On October 15, 2020, Advocate General Pitruzzella advised the Court of Justice to overturn the General Court’s annulment of the Commission’s decision that had found that preferential corporate tax rates enjoyed by FC Barcelona and other clubs amounted to unlawful and incompatible State aid. The Advocate General disagrees with the General Court’s conclusion that the Commission failed to show to the requisite legal standard the existence of an advantage in favor of FC Barcelona and proposes to set aside the judgment under appeal on this basis.
The Spanish sports law of 1990 required professional sports clubs to become limited companies. Those that had been profitable in the preceding financial year could, however, continue operating as “sport clubs” (a category of non-profit entities under Spanish law). FC Barcelona and Club Atlético Osasuna, Athletic Club, and Real Madrid fell under this exemption and so continued to operate as sports clubs, rather than becoming limited companies. The practical implication was that these four clubs benefited from a lower income tax rate than the sports clubs that were required to become limited companies.
The Commission’s decision of July 4, 2016 found that the Spanish sports law gave rise to a preferential corporate tax rate for certain clubs that was contrary to Article 108 (3) TFEU, and found the scheme incompatible with the internal market. It ordered the Kingdom of Spain to repeal it and recover from the clubs the difference between the corporate tax rate they had paid as “sport clubs” and the rate they would have paid had they been limited companies during that period.
FC Barcelona appealed this decision before the General Court, which annulled it on February 26, 2019 on the basis that the Commission had incorrectly assessed the existence of an advantage under Article 107 (1) TFEU. The General Court held that the Commission should not have concluded there was an advantage without first proving that the less beneficial tax deductions to which the parties were subjected did not offset the advantage derived from the lower tax rate they enjoyed. For this reason, the Court considered that the Commission had not discharged its burden of proving the measure granted an advantage to its beneficiaries. This is the judgment the Advocate General now proposes to overturn, for the reasons set out below.
In his Opinion, Advocate General Pitruzella discusses whether the decision at issue concerned the examination only of an “aid scheme” or whether it also related to the provision of individual aid. This is an important distinction because when examining a scheme the Commission need only review the general characteristics of the scheme, it does not need to analyze each individual case in which it was applied.
The Opinion considers that the decision at issue related to the examination of an aid scheme and not of individual aid. It is indisputable, according to the Advocate General, that the aid provided to the four clubs was on the basis of a scheme. Individual measures implementing an aid scheme cannot be categorized as “individual aid” within the meaning of Regulation No. 2015/1589, since they are not “notifiable awards of aid on the basis of a scheme.”
The Opinion then disagrees with the General Court’s view regarding the need to balance the advantages of non-profit status against the disadvantages. The Opinion concedes that to establish if the regime conferred an advantage to its beneficiaries vis-à-vis other football clubs, the Commission had to take all elements of that regime into account, including both favorable and unfavorable factors. But, in the context of tax regimes which apply on a periodic basis, the Opinion considers that a review should consider at the time of adoption whether the scheme could result in a lower tax liability for its beneficiaries than under the general tax regime. A finding that a regime confers an advantage to its beneficiaries therefore does not depend on whether, once the regime is applied, there is an effective advantage to such beneficiaries in a given tax year. It rather depends on whether the structure of the tax scheme, considered on an ex ante basis, implies that the downsides of the scheme “are able to neutralise, continually and systematically, the advantage resulting from the application of the preferential rate” so it can be consistently concluded that the regime does not confer an advantage. In the case at issue, the Commission could disregard the tax deductions, since they did not “neutralise, continually and systematically” the advantage derived from the lower tax rate these sports clubs enjoyed.
This Opinion, together with other pending cases concerning Valencia CF or Elche CF, illustrates the complexity of the economic assessment in these types of State aid cases, and, in particular, the practical difficulties in the application of State aid rules to professional sport clubs.
 European Commission v. Fútbol Club Barcelona (Case C-362/19 P), Opinion of Advocate General Pitruzzella, EU:C:2020:838 (the “Opinion”).
 Aid to certain football clubs – ES (Case COMP/SA.29769), Commission decision July 4, 2016, p.1.
 Fútbol Club Barcelona v. Commission (Case T-865/16), EU:T:2019:113.
 See, Opinion, paras. 14–17.
 See, Opinion para. 86.
 See, Opinion, para. 91.
 See, para. 77 of the Opinion. See also, France Télécom v. Commission (Case C-81/10 P) EU:C:2011:811, para. 19 and 24.
 Opinion, para. 105.
 Opinion, para. 105.
 The fact that these considerations are not relevant for the purposes of determining the existence of an advantage does not mean they can be ignored entirely in the Commission’s analysis. They become relevant when quantifying the aid, in an ex post analysis of whether the advantage actually materialized.