Joanne Clement KC appeared successfully for the Gambling Commission in The National Lottery Company Limited and others v The Gambling Commission [2026] CAT 14.
On 26 February 2026, the Competition Appeal Tribunal (Bacon J, Ben Tidswell and Derek Ridyard) dismissed an application brought by The National Lottery Company Ltd, Northern & Shell plc and The Health Lottery Elm Ltd under section 70 of the Subsidy Control Act 2022. The applicants contended that a decision of the Gambling Commission, taken on 19 July 2023, which permitted Camelot (the operator of the Third National Lottery Licence) to retain £70 million of the gross revenues of the National Lottery to invest them in the marketing of that lottery in order to increase ticket sales, was an unlawful subsidy.
The CAT held that the Gambling Commission did not give a subsidy to Camelot (or to Allwyn, the operator of the Fourth National Lottery Licence). The CAT concluded that the decision did not amount to a subsidy because the commercial market operator principle (“the CMO principle”) applied, and the decision was consistent with normal market conditions. The CAT gave important guidance on the application of the CMO principle, including how it applies in circumstances where a public authority is pursuing public policy and commercial objectives, and where there is no actual market comparator.
The CAT also held that even if the decision had amounted to a subsidy, relief would have been refused on the grounds of delay under section 72(8)(a) of the Act. The Applicants and their solicitors became aware of the decision at the latest by 15 January 2025. They did not send a pre-action protocol request until 2 months later, and did not issue proceedings until 8 May. The CAT concluded that, where the public authority does not consider that it has made a subsidy decision and there is no entry in the database, the time limits in section 71 of the Act and the new rule 98A provide a useful guide as to the time within which challenges should be brought. Subsidy challenges are required to proceed on a tight timetable, and the expectation is that proceedings should normally be issued within one month of the date on which the applicant was or should have been aware of the decision. If within that one period, a request is made for the provision of information, proceedings should normally be issued within a month of the information being provided. If proceedings are not issued within those timescales, the CAT concluded that this would normally constitute grounds for the refusal of relief on the basis of undue delay.
The judgment is available here:
Joanne Clement KC appeared for the Gambling Commission, instructed by Hogan Lovells International LLP
