EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

creation of the Super League, based on the exclusive power of authorisation, is both a decision of an association of undertakings and an agreement between the two. The dual function of organising and authorising competitions naturally implies a conflict of interest. It enables the association to select or eliminate its competitors. In the ISU case, the GC emphasised that a restriction by object is present if all competition on the relevant market is eliminated and if the decision is sufficiently harmful to the functioning of competition (T-93/18 ISU , para. 82). Due to the lack of legitimate objectives and the severity of the penalties, the Court found such a restriction by object on the part of ISU (T-93/18 ISU , paras. 77 et seq.). In its statutes, UEFA merely refers to the FIFA Regulations Governing International Matches with regard to the approval requirements for new competitions (Article 49(3) UEFA Statutes). However, as each sport is different, the sanctions foreseen and the objectives pursued cannot be compared one-to-one. It cannot be assumed or inferred that the primary objective of UEFA was to restrict competition and hinder market access for new entrants, rather than to improve the sport. In any case, the protection of a commercial interest does not in itself amount to a restriction by object (in ISU , the Commission was wrong to imply this). However, there is no doubt that UEFA’s decision has the effect of restricting competition, as competitors will not be able to enter the market and compete effectively if they have to seek authorisation from the only association active in the market. The issue is not so much the right of a sport governing body to decide which third-party events may take place, but rather that the conditions for authorisation must be based on objective, transparent and non-discriminatory criteria. With regard to Article 102 TFEU, the question of the existence of a dominant position does not even arise, because it is clear that sport governing bodies have a monopoly position in the sport they regulate and organise, so too UEFA and FIFA with a market share of 100% (cf. T-83/91 Tetra Pak , para. 109). The Court has previously clarified that the organisation of competitions in a specific sport sector can be regarded as the relevant market (T-93/18 ISU , paras. 115-119). In the case of UEFA and FIFA, the relevant market is the organisation and regulation of football competitions in Europe and at international level. Therefore, only the question of abuse of this dominance is relevant. There is no doubt that UEFA and FIFA have sufficient economic power to prevent effective competition (see also C-457/10 P AstraZeneca , para. 175). Again, the fact that the only active market player decides whether and which competitors can enter the market and compete effectively or not makes it highly unlikely that it will ever allow competition that jeopardises its own leagues. Moreover, the authorisation mechanism is not subject to further review and is therefore exposed to arbitrary use. Hence, UEFA and FIFA can be considered to have abused their (collective) dominant position.

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