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Sport and State Aid Before the EU Courts journal article

Applying the Rules as Normal Instead of Accepting a Sport Exception

Wolfgang Weiß

European State Aid Law Quarterly, Volume 23 (2024), Issue 2, Page 101 - 114

Sport has been a recurring topic for the CJEU in its application of EU law since the 1970s, but until recently it was hardly relevant to the area of State aid. This has changed significantly since 2019, when the GC annulled Commission decisions on State aid in the professional football sector, followed by two CJEU rulings in 2021 and 2022. The article will show that the judicial application of State aid law in these cases was not unique (especially as sport-specific claims by football clubs were considered irrelevant), that the cases provided insights of general importance for State aid law (eg regarding the standard of proof) and that Article 165 TFEU does not provide a specific exception. Keywords: State aid and sport; Spanish football cases; notion of aid; selectivity; standard of proof

Spanish Professional Football Clubs: How Salient Is the Exact Nature of the Aid? · Cases T-865/16 FC Barcelona v Commission, C-362/19 P Commission v FC Barcelona, T-791/16 Real Madrid CF v Commission, T-766/16 Hércules CF v Commission, T-732/16 Valencia journal article

Annotation on the Judgments of the General Court and the Court of Justice of the European Union in Case T-865/16 FC Barcelona v Commission (GC, 26 February 2019), C-362/19 P Commission v FC Barcelona (CJEU, 4 March 2021), T-791/16 Real Madrid CF v Commission (GC, 22 May 2019), T-766/16 Hércules CF v Commission (GC, 20 March 2019), T-732/16 Valencia CF v Commission (GC, 12 March 2020), T-901/16 Elche CF v Commission (GC, 12 March 2020)

Jacob Kornbeck

European State Aid Law Quarterly, Volume 20 (2021), Issue 1, Page 120 - 138

Five judgments handed down by the General Court (GC), in 2019-20, and by the Court of Justice, in 2021, have clarified aspects of three Commission State aid decisions regarding Spanish professional football clubs, through preferential tax rates applicable to non-profit organisations (Real Madrid, FC Barcelona, Athletic Bilbao, Atletico Osasuna) and land transactions between municipal and regional authorities and private entities (Real Madrid) and financial guarantees offered by public authorities to private entities (Hércules CF, Valencia CF, Elche CF). Not only questions of substance were clarified but also procedural ones. Two GC rulings were appealed to the Court. The specificity of sport (Article 165 TFEU) does not appear to have been instrumental in shaping any of the judgments annotated.

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.

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

Jacob Kornbeck

European State Aid Law Quarterly, Volume 18 (2019), Issue 2, Page 138 - 156

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).

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