EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Bosman ; C-519/04 P Meca-Medina ; T-93/18 ISU ). The Lisbon Treaty established in Article 165 a supporting EU competence for “developing the European dimension in sport” and for “the promotion of European sporting issues, while taking into account the specific nature of sport, its structures […] and its social and educational function”. This provision preserves the autonomy of sport governing bodies as it does not foresee the possibility of harmonising legislation. However, the terms “fairness” and “openness” can be interpreted as a means of challenging the traditional sport rules and regulations and aligning them to EU law. Moreover, according to Article 3(3) of the Treaty on European Union (TEU) in conjunction with Article 26(2) of the Treaty on the Functioning of the European Union (TFEU), any national practice that hinders the development of the internal market falls within the scope of EU law. Consequently, in its Meca-Medina ruling, the European Court of Justice (CJEU) rejected an a priori exclusion of competition law for sport and clarified that Articles 101 and 102 TFEU are fully applicable to cases concerning the regulation or organisation of sport (C-519/04 P Meca-Medina , para. 27). Similarly, the Commission states in its White Paper on Sport that “sport is subject to the application of the acquis communautaire ” and that “European policies in a number of areas already have a considerable and growing impact on sport” (Commission, 2007a, p. 2). In April 2021, several European football clubs announced the creation of and their participation in a breakaway league, the Super League, which would be the first annual European competition outside the Union of European Football Associations (UEFA), the governing body of European football. Accordingly, these clubs would remain members of the national leagues but no longer participate in UEFA’s Champions League. UEFA and the Fédération Internationale de Football Association (FIFA) have tried to prevent this on the basis of their statutes by initiating disciplinary proceedings and threatening sanctions against the clubs and their players, such as temporarily excluding the teams from European competitions and banning the players from representing their national teams (UEFA [online], 2021). The Commercial Court of Madrid has issued an injunction prohibiting UEFA and FIFA from taking punitive measures of any kind against the clubs or players involved. Although the discussion is off the table for the time being, it will not disappear as the Spanish Court has referred preliminary questions to the CJEU on the compatibility of those football regulations and the monopoly for the exploitation and organisation of international competitions with EU competition law (C-333/21 European Superleague Company , pending). The ISU ruling delivered by the General Court (GC) in December 2020 concerned similar issues. In both cases, the question is whether the monopoly of a sport governing body, which has a supervisory and disciplinary function for all European competitions, and its decision not to authorise a competition, are

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