EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

3.2.3 Justification and Proportionality Restrictions of competition and abuse of dominance can still be justified in a next step. In this respect, the Wouters case set important standards. Wouters did not deal with a sports-related case, but with a Dutch ban on partnerships between lawyers and accountants and its compatibility with Article 101 TFEU. The Court found a restriction of competition, while emphasising the importance of the overall context in which a decision is taken, the objectives pursued and the analysis of whether such restrictive effects are proportionate and inherent in the pursuit of those objectives (C-309/99 Wouters , paras. 94–97). The Court concluded that the restrictive effects were proportionate in view of the special nature of the legal profession (C-309/99 Wouters , paras. 109–110). The Wouters test should not be regarded as a rule of reason analysis, since the balancing of anti- and pro-competitive effects is reserved for Article 101(3) TFEU. The test already applies under Article 101(1) TFEU. So far, it has only been applied to cases involving Article 101 and not Article 102 TFEU, but should be applied by analogy. Applied to the sport sector, the practices and decisions of associations of undertakings fall outside the scope of competition law if they are inherent in and proportionate to the pursuit of a legitimate aim, such as the maintenance of a proper structure and organisation of sport (Weatherill, 2021, pp. 10 and 18–19). Thus, the Wouters test provides flexibility to take into account the special characteristics of sport and public interest considerations. In this context, the Commission has identified, inter alia , ensuring fair sporting competitions and the uncertainty of outcomes as legitimate objectives (Commission, 2007b, chapter 2.1.5.).The Wouters test was already applied in the ENIC/UEFA Commission decisions relating to the rule limiting investment to one club participating in UEFA competitions. ENIC, the investor in six different football clubs, considered that this rule distorted competition. The Commission rejected the complaint based on the Wouters test and the Meca-Medina case, concluding that the rule was indispensable, albeit restrictive (AT.37806 ENIC/UEFA , paras. 27 et seq.). It is likely that the CJEU will refer to the Wouters test in its preliminary ruling on the Super League. The argument of the Super League founders is that only the strongest teams can compete, which guarantees high quality matches and great public attention. The danger of match fixing or manipulative betting is not greater. The rules of football are not changed and the physical integrity of the athletes is not endangered. Last but not least, financial solidarity is preserved through solidarity payments to the national associations (C-333/21 European Superleague Company , request for a preliminary ruling). In view of the high economic stakes and the exclusivity of members, UEFA can claim that it pursues legitimate interests and objectives which justify its decision. These include safeguarding the integrity of the sport, preserving the open nature of football

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