EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

3.1 Existing CJEU Case Law and Commission Decisions In the absence of EU competence, there is no truly European sports law. The current regulation of sport governing bodies and their rules is based on a patchwork of CJEU decisions. This paper focuses on the most important and ground-breaking decisions. The Walrave ruling of 1974 is the first case of the CJEU to address the compatibility of sports practices with the demands of EU law. The Court held that EU law applies to sport insofar as it constitutes an economic activity (C 36/74 Walrave , para. 4). Consequently, issues of purely sporting interest are excluded from its scope. The assumption that sport and economic activity can be clearly separated was refuted in the following years. More than 20 years later, the Court was again confronted with a sports case in its Bosman judgment. In this case, it confined its analysis to free movement provisions. An important outcome of the case is that the Court excluded the absolute immunity of sports regulations from EU law and thus an unconditional autonomy of sport governing bodies (C-415/93 Bosman , paras. 76 and 127). Nevertheless, the Court accepted certain special characteristics of sport as legitimate and therefore as a justified restriction (C-415/93 Bosman , para. 106). The judgment in the Deliège case amounts in principle to the same conclusion (C-51/96 and C-191/97 Deliège , paras. 64 and 69). The cases after Bosman and Deliège concerned mainly the application of competition law to sport, rather than the free movement rules. The CJEU’s Meca-Medina ruling is the landmark case for the application of competition law to sports issues. Two swimmers were banned from competition for a period of two years after failing a doping test. The Court ruled that the sanctions imposed by the sport governing body for the violation of its anti-doping rules were prima facie contrary to competition law, in particular Article 101 TFEU, as they were capable of producing restrictive effects on competition, excluding the athletes from sporting events (C-519/04 P Meca-Medina , paras. 40 et seq.). However, as the sanctions were necessary for a healthy sport and healthy players, they were held to be reasonable and proportionate and thus justified (C 519/04 P Meca-Medina , para. 45 applying the Wouters test). The Court reiterated that the objectives of the rules must be assessed in concreto (C-519/04 P Meca Medina , para. 42). Furthermore, the Court rejected once and for all the sporting exception (C-519/04 P Meca-Medina , para. 27). Article 102 TFEU only really came into play in the MOTOE judgment, where a sport governing body was alleged to have infringed Article 102 TFEU by organising and commercially exploiting motorcycling events and refusing to grant its consent to a competition organised by MOTOE. The Court found a dominant position on the market for the functionally complementary organisation of motorcycling events in connection with their economic exploitation in Greece and an abuse of that

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