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Assessing the Standard of Proof in Fiscal State Aid

Red Card to the Commission

DOI https://doi.org/10.21552/estal/2019/4/3

Begoña Pérez Bernabeu


The General Court annulled the Commission’s Decision qualifying as State aid a tax regime granted by Spain to certain Spanish professional football clubs (namely, FC Barcelona, Real Madrid FC, Athletic Bilbao and Club Atlético Osasuna). The General Court took the view that the Commission had not proven that the tax regime had the effect of conferring an actual economic advantage on these four clubs. This judgment is highly significant because, without ruling on most of the substantive issues of the Case, it is the first time that criteria on the burden and standard of proof incumbent on the Commission are so clearly stated, particularly in the field of State aid. Moreover, this General Court’s approach is supported by recent and later Case law under which the Commission is required to carry out a complete analysis of all the factors that are relevant to the measure at issue.
Keywords: Burden of proof; Standard of proof; Tax advantage; Football; Sports.

Begoña Pérez Bernabeu is Tax Law Professor, University of Alicante (Spain).The author of this paper is a member of a Research Excellence Group funded by the Spanish Regional Government of the Comunidad Valenciana (Conselleria de Educación, Investigación, Cultura y Deporte, Generalitat Valenciana), Research Excellence Group PROMETEO/2016/053.

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