Court of Appeal to define what an authority must consider before granting public funding

Since the UK’s subsidy control regime came into force on 4 January 2023, only seven challenges to awards of financial assistance by a UK public authority have been brought before the Competition Appeal Tribunal (CAT). None of these challenges has been successful so far, and only one is currently being appealed to the Court of Appeal.

As a result of the scarcity of judicial oversight, compared with the EU state aid regime, there is a lack of guidance for both public authorities and challengers on how key aspects of the subsidy control regime operate.

Given that the UK regime generally relies on self-assessment by public authorities, rather than a notification system as in the EU, this leaves authorities who may want to grant financial assistance to enterprises in a potentially vulnerable position.

The case brought by Aubrey Weis against the Greater Manchester Combined Authority (GMCA), heard on 9 and 10 June 2026, is therefore a significant step in determining both the adequacy of the CAT’s review of the case at first instance and also in setting out the information that must be taken into account by a public authority and at what stage of its decision-making process in granting public funding to a private enterprise.

What this means for public sector funding

Regeneration funding may take various forms. The key question in the case brought by Aubrey Weis against the GMCA is what analysis a public authority must undertake before agreeing to provide public funding for regeneration, and at what stage of the decision-making process, to determine whether it involves a subsidy.

The legislation – the Subsidy Control Act 2022 – makes clear that an authority must (a) consider the subsidy control principles before deciding to give a subsidy, and (b) not give the subsidy unless it is of the view that the subsidy is consistent with those principles. Aubrey Weis’s position is that a public authority cannot satisfy this requirement if it did not give any consideration, at the time the decision to make the grant was taken, as to whether or not the funding it provided was a “subsidy” even before it then purported to justify the grant of funding under the commercial market operator (CMO) principles.

The appeal is centred around the errors the claimant alleges were made by the CAT in its review of the original claim, by failing to judicially review to the requisite standard, if at all, the GMCA’s decision (as provided for in section 70 of the Subsidy Control Act 2022) and, as a result, erred in finding that the GMCA had not failed to have regard to relevant considerations required under the Subsidy Control Act 2022 and accompanying statutory guidance.

If the appeal is successful, authorities will be well advised to gather clear evidence before agreeing to provide any kind of support to, or to enter any transaction with, a third-party commercial operator as to whether this may involve the grant of a subsidy. In some cases (e.g. the award of grant funding), this will be obvious.

In other cases, such as a loan, an equity investment or the sale/purchase of land or other goods or services, the analysis will often be more complex. If they take the view that financial assistance does not involve a subsidy, then any evidence to that effect should be clearly documented and the decision-making process recorded in detail, for example, because the support is given in line with the CMO principles or otherwise. Authorities that do not do this will place themselves at greater risk of challenge.

Implications for future challenges 

To date, there has not been a successful challenge under the Subsidy Control Act 2022 to an award of public funding to private operators.

This is something that the European Commission (EC) raised concerns about in its response to the WTO Trade Policy Review in late October 2025. The EC argued that, without an independent body empowered to enforce the subsidy control regime in the UK (as the EC can do under the state aid regime in the EU), the lack of any material challenges to the award of subsidies, which should be keeping public authorities in check, undermines the effectiveness of the regime itself.

Without this independent arbiter, the enforcement of the Subsidy Control Act remains reliant on any interested party who considers themselves negatively impacted by a subsidy control decision to appeal to the CAT, with the associated risk of significant legal fees and adverse cost orders for claimants.

If the Court of Appeal decides in favour of Aubrey Weiss in the coming months, further challenges may be on the horizon, particularly from competitors of  recipients of any public funding award, but any judgment by the Court of Appeal in this area will hopefully also provide additional and welcome clarity for public authorities in what is required of them when making their subsidy decisions in future.

Liz Turner is a director in the competition team at Walker Morris