In a judgment handed down on 23 June 2026, the Competition Appeal Tribunal (the Honourable Mrs Justice Bacon, James Wolffe KC, and John Davies) dismissed applications by Zenobē Energy Limited for review of two decisions made by the Gas and Electricity Markets Authority (GEMA) in September 2025 and February 2026. Those decisions concerned the design and establishment of a cap and floor (C&F) support scheme (the Scheme) in respect of long duration electricity storage (LDES) installations.
Zenobē, one of the largest providers of lithium-ion battery energy storage systems and the largest on the transmission network in Great Britain, argued that GEMA’s two decisions were decisions to make a subsidy scheme under the Subsidy Control Act 2022 and GEMA had not taken the steps necessary to comply with the relevant requirements under that 2022 Act. In its defence, GEMA admitted that it had not taken those steps, but argued it was not required to do so because (i) LDES C&F support was not ‘granted directly or indirectly from public resources’, so not a ‘subsidy’; (ii) the Scheme was not yet finalised, so neither the September nor the February Decision constituted a ‘decision to make a (subsidy) scheme’; and (iii), once finalised, the Scheme would be established under s.10P of the Electricity Act 1989, which constitutes a duty imposed by Parliament, so any challenge in the Tribunal to the Scheme is precluded by Sch. 3 of the 2022 Act. In reply, Zenobē argued that s.10P of the 1989 Act provided a power (not a duty) to GEMA to establish the Scheme, because s.10P gave GEMA wide discretion in designing the Scheme; and, thus, Sch. 3 did not apply and the September Decision could still be challenged in the Tribunal.
The Tribunal concluded that the September and February decisions did not amount to a decision to make a subsidy scheme, and therefore that the Tribunal had no jurisdiction to review them. It also held that s.10P constituted a duty. The Tribunal did not address the remaining issues in the case, including whether LDES C&F support constitutes a ‘subsidy’.
Nicholas Gibson KC acted for Zenobē Energy Limited, instructed by Norton Rose Fulbright LLP.
Read the full judgment here.