The world of professional cycling and doping have been closely intertwined for many years. Cycling’s International governing Body, Union Cycliste Internationale (UCI), is currently trying to clean up the image of the sport and strengthen its credibility. In order to achieve this goal, in January 2014 the UCI established the Cycling Independent Reform Commission (CIRC) “to conduct a wide ranging independent investigation into the causes of the pattern of doping that developed within cycling and allegations which implicate the UCI and other governing bodies and officials over ineffective investigation of such doping practices.”[1] The final report was submitted to the UCI President on 26 February 2015 and published on the UCI website on 9 March 2015. The report outlines the history of the relationship between cycling and doping throughout the years. Furthermore, it scrutinizes the role of the UCI during the years in which doping usage was at its maximum and addresses the allegations made against the UCI, including allegations of corruption, bad governance, as well as failure to apply or enforce its own anti-doping rules. Finally, the report turns to the state of doping in cycling today, before listing some of the key practical recommendations.[2]

Since the day of publication, articles and commentaries (here and here) on the report have been burgeoning and many of the stakeholders have expressed their views (here and here). However, given the fact that the report is over 200 pages long, commentators could only focus on a limited number of aspects of the report, or only take into account the position of a few stakeholders. In the following two blogs we will try to give a comprehensive overview of the report in a synthetic fashion.

This first blogpost will focus on the relevant findings and recommendations of the report. In continuation, a second blogpost will address the reforms engaged by the UCI and other long and short term consequences the report could have on professional cycling. Will the recommendations lead to a different governing structure within the UCI, or will the report fundamentally change the way the UCI and other sport governing bodies deal with the doping problem? 

Relevant findings

Different forms of doping have been around since the earliest days of cycling (1890’s), but it was the introduction of Erythropoietin, or EPO, in the professional peloton that brought the problem of doping to new levels. Taking it enabled an athlete to gain a significant competitive advantage that could range between 10 and 15%.By using EPO, a rider is able to increase the blood’s oxygen carrying capacity, to stimulate muscle growth and aid muscle recovery.[3] However, the use of EPO thickens the blood, and race dehydration concentrates the blood further, which can cause clotting, stroke or heart failure.[4] In fact, there is widespread suspicion that EPO caused the deaths of up to 20 cyclists between 1987 and 1990. Even though cyclists started using forms of EPO as far back as the 1980’s, it was not until 2001 that a reliable detection test for EPO was developed. This meant that professional cyclists were able to use EPO for over a decade with very little chance of getting caught. The exact percentage of professional cyclist using EPO remains unknown, but it is very likely that this figure was well above 50%. “Doping became the norm in the peloton, not only to increase performance but also just to keep up with the rest of the peloton”.[5]

One of the main findings of the report is the revelation that the UCI’s past policy regarding anti-doping was primarily aimed at protecting the health and safety of the riders and not trying to curtail the use of doping all together from (professional) cycling. This is especially evident from the way it chose to combat EPO. In 1997, UCI introduced the “No Start Rule”. Under the rule, the UCI carried out blood tests before and during competition and any rider with a haematocrit reading higher than 50% (when natural levels are normally between 40 and 45%) was deemed unfit for competition and prevented from competing for 15 days from the date of the test.[6] The UCI stated that the purpose of this rule was to protect riders’ health and safety and to prevent further deaths from EPO. It was not an anti-doping rule, but a health and safety measure. However, the problem with this measure is that it allowed the use of EPO, and therefore doping, to a certain extent. Furthermore, given that the advantage gained from EPO was so significant, the riders were in fact obliged to use EPO simply to keep up, let alone to win.

In order to understand the UCI’s position in this matter, the report explains in full detail the facts that led up to this situation. In doing so, it also addressed the questions whether UCI officials directly contributed to the development of a culture of doping in cycling.[7] It has to be borne in mind that as an umbrella sporting organisation, the UCI was for many years an institution with a minimal structure and no real power. When Hein Verbruggen became president of the UCI in 1991, the UCI had less than 15 employees and very little revenue. The UCI itself does not organise the major cycling event such as the Tour de France. In fact, the organisation that organises the Tour (Amaury Sport Organization) enjoys a dominant position and is economically much more powerful than UCI.[8]

With the inclusion of professional cycling in the Olympic games of 1996, revenue redistributed by the IOC became substantial, while the proceeds derived from TV rights increased dramatically for the UCI. To further boost its revenues, the UCI needed a “big star” to attract broadcasters and sponsors.[9] Lance Armstrong, being outspoken, charismatic and, above all, a cancer survivor, was exactly the type of “big star” it was looking for. The timing of Armstrong’s comeback in professional cycling (1998/99) could not have been better, since the image of cycling and its main event, the Tour de France, were at an all-time low after the “Festina affair” of 1998.[10]

The report shows well the UCI’s conflict of interest during the Tour de France of 1999: On the one hand, it wanted to eliminate doping from the sport, especially after the “Festina affair” a year earlier; on the other hand, it wanted to make the sport more appealing to the public and for that it required the presence and victory of a hero: Lance Armstrong. The practical meaning of this conflict of interest became apparent during that same Tour. Armstrong was tested positive four times for corticosteroids that was forbidden under the UCI Anti-Doping Rules.[11] Armstrong justified the positive tests by submitting a medical certificate that was provided after the tests. According to the UCI’s own rules, the medical certificates should have been handed in prior to the tests. Had the UCI applied its rules, Armstrong would have received a sanction for violating anti-doping rules, which would have resulted in him not being allowed to win the Tour of 1999, the first of his seven Tour victories. [12]  

Apart from UCI decisions concerning Armstrong, it becomes evident from the report that the UCI took a number of controversial decisions regarding doping violations which, in hindsight, should have been dealt with differently. However, to answer the question why the UCI made these decisions, it is necessary to understand how the UCI made these decisions. As mentioned above, it is clear that the conflict of interest regarding the UCI’s objectives was a prime factor in the choices made. However, it was also the UCI’s governing structure that allowed for such decisions, especially the way the UCI dealt with its anti-doping policy.

In 1992, the UCI set up an Anti-Doping Commission (ADC). The ADC was headed originally by a lawyer, Werner Goehner. He was succeeded by the ADC’s first Vice-president, Lon Schattenberg, an occupational therapist, in 2003. It has been reported that Schattenberg de facto ran the ADC from the start. Furthermore, even though the ADC was composed of three members in total, it was Schattenberg who effectively ran the whole Commission. The conflict of interest is further substantiated in the report when it stresses that the focus of Schattenberg’s work was on health concerns rather than on disciplinary aspects of doping. His view was that trying to catch the doped cyclists amounted to a witch hunt.[13] In other words, between 1992 and 2006, most, if not all, of the Anti-Doping Commission’s decisions were taken by one man whose primary aim was to protect the riders’ health rather than catching and sanctioning the doped cyclists.

Similarly, the report emphasised the prime role of the UCI President Hein Verbruggen (1991-2005) as regards the UCI’s governance structure. Due to the passive nature of the large majority of the UCI’s governing bodies, the president had a wide range of executive powers. In the CIRC’s view this led to serious problems of governance and deficiencies in internal control processes. By way of example, Verbruggen, with the agreement of the majority of his colleagues on the Management Committee, chose his successor (Pat McQuaid) and managed to secure his election.[14] Moreover, even though Schattenberg’s ADC was formally considered independent, Hein Verbruggen was not only informed of all relevant anti-doping matters, he also interfered in the decision-making of the anti-doping Commission. As is stated in the KPMG report on UCI Governance and Independence Assessment (2013), “(t)he President has taken many decisions alone or based on external advice during critical times…Critically important matters…are taken solely by the President.”[15] 

The report further notes that Mr. Verbruggen was constantly in conflict with WADA and its leadership. The importance of these conflicts when answering the question how the UCI made its decisions should not be underestimated. The first WADA Code, implemented in 2004, included the standard sanction of two years of ineligibility in case of a first Anti-Doping violation. Nonetheless, the UCI (read: Verbruggen) opposed the standard sanction and lobbied for much lower sanctions. It should be noted that, as the “new kid on the block”, the role and power of WADA in relation to sports federations in general and the UCI in particular was unclear. According to the UCI, WADA’s function was to assist sports federations, but not to interfere with internal matters or criticise their governance or anti-doping policy. Any interference or criticism by WADA in relation to UCI’s anti-doping policy was perceived by the UCI leadership as completely unacceptable and seemed to have been interpreted as a personal attack.[16]  

Conclusion

The goal of this report was to investigate the causes of the pattern of doping that developed within professional cycling over the last decades, especially taking into account the role of the UCI, and to recommend better ways of tackling doping problems in the future.

According to the report, the UCI’s role in the widespread use of doping in cycling was fundamental in several ways. Firstly, during the heydays of EPO the UCI was primarily focused on protecting the health and safety of the riders, rather than trying to eliminate the use EPO in the peloton. Secondly, the UCI’s objective of forming professional cycling into a global money-making sport had an impact on enforcing anti-doping rules. This became especially evident after Lance Armstrong’s comeback. Even though Armstrong took forbidden substances during the Tour de France of 1999, the UCI decided not to sanction him. Armstrong was the “big star” the UCI needed to further increase revenues, and a sanction would have been counterproductive in this regard. A third major element that allowed for doping to flourish was the UCI’s governing structure. The executive dominance of the UCI President Hein Verbruggen caused great deficiencies in the UCI’s internal control process. Moreover, the lack of collaboration with WADA was instrumental in delaying the full implementation of the WADA Code. 

The Report is in interesting plunge in the world of cycling at the turn of the century. It highlights the systematic failure of sports organisation to truly engage in the fight against doping. Indeed, both the fundamental objectives and the basic governance structure of the UCI seem to have run counter any attempt to deal efficiently with the recourse to doping of the cycling stars. This is a potent lesson, for doping seems to be as much a product of the institutional and economical system in place in a particular sport as of the malign intentions of the athletes. 

Having deciphered the main reasons that caused the pattern of doping, the report consequently outlined a set of recommendations. An analysis of these recommendation as well as the reforms the UCI has already undertaken shall be discussed in a second blog.

[1] CIRC Report to the President of the UCI, page 6

[2] Ibid

[3] CIRC Report to the President of the UCI, page 57

[4] Ibid, page 33

[5] Ibid, page 41

[6] Ibid, page 35-36, a haematocrit reading measures the percentage of red blood cells in blood. As EPO stimulates the production of red blood cells, an elevated haematocrit reading above 50% is “a strong indication of EPO use”.

[7] Ibid, page 90

[8] Ibid, page 91

[9] Ibid, page 91-92

[10] The affair concerned a large haul of doping products found in a car of the Festina cycling team just before the start of the Tour de France of 1998. The investigation revealed systematic doping, and suspicion was raised that there may have been a widespread network of doping involving many teams of the Tour de France.

[11] These rules state that “the use of corticosteroids is prohibited, except when used for topical application (auricular, opthmalogical or dermatological) inhalations (asthma and allergic rhinitis) and local or intra-articular injections. Such forms of utilisations can be proved with a medical prescription”.

[12] CIRC Report to the President of the UCI, page 171-173

[13] Ibid, pages 98-100

[14] Ibid, page 97

[15] Ibid, pages 104-105

[16] Ibid, page 108

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.