Editor's note: Dr Despina Mavromati is an attorney specializing in international sports law and arbitration (Sportlegis Lausanne) and a UEFA Appeals Body Member. She teaches sports arbitration and sports contracts at the University of Lausanne, Switzerland

As the title indicates, this short note only deals with selected procedural issues and questions arising out of the very lengthy Semenya Judgment. In a nutshell, the SFT dismissed Semenya’s appeal to set aside the CAS Award, which had denied the request of Caster Semenya (Semenya, the Athlete) to declare unlawful the Differences of Sex Development (DSD) Regulations of World Athletics (formerly IAAF).[1]

At the outset, it has to be reminded that the CAS Award dealt with the merits of the Semenya case in a final and binding way by rendering an arbitral award according to Article R59 of the CAS Code (and Article 190 of the Swiss Private International Law Act – PILA). Therefore, the SFT did not act as an appellate court but rather as a cassatory court, entitled to review only whether the exhaustively enumerated grounds for annulment set out in Article 190 (2) PILA were met (and provided that they were properly invoked and substantiated in the motion to set aside said award).

The granting - and subsequent lifting - of the suspensive effect of the DSD Regulations

This was one of the few cases in sports arbitration where the SFT granted an urgent interim relief (mesures superprovisionnelles), by ordering World Athletics to suspend the implementation of the DSD Regulations, only to lift such relief shortly afterwards for lack of prima facie “reasonable chances of success”. The fate of the motion to set aside the CAS Award appeared to be ominous already at that stage. Another relatively recent case where the SFT granted interim relief (only to revoke it later) was the Guerrero case. 

Legal interest of a federation in order to “support” its member athletes

According to the admissibility conditions of the Law on the Federal Tribunal (LTF), the party filing a motion to set aside a CAS award must have a current interest worthy of protection. It is e.g. extremely difficult to meet this condition in a case relating to a competition that already took place. It One must also have a “personal” legal interest worthy of protection (see the SFT judgment in the matter of FIFA v. P. Guerrero & WADA). World Athletics contested the “personal” legal interest of Athletics South Africa but the SFT drew the distinction between this case and one of its previous judgments (the Guerrero case), where FIFA had contested a doping-related sanction imposed by the CAS before the SFT. Other than in the Guerrero case, the Athlete’s national federation (ASA) had not previously rendered a decision on the Athlete; moreover, national federations are directly concerned by the DSD Regulations to the extent that they need to actively collaborate with their international federation for their effective implementation (Semenya Judgment, at 4.1.3) This means that, in similar cases in the future, member federations have also standing to challenge the validity of such regulations.

Waivers to appeal to the SFT against CAS awards are invalid, full stop.

The waiver to bring the case before the CAS included in the disputed DSD Regulations was, obviously, invalid to the extent that it was not the “fruit of an explicit consent” by the Athlete. The latter had thus the right to contest the CAS Award before the SFT and this federal jurisprudence has remained unaltered since the groundbreaking Cañas SFT judgment (see the Semenya Judgment at 4.2.4).

The CAS independence revisited – even though not questioned by the parties

Unlike other athletes, Caster Semenya did not attack the CAS Award suggesting the lack of independence or impartiality of the CAS—either as an arbitral institution or as the subjective independence of its arbitrators (see the Semenya Judgment at 5.1.2). The SFT still deemed important to repeat its jurisprudence on the institutional independence and the specialized character of the CAS, to which the parties brought their dispute (see the Semenya Judgment including all references to SFT and ECtHR case law at 5.1.2).

The meaning - and limits - of the SFT leitmotiv “facts established by the CAS Panel are binding upon the SFT”

This is the reason most often invoked by the SFT when declaring inadmissible a particular grievance raised by the parties as a “criticism of appellatory nature” (see also “faits constatés dans la sentence” in the Semenya Judgment at 5.2.2). It is well-known that, unlike the de novo review by the CAS under Article R57 CAS Code, the SFT will not review the facts as they were established by the CAS Panel – save for the most exceptional circumstances (see the Semenya Judgment at 5.2.3 f.).

In the particular circumstances of this case, the facts binding on the SFT did not prevent the latter from reviewing the legality of the DSD Regulations. The SFT could however only consider the facts as they were established in the CAS award and not in the parties’ version of facts, to the extent that these versions deviated from the CAS factual findings (see the Semenya Judgment at 6). As such, the starting point for such analysis (and obviously one of key importance) was the Panel’s factual finding that athletes subject to the DSD Regulations enjoy an “overwhelming” advantage over other female athletes that are not subject to such regulations (see the Semenya Judgment -“avantage insurmontable”- at 9.6.2, at 9.8.2 and 11.1).

Swiss law not applicable in the case at hand

With the international federation based in Monaco (an exception to the rule that international federations are based in Switzerland), the CAS Panel proceeded to the interpretation of the DSD Regulations based on the IAAF Constitution and Rules, the Olympic Charter, and Monegasque law. As such, it held that Swiss law was not applicable to the merits and the SFT confirmed such finding (See the Semenya Judgment at 5.1.1). This, however, does not seem to have any influence on the SFT’s findings to the extent that the latter is not an appellate court and should not evaluate the application of Swiss–or any other—law applied in the specific case (see the Semenya Judgment at 9.1).

Violation of the constitution of the panel for unduly limiting its (full) scope of review

The Athlete raised a—rather unusual—ground for annulment (particularly based on the ground of irregular composition of the tribunal) because the panel had allegedly refused to amend or complement the DSD Regulations, thereby unduly limiting its scope of review. The SFT dismissed the plea holding that the full power of review of the panel related to the control of the proportionality of the DSD Regulations and not their amendment. The SFT dismissed the plea as unfounded, even though it implicitly considered that this plea does not even fall within the scope of irregular composition of the arbitral tribunal under Article 190 (2) (a) PILA but could – at most – constitute a violation of the parties’ right to be heard (see the Semenya Judgment -with further references- at 7).

Violation of substantive public policy – the three pleas invoked by the Athlete

Caster Semenya’s request for annulment of the CAS Award due to a violation of substantive public policy was divided into three pleas: the violation of the principle of prohibition of discrimination, the violation of personality rights of the Athlete and the violation of the Athlete’s human dignity. In this respect, the two conflicting groups were the athletes subject to the DSD Regulations against the athletes who were not subject to the DSD Regulations.

Horizontal Application of the Prohibition of discrimination ?

The prohibition of discrimination as foreseen in Art. 8 (2) of the Swiss Constitution applies to the relation between individuals and the State and has no “horizontal” effect. Sports associations are considered “private” parties notwithstanding their size and thus discrimination resulting from such private parties does not form part of the essential values that form public policy. The “private” character of sports associations has long been an obstacle for athletes when invoking violations of their constitutional guarantees and was also mentioned in this judgment (at 9.4).

Notwithstanding its insistence on the “private” character of sports associations, the SFT does seem to hesitantly develop its jurisprudence. Similar to the principles of interpretation under Swiss law, where the SFT has held that statutes of large federations must be interpreted in accordance with the principles of interpretation of a (states’) legal acts (see e.g. the Kuwait Motorsport SFT Judgment), the SFT acknowledged in the Semenya case that the relationship between an athlete and a large (international) sports association bears similarities to the relationship between an individual and a state (see the Semenya Judgment, at 9.4).

In any event, this interesting debate will have to wait for another judgment since the SFT eventually found that there was no violation of the prohibition of the principle of discrimination by following the argumentation of the CAS Panel, whereby a discriminatory measure can still be allowed if justified by a legitimate objective (in casu the principle of equality of chances). In the case at hand, the SFT relied on the assessment made by the CAS Panel which, after hearing all the arguments raised by the parties, resulted in a reasonable outcome (or at least to a “not unreasonable” outcome) (see the Semenya Judgment, at 9.4 and at 9.8.3.3).

Breach of personality rights and the difference from the Matuzalem judgment

On the breach of personality rights plea, the SFT reiterated its limited scope within the public policy grievance, which requires a clear and severe violations of a fundamental right. Again, the DSD Regulations were not found to fall within the (narrow) scope of Art. 27 Swiss CO, neither from the viewpoint of physical integrity nor from the viewpoint of economic freedom (see the Semenya Judgment, at 10.1).

Other than in the Matuzalem case (the first – and only SFT judgment that annulled a CAS award for violation of substantive public policy so far), the athlete would still be capable of participating in the specified competitions after complying with the conditions set out in the DSD Regulations; moreover, there was no imminent risk of their economic existence as was in the Matuzalem case, whereas the measure was found to be able to achieve the desired goal, were necessary and proportionate (see the Semenya Judgment at 10.5).

Violation of human dignity

The SFT seemed to endorse the CAS Panel’s findings in this respect, and concluded that the impossibility to participate in specific competitions would not amount to a violation of the athlete’s human dignity.

Should the SFT broaden the scope of public policy for sports arbitration? The SFT still says “no”

The scope of substantive public policy according to well-established jurisprudence of the SFT is extremely narrow and such limited review is compatible with the ECtHR (see the Semenya Judgment with references to the Platini Judgment at 5.2.5; see also the Semenya Judgment at 9.8.3.3). The SFT, once again, refused to broaden the scope of the public policy as a ground for annulment of CAS awards. This reminds us of a somewhat different yet analogous attempt of the parties in the SFT Judgment 4A_312/2017. The SFT had reiterated its position that there should be no different notion of public policy tailored to sports arbitration.[2]

Closing remarks: The Athlete’s requests for relief and the inherent limits of arbitration in similar cases

It is interesting to note that the Athlete did not appeal to the CAS against a decision finding her ineligible to compete based on the concrete application of the DSD Regulations. She rather filed a claim with the CAS attacking the legality of the DSD Regulations– for all the reasons mentioned in the CAS award and the SFT judgment.

This resulted in the CAS Panel finding – and the SFT confirming - that the DSD Regulations could not be invalidated as such but left the door open for future challenges: the DSD Regulations may prove disproportionate in their application, if e.g. it should prove impossible to apply them, in case of a specific athlete subject to the DSD Regulations where their application proves impossible or disproportionate (see the Semenya Judgment, at 9.8.3.5).

The Athlete would thus – theoretically – be able to file a new case with the CAS, once the DSD Regulations were implemented and following a potential decision on ineligibility. This shows the difficulty in directly challenging a set of regulations in cases where the hearing authority considers that it is rather their application in a concrete case that may give rise to a specific violation of athletes’ rights. The CAS panel, as an arbitral tribunal, is inherently limited by the scope of the appeal, which in the present case was Caster Semenya’s claim to have the DSD Regulations declared invalid as such.

[1] For an insightful overview of the facts behind the judgment and the findings of the SFT, see Marjolaine Viret, Chronicle of a Defeat Foretold: Dissecting the Swiss Federal Tribunal’s Semenya Decision – in the Asser International Sports Law Blog of 9 September 2020.

On 18 May 2016, the day the first part of this blog was published, the Commission said in response to the Hungarian MEP Péter Niedermüller’s question, that it had “not specifically monitored the tax relief (…) but would consider doing so. The Commission cannot prejudge the steps that it might take following such monitoring. However, the Commission thanks (Niedermüller) for drawing its attention to the report of Transparency International.”

With the actual implementation in Hungary appearing to deviate from the original objectives and conditions of the aid scheme, as discussed in part 1 of this blog, a possible monitoring exercise by the Commission of the Hungarian tax benefit scheme seems appropriate. The question remains, however, whether the Commission follows up on the intent of monitoring, or whether the intent should be regarded as empty words. This second part of the blog will outline the rules on reviewing and monitoring (existing) aid, both substantively and procedurally. It will determine, inter alia, whether the State aid rules impose an obligation upon the Commission to act and, if so, in what way.

In order to correctly decipher the potential consequences of Hungary’s behavior under EU State aid law, it is necessary to make a distinction between the part of the aid scheme declared compatible in the tax benefit scheme in the Hungarian sport sector decision, i.e. the donations for the sport infrastructures used by the professional sport organizations, and the donations used to cover personnel costs. Due to the fact that these two types of donation destinations were allowed based on two different exception procedures (the general exception found in Article 107(3)c) TFEU for the aid to sport infrastructure, and the General Block Exemption Regulation or the de minimis aid Regulation for the aid to cover personnel costs), the rules on reviewing and monitoring aid differ slightly. This blog will only focus on the review and monitoring rules of the tax benefit scheme in the Hungarian sport sector decision. 

Reviewing and monitoring State aid schemes – a Commission obligation?

A decision to approve an aid scheme (also known as a “positive decision” under Article 9(3) of the Procedural Regulation 2015/1589), should not fully release the Commission from any obligations regarding ex post control of that scheme. As can be read from Article 108(1) TFEU, “(t)he Commission shall, in cooperation with Member States, keep under constant review all systems of aid existing in those States. It shall propose to the latter any appropriate measure required by the progressive development or by the functioning of the internal market.”

The Commission’s responsibilities appear straightforward. After declaring the Hungarian tax benefit scheme compatible with EU law, it is obliged to review the implementation and usage of the aid by the Member State and the beneficiary, or beneficiaries. The CJEU settled as far back as 1974 that the Commission’s obligation to review existing aid is binding and that the Member States in question the obligation to cooperate with the Commission.[1] In fact, as Advocate General Lenz stated in his opinion in the Namur-Les Assurances du Crédit case, the Commission’s task to constantly review aid is even more necessary for aid schemes, like the Hungarian tax benefit scheme, as compared to individually authorized aid measures.[2] Pursuant to Article 108(1) TFEU and Article 21 of the Procedural Regulation, where the Commission considers that an existing aid scheme is not, or is no longer, compatible with the internal market instead of immediately launching a formal investigation, the Commission must issue a recommendation to the Member State concerned. The recommendation may propose, in particular:

1. Substantive amendment of the aid scheme;
2. Introduction of procedural requirements; or
3. Abolition of the aid scheme.[3]

It is important to note that in accordance with Article 288 TFEU, fifth sentence, recommendations have no binding force. Therefore, the proposed measure itself is not binding for the Member State. Only where the Member State accepts the proposed measure, shall it be bound by its acceptance to implement the appropriate measure.[4] However, if the Member State refuses to accept and implement the recommendations, the Commission could launch a formal investigation in accordance with Article 108(2).[5] Article 108 (1) TFEU and Article 21 of the Procedural Regulation also require the Member States to cooperate with the Commission for the purpose of reviewing aid schemes. This cooperation is further specified in Article 26 of the Procedural Regulation, which obliges Member States to submit annual reports on existing aid schemes to the Commission.[6] The reports allow the Commission to monitor the compliance with the positive decision by the Member State. As was already discussed in part 1 of this blog, Hungary too is required to submit a yearly monitoring report containing information on the total aid amount allocated, the sport infrastructure projects funded, their beneficiaries, etc.[7] A failure by Hungary to submit an annual report, would allow the Commission to propose an appropriate measure as listed above.[8] Whether Hungary actually submits annual reports to the Commission is currently unclear.      

Monitoring the tax benefit scheme in the Hungarian sport sector – not as straightforward as it appears

The Commission has repeatedly expressed its ambition for more and better monitoring of State aid schemes. This ambition follows from its primary objective to increase Commission enforcement focus on cases with the biggest impact on the internal market, as can be read from, inter alia, the State Aid Modernisation (SAM) Communication of 2012. Better targeted State aid control means an “increased responsibility of Member States in designing and implementing aid measures” for cases of a more local nature and with little effect on trade, as well as “enhanced ex post monitoring by the Commission to ensure adequate compliance” with the State aid rules.[9] In 2006, the Commission introduced a regular, ex post, monitoring exercise of existing aid schemes. The monitoring exercise gradually increased from 20 different schemes in 2006, to 75 schemes in 2014, covering all Member States, all main types of aid approved as well as block-exempted schemes.[10] The monitoring exercises conducted in 2014 led to the openings of four formal investigations.[11] The willingness to increase monitoring seems logical when taking into account EU case law, which imposes, in practice, an obligation for the Commission to review previously approved aid schemes. Yet, only a very small amount of existing aid schemes is monitored, nor is it realistically possible to do monitor all the schemes. As can be read in the recently published DG Competition Management Plan 2016, over the last 10 years the Commission declared over 3000 aid schemes or measures compatible with EU law after a the preliminary phase (“decisions not to raise objections”) alone.[12] This amount does not take into account positive decisions or block exempted aid schemes and measures, all of which should, strictly speaking, be monitored. Exact numbers on the amount of existing aid schemes currently running throughout the EU are not available, but one could safely say that the overwhelming majority of existing aid schemes are not monitored. Unless the State aid department of the Commission dramatically increases its resources, both in terms of finances and staff, monitoring all existing State aid schemes will remain utopic.  

The “specificity” of State aid to the professional sport sector and why extra monitoring in the sector should be considered

The Hungarian tax benefit scheme is not functioning in accordance with its original objectives: many of the sport infrastructure projects funded with public money do not seem strictly necessary and selected professional football clubs benefitted disproportionately. Under these circumstances, a monitoring exercise conducted by the Commission could be needed. If a monitoring exercise confirms disproportionate spreading of subsidies, a consequent set of appropriate measures taken by Hungary could bring the scheme in line with its original objectives. However, given that the majority of schemes are not monitored, there is a very big chance that the Hungarian tax benefit scheme is not one of the “lucky ones” selected. It is also unclear whether the Commission’s answer to the Parliamentary question of 18 May in any way increases that probability.  

The State aid complaint procedure as an alternative

Another way to force the Commission to look into the aid scheme, not yet discussed above, is through a State aid complaint procedure. Although the tax benefit scheme was already approved by the Commission in 2011, this should not rule out the possibility of an interested party submitting a complaint to inform the Commission of any alleged unlawful aid.[13] Pursuant to Article 12(1), the Commission is obliged to examine without undue delay a complaint by an interested party, thereby automatically triggering the preliminary State aid investigation of Article 108(3) TFEU. Although ‘unlawful aid’ refers to new aid put into effect in contravention of Article 108(3) TFEU[14], and not existing aid, such as aid schemes authorized by the Commission[15], ‘new aid’ also refers to existing aid that has been altered by the Member State.[16] In accordance with the Commission’s State Aid Manual of Procedures, for an aid scheme to be altered, the complainant would need to demonstrate that a change has taken place that affects “the evaluation of the compatibility of the aid with the common market”.[17] In addition to this, the complaint would need to include, inter alia, information on the (functioning of) the scheme, the amount of aid granted, and why the scheme is no longer compatible under Article 107(3).[18] A further highly important criterion is for the interested party to demonstrate to the Commission that the complainant is directly affected in its “competitive position” by the aid scheme.[19] This criterion empowers the Commission to separate formal complaints from the complaints that are “not motivated by genuine competition concerns”, thereby reducing considerably its workload of having to launch a (preliminary) investigation based on every single complaint it receives.[20] Complaints submitted by complainants, who the Commission does not consider to be interested parties, will be regarded as “general market information”[21] and do not oblige the Commission to investigate.  

The “specificity” of State aid to professional sport – no complaints by other clubs

The “interested party” criterion was only added after the reform of the Procedural Regulation in 2013[22], and has affected the professional sport sector considerably. The two years prior saw great activity by the Commission in the sector, including the opening of four formal investigations into alleged State aid to professional football clubs like Real Madrid and Valencia CF.[23] The investigations into alleged aid granted to Real Madrid and Valencia CF were not launched after the submission of a complaint by an interested party, but after “the attention of the Commission was drawn by press reports and information sent by citizens in 2012-2013”.[24] The end of formal investigations into alleged aid granted to professional sport clubs coincided with the introduction of the “interested party” criterion: since citizens are not considered interested parties, the Commission does not have an obligation anymore to investigate complaints, or any form of information, submitted by them. At this moment, only complaints submitted by interested parties, i.e. a party directly affected in its competitive position, have the potential of triggering fresh State aid investigations in the professional sport sector.[25]

Which persons or undertakings fulfill the “interested party” criterion? The answer to this question requires a case by case analysis and depends on the aid measure or scheme chosen by the public authorities.[26] Nonetheless, where aid is granted to a professional sport club, the clearest example of an interested party would be another professional sport club. Getting professional sport clubs to submit State aid complaints is, however, easier said than done. Contrary to other economic sectors where competitors would complain if they feel that they are directly affected in their competitive position, no professional sport club has ever submitted a State aid complaint, nor is it likely to happen anytime soon. As is confirmed by Dutch professional football club FC Groningen’s director Hans Nijland in an article published on 18 May by the Dutch magazine De Groene Amterdammer , “if (another football club) manages to sign a deal with its municipality, I will not complain. In fact, I would say congratulations, well done”.[27] The same mentality probably prevails in Hungary, making it very unlikely that a Hungarian professional football club, or any other professional sport club, decides to submit a complaint alleging unlawful aid to, say, Puskás Akadémia FC due to the disproportionate distribution of subsidies under the tax benefit scheme.  

Why extra monitoring in the sport sector should be considered

The advantages of EU State aid control include efficient government spending in the economy as well as better accountability and transparency of aid measures.[28] Nonetheless, with the chances of the Commission monitoring existing aid in professional sport, such as the Hungarian tax benefit scheme, being very slim, and given the unlikeliness of a submission of a complaint by a competing professional sport club, how useful are the State aid rules to achieve better accountability and transparency in (professional) sport? Local governments will continue spending large amounts of public money on projects that distort competition and are contrary to the general public interest, without a meaningful risk of being called back. Furthermore, as long as the Commission does not prioritize State aid enforcement to the professional sport sector, similar to how it enforces the State aid rules regarding fiscal aid to multinationals[29], it is also unlikely that it will investigate ex officio.

From the “efficient use of Commission resources” viewpoint, it is, in a way, understandable that the Commission has decided not to prioritize State aid to professional sport. They are, after all, not the most distortive State aid cases. However, this lack of prioritization is not being compensated with the submission of complaints by interested parties, meaning that public authorities have less to fear from State aid control in the professional sport factor, as compared to other market sectors.

To prevent a complete carte blanche for the public authorities, I would argue that the Commission should impose upon itself stricter conditions as regards monitoring State aid measures and scheme to the benefit of professional sport clubs. The current monitoring system, where the chance of being monitored is smaller than not being monitored, is inefficient in a sector where competitors do not serve as watchdogs. Only by radically increasing the monitoring chance in the professional sport sector can better accountability and transparency of aid measures be achieved.

[1] Case 173/73, Italy v Commission, [1974] ECLI:EU:C:1974:71, para 24.

[2] Opinion of Advocate General Lenz in Case C-44/93, Namur-Les Assurances du Crédit SA v Office Nationale du Ducroire , [1994] ECLI:EU:C:1994:262, para 86.

[3] Procedural Regulation 2015/1589, Article 22. Contrary to the decision options of formal investigations, a decision to order a recovery of the aid from the beneficiary or beneficiaries, as listed in Procedural Regulation, Articles 9(5) and 16, is not an option for the “review procedure”.

[4] Ibid., Article 23(1).

[5] The Enterprise Capital Funds (ECF) decision is a good example of a formal investigation based on ex post review and monitoring. Following a “selected” monitoring exercise in 2011, it was discovered that the UK had failed to take the appropriate measures to bring an aid scheme in line with the Commission Guidelines on Risk Capital , even though it had promised to do so. This led to the Commission opening a formal investigation in November 2011.

[6] Pursuant to Procedural Regulation, Article 26(1), the obligation to submit annual reports applies to decisions “to which no specific reporting obligations have been imposed in a conditional decision”. Under a conditional decision, the Commission attaches to a decision conditions subject to which aid may be considered compatible with the internal market. The tax benefit scheme in the Hungarian sport sector decision has no specific conditions attached to it, apart from the usual obligation for the Member State concerned to submit an annual report to the Commission.

[7] Commission Decision of 9 November 2011, SA.31722 – Hungary - Supporting the Hungarian sport sector via tax benefit scheme , para 57.

[8] Procedural Regulation 2015/1589, Article 26(2).

[9] EU State Aid Modernisation Communication of 8 May 2012 , para 19.

[10] Commission Staff Working Document of 4 June 2015, “ Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on Competition Policy 2014 ”, page 10.

[11] Ibid. One of the investigations involved the Enterprise Capital Funds scheme – Supra n5.

[12] DG Competition document of 18 March 2016 REF. Ares(2016)1370536 “ Management Plan 2016 ”, page 15.

[13] Procedural Regulation 2015/1589, Article 24(2).

[14] Ibid., Article 1(f).

[15] Ibid., Article 1(b)(ii).

[16] Ibid., Article 1(c).

[17] Internal DG Competition working documents on procedures for the application of Articles 107 and 108 TFEU of 10 July 2013, State Aid Manual of Procedures , Section 5, para 1.2.1.

[18] A complaint that does not comply with the compulsory complaint form, or if the complainant does not provide sufficient grounds to show the existence of unlawful aid can be withdrawn by the Commission. See Procedural Regulation 2015/1589, Article 24(2).

[19] Form for the Submission of Complaints Concerning Alleged Unlawful State Aid or Misuse of Aid , point 3.

[20] Draft Report by the European Parliament of 19 March 2013 on the proposal for a Council Regulation amending Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty (COM (2012) 725 final) , page 17.

[21] Supra., No 19.

[22] Council Regulation (EU) No 734/2013 of 22 July 20-13 amending Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty [2013] OJ L204/14.

[23] An explanation on why the public financing of sports infrastructure and professional sports clubs only started to attract State aid scrutiny in recent years can be read in: Ben Van Rompuy and Oskar van Maren, “EU Control of State Aid to Professional Sport: Why Now?” In: “The Legacy of Bosman. Revisiting the relationship between EU law and sport”, T.M.C. Asser Press, 2016.

[24] See, for example Commission decision of 18 December 2013, SA.36387 Spain – Alleged aid in favour of three Valencia football clubs, para 3. The other formal investigations to professional football clubs (i.e. Real Madrid , five Dutch football clubs and four Spanish football clubs ), were also launched after the Commission received information through citizens and/or the press.

[25] Or the Commission decides to open an investigation ex officio pursuant to Procedural Regulation 2015/1589, Article 12(1). However, this is very unlikely, given the lack of priority given by the Commission to sport.

[26] For example, in the case of the Hungarian tax benefit scheme, clubs or associations not active in the sport sector (e.g. theatre clubs, art clubs, etc.), could potentially argue that they have been placed in a disadvantageous position, since they cannot receive donations under the scheme. An aid measure provided in the form of advantageous land transactions, such as the Real Madrid case, could directly affect any undertaking interested in purchasing the same land, or any other plot of land against other market conditions.

[27] Hester den Boer and Bram Logger, “ Een spits van belastinggeld; Onderzoek – Lokale overheden blijven profvoetbal massaal steunen ”, De Groene Amsterdammer, 18 May 2016, page 5.

[28] See for example Oskar van Maren, “EU State Aid Law and Professional Football: A threat or a Blessing?” , European State Aid Law Quarterly, Volume 15 1/2016, pages 31-46.

[29] High profile formal State aid investigations into alleged aid granted by means of selective tax agreements between Member State governments and multinationals like Starbucks, Fiat, Amazon or Apple, have launched in the last few years.