15.7.2019

Official Journal of the European Union

C 238/11

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(Case C-362/19 P)

(2019/C 238/14)

Language of the case: Spanish

Parties

Appellant: European Commission (represented by: P. Němečková, B. Stromsky and G. Luengo, acting as Agents)

Other parties to the proceedings: Fútbol Club Barcelona and Kingdom of Spain

Form of order sought

The appellant claims that the Court of Justice should:

—set aside the judgment under appeal;

—refer the case back to the General Court of the European Union;

—reserve the costs.

Grounds of appeal and main arguments

The General Court erred in law in its interpretation of Article 107(1) of the Treaty and, in particular, in its interpretation of the concept of the advantage of State aid and the Commission’s duty to assess whether there is such an advantage. That single ground of appeal is divided into two parts, which derive from the error of law identified:

—First, the Commission submits that the General Court erred in finding that the examination to determine whether a particular tax regime confers an advantage on its beneficiaries requires not only an analysis of the inherent and well established criteria of the regime being examined, which may place the beneficiaries in a more favourable position in comparison with other undertakings subject to the general regime, but also that that assessment also requires the analysis of unfavourable elements caused by variable circumstances outside the regime in each tax year, even when those unfavourable elements are uncertain and cannot systematically negate the advantage and that, furthermore, they cannot be foreseen in an ex ante review of the regime.

—Second, including on the basis of that incorrect assessment of the concept of advantage, the General Court misinterpreted the Commission’s due diligence obligation in the context of the examination of the existence of a State aid system, and erred in law with regard to the burden of proof which the Commission has in showing that there is an advantage in this case.

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