a risk of negative effects on competition or investment within the United Kingdom.

(3) The Secretary of State must, at the same time as making a referral under subsection (1), direct the public authority to provide to the CMA—

(a) any assessment carried out by the public authority, before the subsidy was given or the scheme was made, as to whether the subsidy or scheme would comply with the requirements of Chapters 1 and 2 of Part 2, and the reasons for that conclusion,

(b) any evidence relevant to that assessment,

(d) any information that the public authority failed to enter in the subsidy database in accordance with Chapter 3 of Part 2, and

(e) such other information as is specified in regulations under subsection (8)(a).

(4) Where the Secretary of State decides to make a referral under subsection (1), the referral, together with a direction given under subsection (3), must be made before the end of 20 working days beginning with—

(a) the day on which the entry in respect of the subsidy or scheme is entered into the subsidy database, or

(b) the day on which the subsidy is given or the scheme is made, in the case of a subsidy or scheme to which section 41 applies.

(5) The Secretary of State—

(a) must publish a referral made under subsection (1) in such manner as the Secretary of State considers appropriate, and

(b) must send a copy of a direction given under subsection (3) to the public authority and the CMA.

(6) The public authority must provide to the CMA the information required under subsection (3) before the end of the information period.

(7) “Information period” means the period of 20 working days beginning with the day on which the direction is given.

(8) The Secretary of State may by regulations—

(a) specify further information that must be provided under subsection (3);

(b) prescribe the form in which the information required under subsection (3) is to be provided;

(9) Regulations under subsection (8)(a) or (b) are subject to the negative procedure.

(10) Regulations under subsection (8)(c) are subject to the affirmative procedure.

CMA reporting period for post-award referrals

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(1) Where the CMA receives from the Secretary of State a referral under section 60, the CMA must—

(a) before the end of the reporting period, publish a report on the subsidy or subsidy scheme to which the referral relates, in such manner as the CMA considers appropriate, and

(b) give a copy of the report to the public authority and the Secretary of State as soon as reasonably practicable after it is published.

(2) Subject to subsections (3) and (5), “reporting period” means the period of 30 working days beginning with the earlier of—

(a) the day on which the information required under section 60(3) is provided to the CMA by the public authority, and

(b) the day after the information period in section 60(7) ends.

(3) The reporting period may be extended if an extension is agreed in writing between the CMA and the public authority before the end of the reporting period.

(4) Where the reporting period is extended under subsection (3), the CMA must publish, in such manner as the CMA considers appropriate, a notice that the reporting period has been extended and by how much, and the reasons for the extension.

(5) The Secretary of State may direct that the reporting period is extended, in response to a request from the CMA.

(6) A request under subsection (5)—

(a) may only be made if the CMA considers that there are exceptional circumstances to justify an extension,

(b) must include the reasons for seeking an extension, and

(7) A direction under subsection (5)—

(a) may only be given if the Secretary of State is satisfied that there are exceptional circumstances to justify an extension,

(b) may not be given in relation to a subsidy or subsidy scheme given or made by the Secretary of State, and

(c) may not be given so as to provide for an extension which exceeds 40 working days beginning with the day on which the reporting period would otherwise end.

(8) As soon as reasonably practicable after receiving a request under subsection (5) the Secretary of State must—

(a) send a copy of a direction given under subsection (5) to the CMA and to the public authority, or

(b) give notice to the CMA and the public authority that the request has been rejected and provide reasons for that decision.

(9) Any day falling within the period beginning with the day on which a request is published by the CMA under subsection (6) and ending with the day on which a direction is given under subsection (5), or a notice is given under section (8), does not count for the purposes of calculating the reporting period.

(10) The Secretary of State must publish, in such manner as the Secretary of State considers appropriate, a direction given under subsection (5) or a notice given under subsection (8).

(11) The Secretary of State may by regulations amend the period of time specified in subsection (2).

(12) Regulations under subsection (11) are subject to the affirmative procedure.

CMA report following post-award referral

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(1) The CMA’s report under section 61 must include an evaluation of the public authority’s assessment under section 60(3)(a).

(2) The evaluation must take into account any effects of the proposed subsidy or scheme on competition or investment within the United Kingdom.

(3) If an assessment was not provided under section 60(3)(a), that fact should be stated in the report, along with any reasons provided under section 60(3)(c).

(4) If the subsidy or subsidy scheme is ongoing, the report may also include advice about how the subsidy or scheme may be modified to ensure compliance with the requirements of Chapters 1 and 2 of Part 2.

(5) The Secretary of State may by regulations—

(a) amend subsection (1), (2), (3) or (4) to make provision about the content of the CMA’s report under section 61;

(b) make provision as to the form of that report.

(6) Regulations under subsection (5)(a) are subject to the affirmative procedure.

(7) Regulations under subsection (5)(b) are subject to the negative procedure.

Exemptions

Referrals in relation to subsidy schemes

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The preceding provisions of this Chapter relating to subsidies do not apply to a subsidy given under a subsidy scheme.

Other exemptions

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(1) This Chapter does not apply in relation to subsidies, or subsidy schemes that provide only for the giving of such subsidies, as described in the following sections—

(a) section 10 (streamlined subsidy schemes);

(b) section 36 (minimal financial assistance);

(d) section 43 (natural disasters and other exceptional circumstances);

(e) section 44 (national or global economic emergencies);

(f) section 45 (national security);

(g) section 46 (Bank of England monetary policy);

(h) section 48 (legacy and withdrawal agreement subsidies);

(i) section 49 (tax measures);

(j) section 50 (large cross-border or international cooperation projects).

(2) This Chapter does not apply in relation to a subsidy, or subsidy scheme—

(a) to which a financial stability direction given under section 47 (financial stability) applies, or

(b) which is otherwise given or made by the Treasury or the Bank of England (or by both acting jointly) only for the reasons mentioned in subsection (3) of that section (prudential reasons).

(3) The Secretary of State may direct that sections 52, 53, 54 and 55 (mandatory referral requirements) do not apply, or cease to apply, in relation to a specified subsidy or subsidy scheme.

(4) A direction under subsection (3) may only be given where the Secretary of State is satisfied that there are urgent and exceptional circumstances that justify the direction being given in the public interest.

(5) A direction given under subsection (3) must be laid before Parliament.

(6) The Secretary of State—

(a) must send a direction given under this section to the public authority giving the subsidy or making the subsidy scheme, and

(b) must publish the direction in such manner as the Secretary of State considers appropriate.

CHAPTER 2 — General functions

Monitoring and reporting on subsidy control

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(1) The CMA must, in relation to each relevant period, undertake a review of—

(a) the effectiveness of the operation of this Act, and

(b) the impact of the operation of this Act on competition and investment within the United Kingdom.

(2) The CMA must prepare a report on the outcome of the review in relation to each relevant period.

(3) Subject to subsection (5), “relevant period” means—

(a) the period beginning with the commencement date and ending with 31 March in the third year after the year in which the commencement date falls,

(b) the following period of three years, and

(4) The Secretary of State may direct the CMA to prepare a report in relation to a specified period.

(5) The Secretary of State may exercise the power in subsection (4) only after the CMA has prepared its reports in relation to the first two relevant periods mentioned in subsection (3).

(6) Where the CMA prepares a report in relation to a specified period, “relevant period” means—

(a) the period beginning with the day after the last day of the specified period and ending with the 31 March in the fifth year after the year in which the day after the last day of the specified period falls, and

(b) each subsequent period of five years.

(7) The CMA must publish a report under this section as soon as practicable after the end of the period to which it relates and in such manner as the CMA considers appropriate.

(8) The CMA must arrange for a copy of a report prepared under this section to be laid before Parliament.

(9) In this section, “commencement date” means the day on which this section comes into force.

CMA annual report

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The annual report prepared by the CMA under section 25(4) of, and paragraph 14 of Schedule 4 to, the Enterprise and Regulatory Reform Act 2013 must include details of—

(a) the subsidies, and subsidy schemes, in respect of which the CMA prepared reports following mandatory referrals under section 52,

(b) the subsidies, and subsidy schemes, of interest in respect of which the CMA prepared reports following voluntary referrals under section 56, and

(c) the subsidies and subsidy schemes in respect of which the CMA prepared reports following post-award referrals under section 60.

Information-gathering powers

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(1) Sections 41 to 43 of the United Kingdom Internal Market Act 2020 (which make provision about information-gathering powers, enforcement and penalties) apply for the purpose of assisting the CMA in carrying out any of its functions under section 65 of this Act as they apply for the purpose mentioned in section 41(1) of that Act.

(2) In the application of sections 41 to 43 of that Act by virtue of subsection (1)—

(a) section 42 has effect as if, in subsection (4), after paragraph (e) there were inserted

, or (f) where the penalty is imposed in connection with the exercise of the CMA’s functions under section 65 of the Subsidy Control Act 2022 in relation to the preparation of a report under that section, the day on which the report is published or is laid before Parliament (whichever is the later).

;

(b) section 43 has effect as if, in subsection (10)(b), for “or (e)” there were substituted “, (e) or (f)”.

(3) The Secretary of State may by regulations make such further modifications as the Secretary of State thinks necessary to sections 41 to 43 of the United Kingdom Internal Market Act 2020 in the application of those sections by virtue of subsection (1).

(4) But regulations under subsection (3) may not modify the amounts specified in section 43(6) of that Act.

(5) Regulations under subsection (3) are subject to the negative procedure.

CHAPTER 3 — Subsidy Advice Unit

Subsidy Advice Unit

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(1) The CMA must establish a committee of the CMA Board to be known as the Subsidy Advice Unit.

(2) The CMA Board may authorise the Subsidy Advice Unit under paragraph 29(1) of Schedule 4 to ERRA 2013 to carry out its subsidy control functions (which are exercisable by the CMA Board on behalf of the CMA under paragraph 28 of that Schedule).

(3) A subsidy control function that the Subsidy Advice Unit is authorised to carry out under subsection (2) may, so far as that Unit authorises (whether generally or specifically), be carried out by—

(a) a member or sub-committee of that Unit,

(b) a member of the CMA Board, or

(4) The Subsidy Advice Unit may consist only of persons who are members of the CMA or its staff.

(5) References in this section to the CMA Board are to the Board constituted under Part 2 of Schedule 4 to ERRA 2013.

(6) In this Chapter—

“ERRA 2013” means the Enterprise and Regulatory Reform Act 2013;

“subsidy control functions” means— the functions of the CMA under Chapters 1 and 2, and any other functions that the CMA is required or authorised to carry out under or by virtue of this Act.

References to subsidy control groups

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(1) The Subsidy Advice Unit may make a reference to the CMA chair for the constitution of a CMA group under Schedule 4 to ERRA 2013.

(2) A reference under this section must specify—

(a) the subsidy control functions in respect of which the reference is made (“the referred functions”), and

(b) if the reference is made in respect of a particular subsidy or subsidy scheme, details of that subsidy or subsidy scheme (“the referred case”).

(3) A CMA group constituted for the purposes of a reference under this section must carry out, on behalf of the Subsidy Advice Unit, the referred functions.

(4) Where the reference is made in relation to a referred case, the reference in subsection (3) to the referred functions is a reference to those functions so far as relating to the referred case.

(5) Paragraph 33 of Schedule 4 to ERRA 2013 does not apply in relation to a reference under this section.

(6) In this section “CMA chair” means the person appointed under paragraph 1(1)(a) of Schedule 4 to ERRA 2013.

PART 5 — Enforcement

Appeals to the Competition Appeal Tribunal

Review of subsidy decisions

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(1) An interested party who is aggrieved by the making of a subsidy decision may apply to the Competition Appeal Tribunal for a review of the decision.

(2) Where an application for a review of a subsidy decision relates to a subsidy given under a subsidy scheme, the application must be made for a review of the decision to make the subsidy scheme (and may not be made in respect of a decision to give a subsidy under that scheme).

(3) The means of making an application is by sending the Tribunal a notice of appeal in accordance with Tribunal Procedure Rules.

(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) in 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 is not suspended by reason of the making of an application under this section.

(7) In this Part—

“interested party” means— a person whose interests may be affected by the giving of the subsidy or the making of the subsidy scheme in respect of which the application under subsection (1) is made, or 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;

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

Time limits for applications under section 70

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

(2) In 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 2022 for reviews of subsidy decisions (within the meaning of that section);

(3) After rule 98 insert—

(98A) (1) An 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 the 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 report 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) In 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 scheme 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 of 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 an 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 interested 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 to 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 2022; (b) “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.

CAT powers on review: England and Wales and Northern Ireland

72

(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 of relief—

(a) a mandatory order;

(b) a prohibiting order;

(d) a declaration;

(e) an 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 person 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) is 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) Where 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) that 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 whether 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) For 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

CAT powers on review: Scotland

73

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

Recovery orders

74

(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 scheme, 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 the 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 exercised;

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

(d) where made in relation to subsidies given under a subsidy scheme, relate 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.

Appeals against decisions of the CAT

75

(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) In 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

Duty to provide pre-action information

76

(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) must 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 must 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) within 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,

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

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

Misuse

Misuse of subsidies

77

(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 for 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.

PART 6 — Miscellaneous and general

CHAPTER 1 — Miscellaneous

Subsidies and schemes in primary legislation

78

(1) Schedule 3 applies provisions of this Act in the case of financial assistance provided, or schemes for the provision of financial assistance made, by means of primary legislation.

(2) Nothing in this Act applies to the giving of any such assistance, or to the making of any such schemes, except so far as provided for by that Schedule.

Guidance

79

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

(a) the subsidy control principles;

(b) the energy and environment principles;

(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 whether 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 76 (duty to provide pre-action information);

(g) section 77 (misuse of subsidies);

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

(2) Guidance 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;

(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) The Secretary of State—

(a) must publish guidance issued under this section,

(b) must keep the guidance under review, and

(5) Before issuing guidance under this section, the Secretary of State must consult such 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.

(7) The requirement in subsection (5) may be met by consultation carried out before this section comes into force.

Disclosure of information

80

(1) This 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 into 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 2022.

(4) For 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).

Modifications to subsidies and schemes

81

(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) Subsection (1) does not apply—

(a) for the purposes of section 33(1) and (3) (see instead section 33(5)), or

(b) if the modification is only a permitted modification (but section 33(5) applies to a permitted modification as it applies to other modifications).

(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) a 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) an 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 terminated.

(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) In 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 original 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 listed in section 48(1);

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

Gross cash and gross cash equivalent amount of financial assistance

82

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

(a) section 33(8);

(b) section 36(5);

(d) section 41(2);

(e) provision in regulations or schemes made under this Act.

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

Minor amendment to the Financial Services Act 2021

83

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

(20) (1) The Subsidy Control Act 2022 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 paragraph (b) and the “or” preceding it.

CHAPTER 2 — General

Financial provision

84

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

(a) any 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.

Crown application

85

(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

Power to make consequential provision

86

(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 any provision of primary legislation, assimilated direct 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 ....

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

Regulations

87

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

(2) Any 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) Where 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 procedure.

(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 second report under section 65.

(7) A power to make regulations under this Act is not to be taken as limiting the power 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.

Directions

88

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

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

Interpretation

89

(1) In this Act—

“the CMA” means the Competition and Markets Authority;

“energy and environment principles” means the principles set out in Schedule 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 Ireland in the EU withdrawal agreement;

“primary legislation” means—an Act of Parliament,an Act of the Scottish Parliament,an Act or Measure of Senedd Cymru, orNorthern 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 29(9);

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

“subordinate legislation” means an instrument made under primary legislation or under assimilated direct legislation;

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

“subsidy control principles” means the principles set out in Schedule 1;

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

“subsidy database” means the database of subsidies established under section 32;

“subsidy scheme” has the meaning given by section 10(1);

“subsidy scheme of interest” and “subsidy scheme of particular interest” have the meanings given by section 11;

“the Trade and Cooperation Agreement” and “supplementing agreement” have the same meanings as in the European Union (Future Relationship) Act 2020 (see section 37(1) of that Act);

“working day”, in relation to a part of the United Kingdom, means a day other than—a Saturday or Sunday, ora day which is a bank holiday under the Banking and Financial Dealings Act 1971 in that or any other part of the United Kingdom.

(2) Section 30 of the European Union (Future Relationship) Act 2020 (interpretation of agreements: public international law) applies where a court or tribunal has regard to the Trade and Cooperation Agreement or a supplementing agreement for the purposes of interpreting a provision of this Act.

Extent

90

(1) Subject to subsection (2), this Act extends to England and Wales, Scotland and Northern Ireland.

(2) Section 48(4) extends to England and Wales and Scotland only.

Commencement

91

(1) The following come into force on the day on which this Act is passed—

(a) Part 1;

(b) any power to make regulations under Part 2, 3 or 4 or Chapter 1 of this Part;

(2) The rest of this Act comes into force on such day as the Secretary of State may by regulations appoint.

(3) Different days may be appointed for different purposes.

(4) The Secretary of State may by regulations make transitional or saving provision in connection with the coming into force of any provision of this Act.

(5) The power to make regulations under subsection (4) includes power to make different provision for different purposes.

(6) Regulations under this section are to be made by statutory instrument.

Short title

92

This Act may be cited as the Subsidy Control Act 2022.

SCHEDULE 1

Common interest

A

Subsidies should pursue a specific policy objective in order to—

(a) remedy an identified market failure, or

(b) address an equity rationale (such as local or regional disadvantage, social difficulties or distributional concerns).

Proportionate and necessary

B

Subsidies should be proportionate to their specific policy objective and limited to what is necessary to achieve it.

Design to change economic behaviour of beneficiary

C

(1) Subsidies should be designed to bring about a change of economic behaviour of the beneficiary.

(2) That change, in relation to a subsidy, should be—

(a) conducive to achieving its specific policy objective, and

(b) something that would not happen without the subsidy.

Costs that would be funded anyway

D

Subsidies should not normally compensate for the costs the beneficiary would have funded in the absence of any subsidy.

Least distortive means of achieving policy objective

E

Subsidies should be an appropriate policy instrument for achieving their specific policy objective and that objective cannot be achieved through other, less distortive, means.

Competition and investment within the United Kingdom

F

Subsidies should be designed to achieve their specific policy objective while minimising any negative effects on competition or investment within the United Kingdom.

Beneficial effects to outweigh negative effects

G

Subsidies’ beneficial effects (in terms of achieving their specific policy objective) should outweigh any negative effects, including in particular negative effects on—

(a) competition or investment within the United Kingdom;

(b) international trade or investment.

SCHEDULE 2

Aim of subsidies in relation to energy and environment

A

Subsidies in relation to energy and environment shall be aimed at and incentivise the beneficiary in—

(a) delivering a secure, affordable and sustainable energy system and a well-functioning and competitive energy market, or

(b) increasing the level of environmental protection compared to the level that would be achieved in the absence of the subsidy.

Subsidies not to relieve beneficiary from liabilities as a polluter

B

Subsidies in relation to energy and environment shall not relieve the beneficiary from liabilities arising from its responsibilities as a polluter under the law of England and Wales, Scotland or Northern Ireland.

Subsidies for electricity generation adequacy, renewable energy or cogeneration

C

(1) Subsidies for electricity generation adequacy, renewable energy or cogeneration—

(a) shall not undermine the ability of the United Kingdom to meet its obligations under Article 304 of the Trade and Cooperation Agreement (provisions relating to wholesale electricity and gas markets),

(b) shall not unnecessarily affect the efficient use of electricity interconnectors provided for under Article 311 of the Trade and Cooperation Agreement (efficient use of electricity interconnectors), and

(2) But a non-competitive process may be used to determine a subsidy for renewable energy or cogeneration if appropriate measures are put in place to prevent overcompensation and—

(a) the potential market supply is insufficient to ensure a competitive process,

(b) the eligible capacity is unlikely to have a material effect on any of the following—

(i) competition or investment within the United Kingdom,

(ii) trade between the United Kingdom and any country or territory outside the United Kingdom, and

(iii) investment as between the United Kingdom and any country or territory outside the United Kingdom, or

(3) Sub-paragraph (1)(c) is without prejudice to Article 304(3) of the Trade and Co-operation Agreement (capacity mechanisms in electricity markets).

(4) In this paragraph and paragraph D, “subsidy for electricity generation adequacy” means a subsidy that provides an incentive for a capacity provider to be available in times of expected system stress.

D

Subsidies for electricity generation adequacy may be limited to installations not exceeding specified CO2 emission limits.

E

Subsidies for renewable energy or cogeneration shall not affect beneficiaries’ obligations or opportunities to participate in electricity markets.

F

(1) Subsidies in the form of partial exemptions from energy-related taxes and levies in favour of energy-intensive users shall not exceed the total amount of the tax or levy concerned.

(2) “Levy” does not include network charges.

Subsidies in the form of compensation for increases in electricity costs

G

Subsidies in the form of compensation for electricity-intensive users given in the event of an increase in electricity costs resulting from climate policy instruments shall be restricted to sectors at significant risk of carbon leakage due to the cost increase.

Subsidies for the decarbonisation of emissions linked to industrial activities

H

Subsidies for the decarbonisation of emissions linked to industrial activities in the United Kingdom shall—

(a) achieve an overall reduction in greenhouse gas emissions, and

(b) reduce the emissions directly resulting from the industrial activities.

Subsidies for improvements of the energy efficiency of industrial activities

I

Subsidies for improvements of the energy efficiency of industrial activities in the United Kingdom shall improve energy efficiency by reducing energy consumption, either directly or per unit of production.

SCHEDULE 3

Introductory

1

This Schedule provides for the application of this Act in the case of subsidies provided by means of primary legislation.

2

(1) In this Schedule—

“appropriate authority” means—in relation to a subsidy provided by means of an Act of Parliament, a Minister of the Crown or the Commissioners for Her Majesty’s Revenue and Customs;in relation to a subsidy provided by means of an Act of the Scottish Parliament, the Scottish Ministers;in relation to a subsidy provided by means of an Act or Measure of Senedd Cymru, the Welsh Ministers;in relation to a subsidy provided by means of an Act of the Northern Ireland Assembly, the appropriate Northern Ireland department;

“appropriate court” means—in relation to a subsidy provided by means of an Act of the Scottish Parliament, the Court of Session;in relation to a subsidy provided by means of an Act or Measure of Senedd Cymru, the High Court in England and Wales;in relation to a subsidy provided by means of an Act of the Northern Ireland Assembly, the High Court in Northern Ireland;

“devolved legislature”, in relation to devolved primary legislation, means—the Scottish Parliament, in the case of an Act of that Parliament;Senedd Cymru, in the case of an Act or Measure of Senedd Cymru;the Northern Ireland Assembly, in the case of an Act of that Assembly;

“devolved primary legislation” means primary legislation that is not an Act of Parliament;

“promoter”, in relation to a Bill introduced in Parliament, means (subject to sub-paragraph (2)) the member of Parliament in charge of the Bill;

“promoter”, in relation to proposed devolved primary legislation, means (subject to sub-paragraph (2))—in the case of a Bill introduced in the Scottish Parliament—the Scottish Ministers, orwhere the member of the Scottish Parliament in charge of the Bill is not a member of the Scottish Government, that member of the Parliament;in the case of a Bill or proposed Assembly Measure introduced in Senedd Cymru—the Welsh Ministers, orwhere the member of the Senedd in charge of the Bill or Measure is not a member of the Welsh Government, that member of the Senedd;in the case of a Bill introduced in the Northern Ireland Assembly, the member of the Assembly in charge of the Bill;

“proposed devolved primary legislation” means—in the case of devolved primary legislation of the Scottish Parliament, a Bill for an Act of that Parliament;in the case of devolved primary legislation of Senedd Cymru, a Bill for an Act of the Senedd or, in the case of a proposed Assembly Measure, a Measure of the Senedd;in the case of devolved primary legislation of the Northern Ireland Assembly, a Bill for an Act of that Assembly;

“proposed primary legislation” means—a Bill introduced in Parliament or proposed devolved primary legislation, ora proposal to introduce any such Bill or proposed devolved primary legislation;

“subsidy proceedings” means proceedings before the appropriate court in connection with this Act in relation to a subsidy provided by means of devolved primary legislation.

(2) Where a subsidy provided by means of primary legislation resulted from an amendment to the proposed primary legislation concerned, the “promoter” of the proposed primary legislation for the purposes of this Schedule, so far as relating to that subsidy, is the member who tabled or lodged the amendment.

3

(1) The definition of “subsidy” in section 2 applies for the purposes of this Schedule (so far as the context requires) as if the reference in subsection (1)(a) of that section to financial assistance given by a public authority were a reference to financial assistance provided by means of primary legislation.

(2) Section 4 applies for the purposes of this Schedule as if—

(a) the reference in subsection (4) of that section to financial assistance given by a public authority were a reference to financial assistance provided by means of primary legislation, and

(b) the reference in subsection (5)(c) of that section to the public authority whose normal taxation regime it is were a reference to the legislature concerned.

(3) The definition of “subsidy scheme” in section 10 applies for the purposes of this Schedule as if the reference in subsection (1) of that section to a scheme made by a public authority were a reference to a scheme made by primary legislation.

4

In this Schedule references to a subsidy provided by means of primary legislation—

(a) include references to a subsidy given by a public authority under a duty imposed by that legislation;

(b) do not include references to a subsidy given by a public authority under a power conferred by that legislation (but see section 1(7)).

5

In this Schedule—

(a) references to a subsidy provided by means of primary legislation include references to a subsidy scheme made by that legislation;

(b) references to a subsidy given by a public authority include references to a subsidy scheme made by the authority.

Application of principles

6

(1) Chapter 1 of Part 2 (application of principles) applies to subsidies provided by means of devolved primary legislation as it applies to subsidies given by public authorities.

(2) For this purpose—

(a) references in that Chapter to a public authority are to be taken as references to the devolved legislature in relation to the devolved primary legislation concerned;

(b) in subsidy proceedings before the appropriate court in connection with this paragraph, the requirements imposed by that Chapter on public authorities to consider and form a view are to be assessed by reference to the considerations and views of the promoter of the proposed devolved primary legislation.

Prohibitions etc and exemptions

7

(1) Chapter 2 of Part 2 (prohibitions and other requirements), and Part 3 (exemptions), applies to subsidies provided by means of devolved primary legislation as they apply to subsidies given by public authorities.

(2) For this purpose—

(a) references in Chapter 2 of Part 2, and in Part 3, to a public authority are to be taken as references to the devolved legislature in relation to the devolved primary legislation concerned;

(b) in subsidy proceedings before the appropriate court in connection with this paragraph, the requirements imposed by Chapter 2 of Part 2 on public authorities to be satisfied of any matter are to be assessed by reference to the promoter of the proposed devolved primary legislation;

(4) The condition in this subsection is that there has been, or there is a reasonable expectation that there will be, proper remuneration for the subsidy.

;

(d) section 29 applies as if, for subsection (6), there were substituted—

(6) Where a subsidy is given to a SPEI enterprise by means of devolved primary legislation, there must be arrangements in place for— (a) regular reviews to take place as to the use of the subsidy to ensure the condition that the amount of the subsidy is limited to what is necessary to deliver the SPEI services continues to be met, and (b) the taking of steps to recover a subsidy to the extent that the condition ceases to be met.

;

(e) sections 37 and 39 are to be ignored.

Transparency

8

(1) Chapter 3 of Part 2 (which provides for the subsidy database) applies to subsidies provided by means of primary legislation as it applies to subsidies given by public authorities.

(2) For this purpose—

(a) references in that Chapter to a public authority are to be taken as references to the appropriate authority;

(b) the references in section 33 to a subsidy given, or a subsidy scheme made, by the authority are to be taken as references to a subsidy or scheme provided by means of primary legislation.

CMA referrals

9

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