EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

3.2.1 Undertaking v Association of Undertakings Article 101 TFEU applies to undertakings and associations of undertakings, while Article 102 TFEU applies to undertakings. The question is whether sport regulatory bodies can be classified as either. An undertaking is defined as an entity engaged in an economic activity (C-41/90 Höfner , para. 21). An economic activity, in turn, can be defined as an activity consisting in offering goods or services (for remuneration) (C-35/96 Commission v Italy , para. 36, C-413/13 FNV , para. 27). Therefore, when sports associations engage in commercial activities, they are to be considered as undertakings. In the sports industry, commercial activities take place at various levels. Sport governing bodies are generally considered as undertakings as they have numerous sources of income (Commission, 2007b, chapter 3.2.). FIFA and UEFA, for example, perform economic functions that include the conclusion of advertising and broadcasting contracts or the commercial exploitation of sporting events (IV/33.384 and IV/33.378 Distribution of package tours during the 1990 World Cup , paras. 47 – 48; Commission, 2007b, chapter 2.1.3.). Moreover, the national associations under the umbrella of UEFA form an association of undertakings by virtue of their economic activity (similar to UEFA), which in turn are associations of undertakings uniting different clubs (see e.g., COMP/C.2-37.398 Joint selling of the commercial rights of the UEFA Champions League ; Van Rompuy, 2021, p. 835). In Piau , the Commission confirmed that sports federations can be both undertakings and associations of undertakings (T-193/02 Piau , paras. 68 – 72). But do the regulatory functions of sport governing bodies constitute an economic activity at all? Even though the regulatory activity cannot be unequivocally regarded as an economic activity, it has previously been held that the concept of an undertaking does not presuppose a profit-making intention, but only potential competition with other products or services on the market (C-49/07 MOTOE , para. 28). Moreover, the cultural and social function of the activities is not sufficient to negate their economic character (see e.g., C-237/04 Enirisorse , para. 34). Therefore, the exclusion of regulatory functions from the scope of commercial activities and thus from competition law provisions cannot be supported. Exceptions to the notion of undertaking, such as the delegation of public tasks or the performance of exclusively social tasks, are not further explored in this paper. 3.2.2 Restriction of Competition and Abuse of Dominance A further condition of Article 101(1) TFEU is that a restriction must result from an agreement between undertakings or from a decision of an association of undertakings. The rules established by sport governing bodies can easily be considered as agreements or decisions by undertakings or associations of undertakings. In this sense, the decision of UEFA and FIFA to prohibit the

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