Competition Appeal Tribunal dismisses subsidy challenge to electricity storage cap and floor scheme

The Competition Appeal Tribunal (the CAT) has dismissed claims brought under the Subsidy Control Act 2022 and on vires grounds to the Gas and Electricity Market Authority’s (GEMA) long duration electricity storage cap and floor scheme: Zenobe Limited v GEMA [2026] CAT 53.

Following the final oral hearing before the CAT, Zenobe also withdrew a related claim for judicial review raising further wide-ranging public law grounds of challenge, which was listed to be determined at a rolled-up hearing in July 2026.

The CAT’s judgment provides important analysis on:

• when there is (or is not) a challengeable “subsidy decision” under the Act;
• the application of the exemption provisions under the Act;
• the circumstances in which a subsequent decision “adopting” a public authority’s allegedly unlawful earlier decisions/acts will render a claim for judicial review academic;
• and the nature and scope of the CAT’s judicial review jurisdiction relating to non-subsidy control grounds of claim.

Barney McCay acted for GEMA, led by Joseph Barrett KC and Rupert Paines of 11KBW. He was instructed by Andrew Jones, Victoria Barkas, Michael Knight and Rory O’Donovan of GEMA.