The Durham Company Ltd (trading as Max Recycle) v Durham County Council
| Jurisdiction | England & Wales |
| Year | 2023 |
| Court | Competition Appeal Tribunal |
2023 July 3, 4; 27
Competition - Public authority - Subsidy - Council having statutory duty to collect household waste free of charge but obliged to charge for collection of commercial waste - Council’s use of same staff and vehicles for both household and commercial waste allowing council to charge businesses less than if commercial waste collected separately - Whether provision of service below market cost constituting “subsidy” - Whether council’s annual decision as to charges payable by businesses constituting “subsidy decision” amenable to review -
The county council, as the waste disposal authority, was responsible for arranging the collection of household waste in its area, a service it generally had to provide free, and the collection of commercial waste, a service for which it was obliged to charge. The council used the same vehicles and employees to collect both types of waste and recovered a proportion of the common costs based on an estimate of how much of the total was commercial waste. Charges payable by businesses were reviewed annually, but the council’s underlying approach to charging remained the same each year. The applicant, a private waste collection company that competed with the council for the provision of waste management services, applied pursuant to section 70(1) of the Subsidy Control Act 2022F1 for a review of the council’s most recent annual charge rate decision. It contended that (1) the costs savings that resulted from dealing with household and commercial waste together enabled the council to charge businesses less than it would charge if the commercial waste collection operation were undertaken separately and (2) the provision of services to the council’s waste collection operation at below market cost was a “subsidy” within the meaning of section 2 of the 2022 Act that could not be made without a consideration of the subsidy control principles. The council contended that (1) it had not given a “subsidy” within the meaning of section 2(1) of the 2022 Act, and (2) its annual charge rate decision was not a “subsidy decision” amenable to review under section 70(1).
On the application—
Held, refusing the application, that the very essence of a subsidy, as defined in section 2 of the Subsidy Control Act 2022, was that it moved from one person (the public authority) to another person (the enterprise); that, therefore, on a natural reading of the 2022 Act, a person designated a public authority could not also be an enterprise in relation to the advantage under consideration; that in the present case it was not possible to identify any person other than the council implicated in the provision of waste collection or disposal services; and that, accordingly, the giver of the economic advantage being the same person on whom the advantage was conferred, there was no “subsidy” within the meaning of the 2022 Act (post, paras 28–31, 39, 44, 45, 48, 52).
Per curiam. A “decision” within the meaning of the 2022 Act can be detailed and long, considering all manner of factors and facts, or, in the case of repeat decisions, where matters have previously been considered and the circumstances not materially changed, short and bereft of analysis and consideration. Such short repeat decisions are entirely appropriate in circumstances where the original, detailed, analysis still pertains (post, para 49).
The following cases are referred to in the judgment:
ABSL Go4circle v Brussels-Capital Region and Bruxelles-Propert (unreported) 18 May 2018,
Höfner v Macroton GmbH
Hydrotherm Gerätebau GmbH v Compact de Dott Ing Mario Andreoli & C Sas
Pavlov v Stichting Pensioenfonds Medische Specialisten
R (Attfield) v Barnet London Borough Council
R (Durham Company (trading as Max Recycle)) v Revenue and Customs Comrs
R (Western Riverside Waste Authority) v Wandsworth London Borough Council
Sainsbury’s Supermarkets Ltd v Mastercard Inc
The following additional cases were cited in argument or referred to in the skeleton arguments:
Altmark Trans GmbH v Nahverkehrsgesellschaft Altmark GmbH
BetterCare Group Ltd v Director General of Fair Trading
Bretagne Angleterre Irlande v Commission of the European Communities
Chambre Syndicale Nationale des Entreprises de Transport de Fonds et Valeurs (Sytraval) v Commission of the European Communities
Chronopost SA v Union Francaise de l’Express
Durham Co Ltd (trading as Max Recycle) v Durham County Council
European Commission v Kingdom of the Netherlands
European Commission v MOL Magyar Olaj- és Gázipari Nyrt
Germany v European Commission
Henry (trading as SBC TV) v Office of Communications
Inclusion Housing Community Interest Co v Regulator of Social Housing
Kingdom of Belgium v Commission of the European Communities
Kingdom of Spain v European Commission
Luby v Newcastle-under-Lyme Corpn [
R v Lambert
R (F) v Surrey County Council
R (Peters) v Haringey London Borough Council
R (Sky Blue Sports & Leisure Ltd) v Coventry City Council (No 2)
Syndicat français de l’Express international v La Poste
APPLICATION
By an amended appellant’s notice dated 15 May 2023 the applicant, The Durham Company Ltd (trading as Max Recycle), applied pursuant to section 70 of the Subsidy Control Act 2022 for a review of a decision made by Durham County Council on 31 March 2023 in its capacity as a waste management authority to change the charge it levied for commercial waste collection. The applicant submitted that the decision constituted a subsidy decision for the purposes of the 2022 Act, and that, contrary to its duties under section 12 of the 2022 Act, the council had failed to consider the subsidy control principles before making that decision. By directions made on 17 February 2023, issues to be determined at a final hearing were confined to (1) whether the decision under review was capable in law of amounting to a “decision” within the meaning of section 70 of the 2022 Act, (2) whether the decision under review constituted a “subsidy” within the meaning of section 70 of the 2022 Act and (3) whether the subsidy control principles, to which section 12 of the 2022 Act referred, were satisfied.
Michael Bowsher KC and Ligia Osepciu (instructed by
Aidan Robertson KC and Richard Howell (instructed by
The tribunal took time for consideration.
27 July 2023. SIR MARCUS SMITH (President), DAVID ULPH and LORD YOUNG KC delivered the following judgment.
A. The Subsidy Control Act 2022: An overview1 This is the first application for the review of a subsidy decision under section 70 of the Subsidy Control Act 2022. It is, therefore, appropriate to set out the broad outlines of the regime under the 2022 Act before proceeding to the facts of this particular application.
2 Section 12 of the 2022 Act provides that:
“(1) A public authority— (a) must consider the subsidy control principles before deciding to give a subsidy, and (b) must not give the subsidy unless it is of the view that the subsidy is consistent with those principles.
“(2) In subsection (1) ‘subsidy’ does not include a subsidy given under a subsidy scheme.
“(3) A public authority— (a) must consider the subsidy control principles before making a subsidy scheme, and (b) must not make the scheme unless it is of the view that the subsidies provided for by the scheme will be consistent with those principles.”
3 Section 70 of the 2022 Act provides for the review of subsidy decisions. Section 70(1) states: “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.”Section 70(2) deals with the review of subsidy schemes, and provides:
“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).”
4 The review is conducted according to the same principles as would be applied (in the case of proceedings in England and Wales or Northern Ireland) by the High Court in determining proceedings on judicial review: see section 70(5)(a) of the 2022 Act.
5 A “subsidy decision” means a decision to give a subsidy or make a subsidy scheme
(1) A “subsidy” is defined in section 2 as...
To continue reading
Request your trial