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Subsidy Control Reviews: What Can I Challenge And Where Do I Issue?

 |  July 14, 2023

By: Tom Coates (Competition Bulletin)

Continuing the unintentional mini-series, this blog focuses once again on subsidy control reviews governed by section 70 of the Subsidy Control Act 2022 (SCA) (refer to previous posts here and here). This particular post addresses some peculiar aspects of section 70 that present challenging threshold questions for appellants, such as determining what to challenge and where to initiate proceedings.

Sections 70(1)-(2) stipulate the following:

“(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).”

Hence, it is only possible to challenge a subsidy decision or, in cases where such a decision is made under a subsidy scheme, challenge the scheme itself. These provisions give rise to several questions…