On 27 July, the Competition Appeal Tribunal handed down judgment in The Durham Company Limited v Durham County Council.
The Claimant’s case was in essence that the Council was subsidising its commercial waste operation (for which the Council was obliged by law to charge) by allowing it to use at an undervalue the equipment and infrastructure owned by the Council for the purpose of collecting domestic waste (a legal obligation on the Council, for which it could make no charge.)
The CAT dismissed that claim. It held – in distinction to State aid law – that the definition of “subsidy” in the 2022 Act covered only transfers of resources from a public authority to another legal person: it did not cover “transfers” to another part of the same person considered to be a functionally separate “undertaking”. Further, even if that was wrong, the putative transfer conferred no economic advantage on the recipient: if it passed on the “benefit” to customers, then they received the advantage, and if it did not the the recipient itself could not itself retain any “benefit”.
The CAT further held (in this respect agreeing with the Claimant) that the relevant decision on the use of resources took place in 2023 and would therefore have been subject to the 2022 Act had it been a subsidy decision.