Editor's note: Mark James is Professor of Sports Law at Manchester Metropolitan University and the author of a leading Sports Law textbook.

The opening days of the FIFA World Cup Qatar 2022 have already resulted in a number of issues of interest to sports lawyers and human rights lawyers, with FARE’s Piara Powar claiming that this is the most political major sporting event that he has attended. Both FIFA and the local organisers have been active in their suppression of expressions of support for LGBTQIA+ rights by players, fans and journalists alike, calling into question once again the legality of restricting free speech by sporting rules and regulations.

There have been two major flashpoints to date. First, seven European federations had asked FIFA for permission for their captains to wear armbands supporting the ‘OneLove’ campaign. FIFA’s response was to refuse, resulting in the German players covering their mouths for their pre-match photographs in protest at their being silenced. There are several grounds on which FIFA would seek to support its position:

•  Law 4.5 of the Laws of the Game prohibits any playing equipment from carrying any political, religious or personal slogans, statements or images.
• Regulation 4.3.1 of FIFA’s Equipment Regulations and Regulation 27.1 of the FIFA World Cup 2022 Regulations prohibits clothing or equipment that includes political, religious, or personal slogans, statements, or images, or otherwise does not comply in full with the Laws of the Game.
• Regulation 33.3 of the FIFA World Cup 2022 Regulations prohibits the display of political, religious or personal messages or slogans of any nature in any language or form by players and officials.
• Regulation 13.8.1 of FIFA’s Equipment Regulations states that for FIFA Final Competitions, the captain of each Team must wear the captain’s armband provided by FIFA (all Regulations available in the FIFA Legal Handbook 2022).

Although the DFB is considering a challenge to FIFA’s refusal to allow its captain to wear the OneLove armband, which would ultimately be heard before CAS, it is unlikely to succeed in the face of the strict requirements of the above Laws and Regulations. However, what could cause more difficulty for both FIFA and CAS is if the DFB frames its case as a challenge to the compliance of the rules that restrict players’ freedom of expression with Article 3 of FIFA’s Statutes, which states that ‘FIFA is committed to respecting all internationally recognised human rights.’ Article 3, together with the additional detail provided by FIFA’s Human Rights Policy, ensures that freedom of expression as defined in Article 19 of the Universal Declaration of Human Rights and Article 10 of the European Convention on Human Rights are limitative rules that can be applied directly to FIFA’s activities, as has been argued by Bützler and Schöddert. Further, if the affected players and associations can define themselves as human rights defenders, then Article 11 of FIFA’s Human Rights Policy states that, ‘FIFA will respect and not interfere with the work of … human rights defenders who voice concerns about adverse human rights impacts relating to FIFA.’ Any challenge using this approach would be the first real test of the enforceability of the human rights protections to which FIFA claims to be committed. It would also be a test of CAS’s ability to require adherence to the human rights commitments made by ISFs and to prove that they are more than simple window-dressing.

Secondly, members of The Rainbow Wall, a contingent of LGBTQIA+ rights-supporting Welsh fans, were prevented from entering the Ahmed bin Ali stadium whilst wearing bucket hats incorporating a rainbow into its design. No explanation for why was given, however, FIFA and the local organisers would argue that openly supporting LGBTQIA+ rights with the aim of promoting legal change in a country where homosexuality is illegal is a political statement on apparel and therefore entry into the stadium wearing the rainbow hat is in breach of the Regulation 3.1.23 of the Stadium Code of Conduct. A similar argument could be used to justify preventing US journalist Grant Wahl from entering the stadium wearing a t-shirt incorporating a rainbow into its design and Danish journalist Jon Pagh from wearing the OneLove armband. However, it must be stressed that no such explanation for the prohibitions applied to these garments was provided to any of the affected fans or journalists. It must also be recognised that the opinion that promoting LGBTQIA+ rights is a political expression is highly contested. In a statement from FIFPRO, the opposing view was stated succinctly: ‘We maintain that a rainbow flag is not a political statement but an endorsement of equality and thus a universal human right.’

It is clear that, as with Rule 50 of the Olympic Charter, the chilling effect that FIFA’s Regulations have on players’ and fans’ freedom of expression is likely to be unlawful, as has been discussed at length both on this blog and on the Verfassungsblog Debate on Freedom of Expression in the Olympic Movement. Instead of revisiting these arguments, which are taken to apply to FIFA’s actions at Qatar 2022, two additional issues related to the FIFA Statutes are explored here.

Articles 3 and 4 of FIFA’s Statutes state that:

3 Human rights

FIFA is committed to respecting all internationally recognised human rights and shall strive to promote the protection of these rights.

4 Non-discrimination, equality and neutrality

4.1 Discrimination of any kind against a country, private person or group of people on account of race, skin colour, ethnic, national or social origin, gender, disability, language, religion, political opinion or any other opinion, wealth, birth or any other status, sexual orientation or any other reason is strictly prohibited and punishable by suspension or expulsion.

FIFA is a long-time supporter of pride events and in its press release for Pride Month 2022 stated:

[The] FIFA World Cup Qatar 2022™ will be a celebration of unity and diversity – a joining of people from all walks of life – regardless of race, ethnicity, religion, age, disability, sex characteristics, sexual orientation, gender identity and expression – everybody will be welcome.

Claims that all staff involved in the Qatar 2022 including public and private security forces, would be trained on how to accomplish their tasks in a non-discriminatory manner, seem not to have been operationalised effectively.

This begs the question whether FIFA is in breach of its own Statutes by refusing to allow players to express themselves freely on armbands and failing to protect fans’ freedom of expression by wearing rainbows. At the very least, FIFA should have ensured that a protective LGBTQIA+ regime in the stadiums and the fan zones during the World Cup was implemented to enable the ‘celebration of unity and diversity’ it claims that Qatar 2022 should be. FIFA’s actions in Qatar call into question its claims to be an inclusive and supportive leader on anti-discrimination and human rights, and is likely to see a backlash from the LGBTQIA+ community that it claims to support when it engages with Pride 2023; accusations of hypocrisy and virtue signalling are guaranteed.

With no resolution to the debate at the time of writing, Articles 3 and 4 could provide players and fans with the opportunity to demonstrate their support for human rights and anti-discrimination causes. At the Sochi 2014 Winter Olympics, Athlete Ally developed the ‘Principle 6 Campaign.’ Instead of criticising directly Russia's so called anti-gay laws, which are currently in the process of being extended, athletes promoted Principle 6 of the Olympic Charter, which at the time stated that, ‘Any form of discrimination with regard to a country or a person on grounds of race, religion, politics, gender or otherwise is incompatible with belonging to the Olympic Movement.’ The eventual outcome of this campaign was the addition of sexual orientation to the list of characteristics protected by Principle 6. Unlike at Sochi 2014, there is no need to campaign for a change to either of Articles 3 or 4 of the FIFA Statutes; instead, activists want to ensure that they are being applied. An immediate response for both players and fans would be for them to quote specifically from Articles 3 and 4, as it would be extremely difficult for FIFA to claim that they are making political or personal statements when promoting FIFA’s own foundational values. A creative reminder of what FIFA claims to stand for could enable player and fan activism to continue throughout the tournament, and beyond, whilst affected players and associations can develop a compelling case for the restrictions on freedom of expression to be struck out by CAS, the Swiss Federal Tribunal and/or the European Court of Human Rights.

The editorial board of the International Sports Law Journal (ISLJ) is very pleased to invite you to submit abstracts for its first Annual Conference on International Sports Law. The ISLJ, published by Springer in collaboration with ASSER Press, is the leading publication in the field of international sports law. Its readership includes both academics and many practitioners active in the field. On 26-27 October 2017, the International Sports Law Centre of the T.M.C. Asser Instituut and the editorial board of the International Sports Law Journal will host in The Hague the first ever ISLJ Annual Conference on International Sports Law. The conference will feature panels on the Court of Arbitration for Sport, the world anti-doping system, the global governance of sports, the FIFA transfer regulations, comparative sports law, and much more.

Abstracts could, for example, tackle questions linked to the following international sports law subjects:

• The interaction between EU law and Sport 
• International sports arbitration (CAS, BAT, etc.)
  
• The functioning of the world anti-doping system (WADA, WADC, etc.)
  
• The global governance of sport
  
• The regulation of mega sporting events (Olympics, FIFA World Cup)
  
• The international regulation of football (FIFA Regulations on the Status and Transfer of Players and UEFA Financial Fair play Regulations)
  
• The global fight against corruption in sport
  
• Comparative sports law

Your abstract (no more than 300 words) and your CV should be sent no later than 15 May 2017 to Antoine Duval. Selected speakers will be informed by 30 May.

The ASSER Institute will offer one night accommodation for the speakers and will provide a limited amount of travel grants. If you wish to be considered for a grant please provide an explanation in your submission.

ISLJ Awards: The three best papers of the conference will receive an ISLJ award and their authors will be given the opportunity to publish them in the ISLJ.

Editor's note (13 July 2015): We (Ben Van Rompuy and I) have just published on SSRN an article on the Pechstein ruling of the OLG. It is available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2621983. Feel free to download it and to share any feedback with us!

On 15 January 2015, the earth must have been shaking under the offices of the Court of Arbitration for Sport (CAS) in Lausanne when the Oberlandesgericht München announced its decision in the Pechstein case. If not entirely unpredictable, the decision went very far (further than the first instance) in eroding the legal foundations on which sports arbitration rests. It is improbable (though not impossible) that the highest German civil court, the Bundesgerichtshof (BGH), which will most likely be called to pronounce itself in the matter, will entirely dismiss the reasoning of the Oberlandesgericht. This blogpost is a first examination of the legal arguments used (Disclaimer: it is based only on the official press release, the full text of the ruling will be published in the coming months).

The Pechstein Saga

Few are able to remember the start of Claudia Pechstein’s legal crusade through all available jurisdictions in the northern hemisphere[1]. Thus, a concise summary of the previous episodes is in order. Claudia Pechstein is a German Speed-Skater, multiple Olympic Gold Medallist and World Champion. In 2009, she was one of the first athletes caught for doping on the basis of the blood profiling system introduced by the International Skating Union (ISU)[2]. Henceforth, the ISU banned her from all competitions for two years. This triggered a long and embroiled legal saga. She appealed the ban in front of the Court of Arbitration for Sport (CAS), based on an arbitration agreement included in her license with the national and international federations. The CAS dismissed (CAS 2009/A/1912 & 1913 and CAS OG 10/04) her claims and confirmed the two-year ban. Subsequently, she contested (twice!) the award in front of the Swiss Federal Tribunal (Case 4A_612/2009, 10 February 2010 and Case 4A_144/2010, 28 September 2010), but was both times unsuccessful. Her case is also pending before the European Court of Human Rights. Meanwhile, she started an action for damages (around € 4 Million) in front of the local Court of Munich (Landesgericht München). This Court released its judgment on 26 February 2014, despite recognizing the invalidity of the arbitration clause, it considered that the award’s res judicata effect was to be recognized because Pechstein did not contest the competence of CAS when she appealed the ISU’s decision to it. Pechstein decided to appeal the judgment to the Oberlandesgericht München, which in its decision from 15 January 2015 embraced her claims.

The Decision of the Oberlandesgericht München

The overall position of the Oberlandesgericht concerning the CAS award is straightforward. The court considers the arbitration clause between the ISU and Claudia Pechstein as contrary to German (and maybe European) antitrust law, which is part of German public policy, and, therefore, refuses on the basis of Article V (2) (b) New York Convention of 1958 to recognize the validity in Germany of the CAS awards rendered in the Pechstein case. But, why is it so?

First of all, the judges point out a typical (but often overlooked) fact about International Sports Governing bodies: they are monopolists. In other words, they control the market(s) for international sports competitions and nowadays (at least in speed-skating) no professional athlete can afford, if he is to live from his sport, to miss those competitions. Yet, German antitrust law bans an undertaking placed in a dominant position from imposing contractual conditions that differ from what they would be in a normal competitive environment. Hence, the Court held that the ISU was unlawfully imposing onto Claudia Pechstein the signing of a CAS arbitration clause. But, is a forced arbitration clause per se constitutive of an antitrust violation? The Court is subtler. In fact, it acknowledges that an arbitration clause imposed by a Sports Governing Body does not constitute per se an antitrust violation. To the contrary, the Court clearly states that there are good reasons (for example the uniform application of anti-doping regulations) to subject the resolution of sporting disputes between athletes and Sports Governing Bodies to a unique world court for sport. What is the problem then?  

In the eyes of the German court, the problem lies with CAS and its institutional set-up. First of all, the Sports Governing Bodies (International federations, NOCs and IOC) have a decisive influence on who is potentially called to be an arbitrator in CAS arbitration. Here, without clearly alluding to it in the press release, the Court has the closed list of CAS arbitrators in mind. In short, only a predefined number of people can act as arbitrators before CAS. Those arbitrators are appointed on the CAS list by ICAS, the CAS code in force at the time of the case foresaw that 3/5 of the arbitrators were appointed upon proposals made by the Sports Governing Bodies[3]. This has changed. As from the 1 January 2014 the ICAS is free to appoint whomever it deems appropriate on the list[4]. Nevertheless, the Court finds that, at least for the time Pechstein was facing the CAS, the Sports Governing Bodies were in a structurally favourable position regarding the composition of the arbitral panel. In practice, athletes were forced to ratify this disequilibrium due to the monopoly of Sports Governing Bodies on the access to international sporting competitions.

Furthermore, the German judges consider that this imbalance plagues also the nomination process of a president of an arbitral panel. Indeed, under article R54 of the CAS Code, the president of the CAS Appeals Arbitration Division is responsible to nominate the presidents of the panels[5]. However, the president of the CAS appeals division is himself nominated by the ICAS[6], which consists mainly of representatives of the Sports governing bodies[7], and is often a personality close to them[8]. Currently, the ICAS has 20 members, of which 14 have (or had) direct ties with Sports Governing bodies and none is connected to the existing athlete’s unions. This institutional bias entrenches the structural imbalance in favour of the Sports Governing Bodies already identified by the Court apropos the closed list of arbitrators. Thus, the independence of the panel cannot be guaranteed and the fairness of the arbitral process safeguarded. Therefore, in light of the monopolistic position of the ISU and the lack of independence of CAS panels, the imposition of an arbitration clause depriving the athlete of her constitutional right to a judge constitutes a breach of German antitrust law.

Consequently, and contrary to the first instance Landesgericht[9], the Oberlandesgericht refuses to recognize, on the basis of Article 5 par. 2  b) of the 1958 New York Convention, the validity of the CAS awards invoked by ISU to oppose the damage claims raised by Pechstein. The Court leaves open the question of the damage claims, the partial ruling on the jurisdiction being susceptible to an appeal to the highest German civil Court, the BGH.

Towards a Gundel 2.0 for CAS: Reform or die!

The Pechstein Saga is not finished yet; an appeal to the BGH by ISU is to be expected. However, one should not underestimate the symbolic value of the Oberlandesgericht’s ruling and the threat it constitutes to the work of CAS. Indeed, if the ruling were to be confirmed by the BGH it would basically imply that CAS awards are unenforceable in German courts and that athletes may therefore (successfully or not) claim damages against the Sports Governing Bodies imposing sanctions on the basis of these awards. From the press release it remains unclear whether the decision is based solely on German antitrust law or also on EU antitrust law. Nonetheless, this decision might also be constructed as an abuse of a dominant position in the sense of article 102 TFEU and could gain validity in the EU as a whole. This would be a dramatic setback for sports arbitration, nothing short than the death of CAS.

But, it need not come to such extremity. As recognized by the Oberlandesgericht, the CAS fulfils an important function in the sporting world. It is a necessary institution to provide a level legal playing field when issues of doping or transfers are leading to acrimonious transnational disputes. Additionally, it also has advantages for the athletes, as it is usually perceived as cheaper and faster than state justice[10]. All of this is duly acknowledged in the decision. In short, what the German Court is asking for is an institutional reform of CAS. This restructuring would entail a fundamental reshuffling of the internal functioning of the CAS. Indeed, the German judges have identified the two main weak points of CAS, the forced arbitration coupled with its lack of independence[11]. The forced arbitration can be accepted if, and only if, the structural independence of CAS from the Sports Governing Bodies is warranted[12]. The challenge to CAS can be formulated as follows: cut the ties that bind you to the Sports Governing Bodies or we will not accept the validity of the arbitration clause underpinning your competence.

In fact, the CAS was at a fairly similar (less dramatic) crossroad after the Gundel case of the Swiss Federal Tribunal in 1993[13]. In the Gundel case, the SFT recognized the independence of CAS but also clearly indicated that it would not do so if the IOC were a party to a dispute in front of CAS. This led to what is known as the Paris agreement, an in depth structural reform of CAS[14]. Mainly, the ICAS was created to separate the management of CAS from the IOC. The SFT expressed its satisfaction with the reforms in its famous Lazutina case and blessed the CAS with the full recognition of its independence[15]. This, however, did not mean that the recognition of the independence of CAS was legally a given beyond Switzerland. To the contrary, it was (and is) still hotly debated in the literature[16]. Now, the German court basically says the Paris agreement is not enough, we need a new one, ensuring that athletes (and other stakeholders like clubs or supporters) get a true say in the ICAS. It is time for the CAS’s institutional structure to better reflect the diversity of actors affected by its decisions. If not, CAS awards will not be recognized in Germany and, by extension, the entire territory of the EU, thus leading the sports justice into a profound crisis.

[1] All the relevant legal documents are available on her website at http://www.claudia-pechstein.de/gerichtsunterlagen.php

[2] On the dispute see D. McArdle, ‘Longitudinal Profiling, Sports Arbitration and The Woman Who Had Nothing to Lose. Some Thoughts on Pechstein v International Skating Union”, available at https://dspace.stir.ac.uk/bitstream/1893/3356/1/Pechstein%20final.pdf

[3] Article S14 CAS Code, edition 2004

[4] The new article S14 CAS Code reads as follows:

« In establishing the list of CAS arbitrators, ICAS shall call upon personalities with appropriate legal training, recognized competence with regard to sports law and/or international arbitration, a good knowledge of sport in general and a good command of at least one CAS working language, whose names and qualifications are brought to the attention of ICAS, including by the IOC, the IFs and the NOCs. ICAS may identify the arbitrators with a specific expertise to deal with certain types of disputes. »

[5] Article R54 CAS Code 2004 (and 2014) reads as follows: “If three arbitrators are to be appointed, the President of the Division shall appoint the President of the Panel upon appointment of the arbitrator by the Respondent and after having consulted the arbitrators.”

[6] Article S6 par.2 CAS Code 2004 (and 2014)

[7] Article S4 CAS Code 2014 foresees that:
« ICAS is composed of twenty members, experienced jurists appointed in the following manner :

1.     four members are appointed by the International Federations (IFs), viz. three by the Association of Summer Olympic IFs (ASOIF) and one by the Association of the Winter Olympic IFs (AIOWF), chosen from within or outside their membership;

2.     four members are appointed by the Association of the National Olympic Committees (ANOC), chosen from within or outside its membership;

3.     four members are appointed by the International Olympic Committee (IOC), chosen from within or outside its membership;

4.     four members are appointed by the twelve members of ICAS listed above, after appropriate consultation with a view to safeguarding the interests of the athletes;

5.     four members are appointed by the sixteen members of ICAS listed above, chosen from among personalities independent of the bodies designating the other members of the ICAS. »

[8] The current president, Corinne Schmidhauser, is a member of the Legal Committee of the Fédération Internationale de Ski (International Ski Federation). It is surely telling that Thomas Bach, the current IOC president, was her predecessor at that post.

[9] The first instance Court (Landesgericht München) considered that due to Pechstein’s appeal and lack of contestation of the CAS’s competence, the award had gained res judicata effect. See paragraphs  IV.2) of the judgment.

[10] A point made by D. Yi, ‘Turning medals into metal:  Evaluating the Court of Arbitration for Sport as an International tribunal’, available at http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1024&context=student_papers

[11] Antonio Rigozzi has highlighted these weaknesses in his Phd thesis, see A. Rigozzi L’arbitrage international en matière de sport, Bruylant, 2005, pp.273-349 and 421-426. See also, M. Maisonneuve, L’arbitrage des litiges sportifs, L.G.D.J, 2011, pp. 141-221 and pp. 267-313.

[12] In principle the Swiss Federal Tribunal has a similar view outlined in the Cañas case (4P.172/2006), but it considers that the CAS already offers « sufficient guarantees of independence and impartiality » (par. 4.3.2.3.). Thus, its assessment of the CAS’s independence is diametrically opposed to the one conducted by the Oberlandesgericht.

[13] Decision 4P.217/1992 of 15 March 1993 (Gundel v FEI), ATF 119 II 271, translated in CAS Digest I,.p. 545

[14] For an introduction on the Paris agreement see, http://www.tas-cas.org/en/general-information/history-of-the-cas.html#c74

[15] Decision 4P.267–270/2002 du 27 mai 2003, Lazutina c. CIO, ATF 129 III 445, Bull. ASA 2003, p. 601

[16] For a recent contribution to this debate see A. Vaitiekunas, The Court of Arbitration for Sport : Law-making and the question of independence, Stämpfli Publishers, 2014 

Last week, the French newspaper Les Echos broke the story that UEFA (or better said its subsidiary) will be exempted from paying taxes in France on revenues derived from Euro 2016. At a time when International Sporting Federations, most notably FIFA, are facing heavy criticisms for their bidding procedures and the special treatment enjoyed by their officials, this tax exemption was not likely to go unnoticed. The French minister for sport, confronted with an angry public opinion, responded by stating that tax exemptions are common practice regarding international sporting events. The former French government agreed to this exemption. In fact, he stressed that without it “France would never have hosted the competition and the Euro 2016 would have gone elsewhere”.

This is not the first time that UEFA is exempted from paying taxes in a host country. For example, for the Euro 2012, UEFA was not subject to direct taxation in Poland.[1] Similar conditions were also part of the application procedures for Euro 2004 and Euro 2008, but is up to the host country to decide how it fulfils the tax exemption requirement of UEFA.

On 12 November 2014 the French council of ministers approved a draft legislation that would provide a fiscally advantageous solution for organisers of international sporting events. The law still needs to be approved by the parliament where it is facing strong political opposition. The organisers of the 2015 European basketball Championships, the 2018 Ryder Cup (golf), and of the football Euro 2016 would be fully exempted from paying direct taxes. However, it is unlikely that the French organisers of the yearly held Tour de France (cycling) and Roland Garros (tennis) will enjoy the same privilege. Even though the legislation is not specific to the Euro 2016, many critics hold that the main reason for introducing this legislation was to satisfy UEFA’s demands.

Regarding the Euro 2016, a special joint-stock company has been created called Euro 2016 SAS. 95% of the shares of this company are owned by UEFA, the remaining 5% by the French Football Federation (FFF). Euro 2016 SAS is responsible for organising the competition itself, related events, and the promotion of the events.[2] The board includes UEFA officials, FFF officials, and French government officials. According to the French minister, Euro 2016 SAS will be exempted from direct and related taxes (corporate tax, income tax, payroll tax, etc.). VAT, however, must still be paid. Allowing Euro 2016 SAS to be exempted from paying direct taxes comes at a time when most EU Member States, including France, are forced to introduce austerity measures. Interestingly, it also comes at a time when the European Commission is becoming increasingly active in dealing with matters related to State aid and taxation. In February 2014, former taxation and customs union Commissioner, Algirdas Šemeta, stated that competition policy in general and State aid law in particular could “greatly reinforce our tax policy work.” He also said that pursuing cases under competition rules could make a real difference as they can be enforced directly on the basis of the EU Treaty. Since this statement, the Commission has opened numerous investigations into alleged State aid received through tax schemes.[3] These cases include alleged aid provided by Ireland to Apple, aid provided by the Netherlands to Starbucks and aid provided by Luxembourg to Amazon. Last week’s LuxLeaks scandal, concerning specific tax deals offered to multinationals by the Luxembourg State, has put State aid and tax policy high on the political agenda. Our analysis is embedded into this broader context, which is decisive in understanding the potential readiness of the Commission to tackle selective fiscal State aid measures. In the following paragraphs we will engage in a substantial analysis of a hypothetical State aid investigation by the EU Commission into the suggested tax exemption offered to UEFA by the French State.

In order for a measure to be considered unlawful State aid it has to fulfil the criteria stipulated in Article 107 (1) TFEU.[4] However, with respect to tax measures, the key question will generally be whether the tax measure is selective.[5] In this regard, when considering whether a measure is selective, and consequently constitutes State aid, the effects on the market are taken into account and not the causes or aim of that measure.[6]

According to settled case-law, the material selectivity of tax measures should normally be assessed by following a three-step analysis.[7] Firstly, the system of reference has to be identified. The system of reference constitutes the framework against which the selectivity of a measure is assessed. It is a consistent set of rules generally applicable to all undertakings falling within its scope as defined by its guiding principle.[8] Secondly, it should be determined whether the given measure constitutes a derogation from the system of reference insofar as it differentiates between economic operators who, in light of the objective intrinsic to that system, are in a comparable factual and legal situation. In the case at hand one can think of other sporting or cultural events held in France. If the measure in question indeed derogates, it still needs to be verified in the last step of the test whether the derogatory measure is justified by the nature or the general scheme of the system.[9] If a prima facie selective measure is justified by the nature or the general scheme of the system, it will not be considered selective and thus fall outside the scope of Article 107(1) TFEU.[10]  

1. System of reference

The French corporate tax (impôt sur les sociétiés) is a standard tax with a rate of approximately 33% that applies to all resident companies in France and that affects all profits made in France by the resident companies. The guiding principle of the corporate tax system would consist in levying taxes on all undertakings generating profit in France.  

2. Is the measure a derogation from the system of reference?

In principle, all undertakings based in France that make a profit are liable to pay the French corporate tax. Similarly, workers and employers based in France are liable to pay the French payroll tax. The sole fact that a new legislation would allow undertakings such as Euro 2016 SAS to be exempted from paying corporate tax and payroll tax derogates from the abovementioned system of reference. Even if one were to assume that international sporting events are subject to a specific system of reference, exonerating their organisers from all direct taxes, this would still be at odds with the fact that undertakings such as Amaury Sport Organisation (the French organiser of the Tour de France) would not be exempted from paying taxes.  In short, at this stage, the measure seems to be prima facie selective.  

3. Is the measure justifiable by the nature or the general scheme of the reference system?

 A prima facie selective aid measure can still be found justified in light of the logic of the system of reference.[11] It has to be borne in mind that a Member State is free to shape the fundamental aspects of its tax system by determining the taxable situations, the tax rate and tax base. Art. 107 (1) TFEU does not prevent the Member State from introducing, reducing or abolishing a tax in order to further its economic aims.[12] It is, however, for the Member State, which has introduced a prima facie selective measure, to show that it is actually justified by the nature and general scheme of the system in question.[13]

It is likely that the French authorities will argue that the measure was introduced to facilitate the organisation of international sporting events to be held on French territory. Organisations responsible for the choice of the host of an international sporting event, such as UEFA or the IOC, need incentives to select France as a host nation. Yet it is doubtful that this could constitute an acceptable justification for the whole scheme. It would imply accepting targeted fiscal dumping as a viable strategy to raise competitiveness, opening the door to a ‘beggar thy neighbour’ policy. Moreover, this tax policy is not aimed at targeting all sports events, i.e. to encourage the practice of sport or any other objective of general interest. Therefore, the Commission is unlikely to accept that it fits into the nature and general scheme of the reference system.

Nonetheless, the French government still believes that the measure is justifiable for a number of reasons. The former French minister for sport, Jean-François Lamour, admitted that hosting mega sporting events always cost more than they generate, and that those who say the opposite are mistaken. However, he also stated that hosting Euro 2016 would serve as an “economic accelerator that can boost the French economy.”[14] “This tax exemption may shock”, admits another former minister for sport, David Douillet, “but it should be considered as an investment, since nearly 3 million visitors are to be expected”. Moreover, “hosting the tournament creates about 20.000 jobs in the construction sector alone. The measure will allow France to host major international tournaments and ensures that they are not organised only in countries that have the means to afford them. In the case of Euro 2016, UEFA will donate €20 million to the host cities, pay €23 million rental money for stadiums and will participate for an amount of €20 million in shares of the French Football Federation regarding amateur football”[15], says the French minister for sport Patrick Kanner. Lastly, as stated in the introduction, Mr. Kanner also held that “France would never have hosted the competition and the Euro 2016 would have gone elsewhere”, had it not agreed to the conditions set by UEFA. Justifications, such as the ones listed here, may be compatible with EU law if it facilitates the development of certain economic activities where such aid does not adversely affect trading conditions to an extent contrary to common interest. Furthermore, the measures must have a clear objective of common interest in order for them to be justified.

According to the French newspaper Le Monde, France has already invested nearly €1.6 billion in the construction and renovation of stadiums and has spent €400 million in access and transport infrastructures for Euro 2016.[16] In Commission Decision SA.35501 Financement de la construction et de la rénovation des stades pour l’Euro 2016, the Commission assessed the public money spent on infrastructure and declared the spending compatible with EU law under Article 107 (3)c) TFEU.[17] The Commission took into account Article 165 TFEU and concluded that the public spending was aimed at a well-defined objective of common interest. It also accepted that there was a public need for the modernisation and enlargement of the stadiums, and that this would not occur without State intervention.

It is important to note, however, that the case at hand describes a different State intervention, namely a specific tax exemption for Euro 2016 SAS. Can arguments raised to justify public spending on infrastructure (i.e. job creation, promotion of France, market failure, cultural, and recreational considerations, etc.) be used analogically to justify a tax exemption? Indeed, there is a direct link between the State’s decision to spend public money in constructing infrastructure and the creation of 20.000 jobs in the construction sector, but not between the legislation allowing tax exemptions and the same job creation. The foregone tax money is not going to be directly re-invested in France, not even in the EU, but is ultimately going to go to a Swiss association: UEFA. The link between the need for the tax exemption and the benefits derived from the EURO2016 can only be made relying on the need to bow to UEFA’s illegitimate blackmail: ‘you’ll get the EURO (and the jobs and exposure hereto tied) only against a fiscal gift’. It is therefore unlikely that the measure at hand fulfils an objective of common interest and would be compatible with Article 107 (3)c) TFEU. 

Usually a negative state aid decision is seen as a backlash for a Member State. However, in UEFA’s tax exemption case, it might be a benediction. It would have positive effects not only for France, but also for all EU Member States, putting a definitive end to UEFA’s blackmailing. A clear precedent would be set and all the organisers of international sporting events taking place in the EU, whether FIFA World Cups, Olympic Games or else, would finally have to comply with tax laws just like anyone else.

[1] Karolina Tetlak and Dick Molenaar, “Tax Exemptions for Euro 2012 in Poland and Ukraine”, European Taxation, June 2012, page 328

[2] The French government and local authorities, on the other hand, are to provide the sites, infrastructure, public services and transportation. They are also responsible for public safety, and for promoting the country and host cities

[3] Timothy Lyons, “The modernisation of EU state aid law and taxation”, British Tax Review, 2014, 2, pages 113-114

[4] (1) The measure has to be selective; (2) granted through State resources; (3) it has to confer an economic advantage upon the recipient; and; (4) it must distort or threaten to distort competition and must have the potential to affect trade between Member States.

[5]  OJ C 384 of 10 December 1998, Commission Notice on the Application of the State Aid Rules to Measures relating to Direct Business Taxation, para. 3

[6] Case C-279/08 P, para. 51; Commission Decision SA.34914, para. 29

[7] See e.g. Joined Cases C-78/08 to C-80/08, Paint Graphos and others [2011], para. 49; Commission Decision SA.34914 - Alleged aid granted to offshore companies – Gibraltar Income Tax Act 2010, para. 28

[8] Commission Decision SA.34914, para. 31

[9] See e.g. Case C-279/08 P, Commission v Netherlands (NOx) [2011], para.62

[10] Joined Cases C-106/09 P and C-107/09 P, Commission and Spain v Government of Gibraltar and United Kingdom [2011], para. 36

[11] Commission Decision SA.29769, State aid to certain Spanish football clubs, para. 15

[12] Conor Quigley, “The notion of State aid in the EEC” [1988] European Law Review, pages 242 and 245

[13] Case T-211/05, Italy v Commisison, para.125

[14] Euro 2016: pourquoi offrir un cadeau fiscal à l’UEFA? Le Monde, 5 November 2014

[15] La France n’aurait pas eu l’Euro 2016 si elle n’avait pas défiscalisé l’UEFA, Le Monde, 5 November 2014

[16] Ibid

[17] Article 107 (3)c):Aid to facilitate the development of certain economic activities or of certain economic areas, where such aid does not adversely affect trading conditions to an extent contrary to the common interest may be considered to be compatible with the internal market.