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Taxation, State Aid Rules and Arbitral Courts: journal article

A BIT of a Mess in the Micula Saga

Begoña Pérez Bernabeu

European State Aid Law Quarterly, Volume 19 (2020), Issue 3, Page 329 - 338

In its long-awaited ruling on 18 June 2019, the General Court (GC) annulled the Commission's State aid Decision in the Micula case where the Commission considered that the damages payment by Romania of an ICSID award constituted State aid. In the GC's opinion, the payment of the adverse arbitration award by a Romania does not constitute illegal State aid. Unfortunately, the GC's reasoning is tied to the timing of the measure taken by Romania, which took place before Romania acceded to the EU, and the rest of the compelling substantive pleas were not assessed. Moreover, the GC did not rule on whether the compensation of the withdrawal of the tax incentives for the post-accession period constitutes State aid given that the Commission failed to distinguish between compensation for the period predating accession and post-accession. For this reason, this judgment does not put an end to the Micula saga as long as the Commission has lodged an appeal before the Court of Justice. Keywords: arbitral award, Bilateral Investment Treaty (BIT), repeal of tax incentives, damages compensation, enforcement


The Spanish Hydroelectric Tax: Asymmetrical Taxation with Environmental Flavour · Joined Cases C-105/18 to C-113/18 UNESA · Annotation by Begoña Pérez Bernabeu journal article

Annotation on the Judgment of the Court (Fifth Chamber) of 7 November 2019 in Joined Cases C-105/18 to C-113/18 UNESA

Begoña Pérez Bernabeu

European State Aid Law Quarterly, Volume 19 (2020), Issue 3, Page 352 - 358

The Spanish tax Canon por la utilización de aguas continentales para la producción de energía eléctrica -guided by a (called into question) environmental objective- taxes only a kind of electricity producers (hydroelectric producers using inland waters located in the territory of more than one autonomous community) on the basis on the environmental damage they cause employing the inland water. In contrast, hydroelectricity producers operating within river basins encompassing a single autonomous community, the rest of electricity producers whose source of electricity production is other than water (which are both direct competitors) and even all the installations which use water for purposes other than the production of hydroelectricity are not liable to the tax. The Spanish Supreme Court referred the matter to the Court of Justice on for a preliminary ruling. However, the Court of Justice conducted a misguided analysis of selectivity through the reference framework method and concluded the inexistence of selectivity and, hence, of State aid.


Assessing the Standard of Proof in Fiscal State Aid journal article

Red Card to the Commission

Begoña Pérez Bernabeu

European State Aid Law Quarterly, Volume 18 (2019), Issue 4, Page 447 - 457

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.


Football Glory, Credit Crisis and State’s Paternalism · Case T-766/16 Hércules CF v European Commission · Annotation by Begoña Pérez Bernabeu journal article

Annotation on the Judgment of the General Court (Fourth Chamber) of 20 March 2019 in Case T-766/16 Hércules CF v European Commission.

Begoña Pérez Bernabeu

European State Aid Law Quarterly, Volume 18 (2019), Issue 4, Page 549 - 554

Football is the most famous sport all around the globe and is also of great social and cultural significance. For this reason, State authorities may be tempted to provide additional support to professional football clubs which find themselves in an acute financial crisis through direct or indirect (like guarantees, tax or levies exemptions, loans on more favourable terms, transactions under non-market conditions) support measures. However, the football sector is not special for competition rules and the Commission has recently begun to enforce State aid rules in football. In the Hércules CF judgment, the General Court studies a situation that perfectly fits in the above-described situation since it analyses the grant of a public guarantee to a professional football club which is in a difficult financial position. Finally, the General Court annulled the Commission’s Decision on formal grounds on the basis of a comprehensive approach of the proof assessment carried out by the Commission. Keywords: Football; Indirect financial support; Guarantee; Loan; Lack of motivation.


How to Determine the Existence of a Tax Advantage · Case T-865/16 F.C. Barcelona · Annotation by Begoña Pérez Bernabeu journal article

Annotation on the Judgment of the General Court (Fourth Chamber) of 26 February 2019 in Case T-865/16 F.C. Barcelona v European Commission

Begoña Pérez Bernabeu

European State Aid Law Quarterly, Volume 18 (2019), Issue 3, Page 377 - 381

Without ruling on the merits of the Case, the General Court annulled the Commission’s Decision qualifying as State aid a tax regimen granted by Spain to the major Spanish professional football clubs Real Madrid, F.C. Barcelona, Athletic Club de Bilbao and Club Atlético Osasuna. Following the action for annulment from F.C. Barcelona, the General Court took the view that the Commission had not sufficiently proven that the tax regime had the effect of conferring an actual economic advantage on these four clubs. Keywords: State aid; Burden of proof; Standard of proof; tax advantage; tax rate.

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