Case T‑865/16

Fútbol Club Barcelona

v

European Commission

 Judgment of the General Court (Fourth Chamber), 26 February 2019

(State aid — Aid granted by the Spanish authorities in favour of certain professional football clubs — Preferential income tax rate applied to clubs authorised to benefit from the status of non-profit entity — Decision declaring the aid incompatible with the internal market — Freedom of establishment — Advantage)

1.      State aid — Examination by the Commission — Compatibility of aid with the internal market — Discretion — Observance of consistency between the provisions of the TFEU on State aid and other provisions of the TFEU concerning the functioning of the internal market — Formal investigation procedure opened with respect to a measure liable to restrict the freedom of establishment — Obligation to examine an independent infringement of the freedom of establishment — None

(Art. 49 TFEU and Art. 107 TFEU)

(see paragraphs 29-37)

2.      State aid — Definition — Granting of an advantage to the beneficiaries — National measure restricting access to the tax regime applicable to non-profit entities to certain professional football clubs — Burden of proving the existence of an advantage borne by the Commission — Assessment of the different components of that tax regime taken as a whole

(Art. 107(1) TFEU)

(see paragraphs 44-67)

3.      State aid — Administrative procedure — Obligations of the Commission — Diligent and impartial examination — Taking into account the most complete and reliable information possible — Scope of the obligation

(Art. 108(2) TFEU)

(see paragraphs 49, 69)

Résumé

By the judgment Fútbol Club Barcelona v Commission (T‑865/16), delivered on 26 February 2019, the General Court annulled Commission Decision (EU) 2016/2391 of 4 July 2016 on the State aid SA.29769 (2013/C) (ex 2013/NN) implemented by Spain for certain football clubs on the ground that the Commission had not established, to the requisite legal standard, that the disputed measure conferred an economic advantage on its beneficiaries.

The contested decision related to a Spanish law adopted in 1990 which required all Spanish professional sport clubs to convert into public limited sports companies, with the exception of those professional sport clubs that had achieved a positive financial balance during the financial years preceding the adoption of that law. The applicant, Fútbol Club Barcelona, and three other professional football clubs that fell within the scope of that exception had chosen to continue operating in the form of non-profit legal persons and enjoyed, in that capacity, a special rate of income tax. As that specific tax rate remained, until 2016, below the rate applicable to public limited sports companies, the Commission took the view, by the contested decision, that that legislation, by introducing a preferential corporate tax rate for the four clubs concerned, constituted unlawful and incompatible State aid and ordered the Kingdom of Spain to discontinue it and to recover the individual aid provided to the beneficiaries of that scheme.

In its judgment, the General Court rejected, first, the plea in law alleging infringement of Article 49 TFEU, in that the Commission should have found, according to the applicant, that the obligation imposed on professional sport clubs to convert into public limited sports companies was contrary to that article. In that regard, the General Court stated that, in State aid procedures, except in the situation where the incompatibility of the aid measure at issue arises from the infringement of Article 49 TFEU, the Commission does not have the power to find that there has been an independent infringement of Article 49 TFEU and to draw the appropriate legal conclusions.

Next, the General Court examined the plea in law alleging that the Commission had made errors during its examination of the advantage conferred by the legislation on the four clubs concerned. Having stated that the Commission has a duty to consider complex measures in their entirety in order to determine whether they confer on recipient undertakings an economic advantage which they would not have obtained under normal market conditions, the General Court noted that that also applies in relation to the assessment of an aid scheme. In that regard, in the case of an aid scheme, the Commission may confine itself to examining the general and abstract characteristics of the scheme in question, without being required to examine each particular case in which it applies, in order to determine whether that scheme comprises aid elements. That assessment must nevertheless include an assessment of the various implications, both advantageous and disadvantageous for its beneficiaries, of the scheme at issue, when the nature of the alleged advantage is unclear as a result of the inherent characteristics of the scheme.

Since the national legislation that is the subject of the contested decision amounts to a tightening-up, within the Spanish professional sports sector, of the scope ratione personae of the tax regime for non-profit entities, the General Court thus examined whether, in the contested decision, the Commission had established to the requisite legal standard that the tax regime for non-profit entities, considered as a whole, was liable to place its beneficiaries in a more advantageous position than if they had had to operate in the form of public limited sports companies. According to the General Court, that was not the case. Having stated that, at the time the contested decision was adopted, the Commission had at its disposal information highlighting the specific nature of the tax regime for non-profit entities as regards the extent of the tax deduction for the reinvestment of extraordinary profits at a level less beneficial than that applicable to public limited sports companies, the General Court stated that the arguments put forward by the Commission could not rule out the possibility that the fact that there were fewer opportunities for tax deductions under the regime for non-profit entities might offset the advantage derived from the lower nominal tax rate. As the Commission had not discharged, to the requisite legal standard, the burden of proving that the disputed measure conferred an advantage on its beneficiaries, the General Court found an infringement of Article 107(1) TFEU and annulled the contested decision.