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State Aid and Access to Sport – Lessons for VAT Law?

DOI https://doi.org/10.21552/estal/2019/2/4

Jacob Kornbeck


Whereas discussions of the applicability of EU law to the sport sector have tended to focus on the ‘specificity’ of the private rules (lex sportiva) of sports governing bodies (SGBs), embracing ‘specificity’ carries the risk of exempting specific legal entities rather than specific activities worthy of exemption because linked to specific public policy objectives. However, as this exercise has yielded dissimilar results in different areas of EU law, there is scope for one area to learn from the decisional practice and case law of another area. It is submitted that an emerging ‘access to sport’ doctrine can be identified in the field of EU State aid law, already inherent in the relevant legal requirements, including Commission Reg. 651/2014 and Notice C/2016/2946, as confirmed by the decisional practice of the Commission as well as recent case law including Alpenverein [2016] and Hamr Sport [2016]. The field of EU VAT law could benefit from some of the insights generated within State aid law for, while the legal framework is different, as defined in Article 113 TFEU, the recent case law has engendered a questionable doctrine, notably in English Bridge Union [2017], making the physicality of the activity the yardstick while, crucially, dependent on formal recognition by SGBs. The paper will argue in favour of adopting a health-enhancing physical activity (HEPA) doctrine, as already enshrined in relevant EU sport soft law and, indirectly, within the area of EU State aid law.
Keywords: VAT; Sport; Specificity; Access to sport; Public policy; Health-enhancing physical activity (HEPA).

Jacob Kornbeck, BSc, MA, PhD, LLM, is an EU civil servant. A former member of the Commission’s Sport Unit (2001-14), the author is an external part-time lecturer at the German Sport University in Cologne. Views expressed in this paper are strictly personal and do not represent official positions of the European Commission, nor of any other EU institution. Thanks are owed to an anonymous reviewer for helpful comments and suggestions provided as part of the double-blind peer-review process.

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