EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

the field in which some of the similar observations have been present (Weatherill, 2014c, pp. 302–308; Van Rompuy, 2015 pp. 206–208; Duval, Van Rompuy, 2016, pp. 256–257; Pijetlovic, 2016, pp. 127–128; Szyszczak 2018, p. 281; Duval 2020, p. 33) – mainly due to the existing case law of the CJEU and the decision practice of the European Commission. 3.1.1 Including the legitimate non-economic objectives in the Wouters test These observations are mostly founded on the premise of the “specificity of sport” in the application of provisions of the competition law of the EU to the actions of SGBs – especially to the activities related to their self-regulatory autonomy. The overall principles of such a sport-specific approach were laid by the CJEU in its Meca-Medina and Majcen ruling in 2006. According to para. 42 of this judgment for the purposes of application of [art. 101 TFEU] to a particular [sport related] case, account must first of all be taken of the overall context in which the decision of the [SGB] was taken or produces its effects and, more specifically, of its objectives. It has then to be considered whether the consequential effects restrictive of competition are inherent in the pursuit of those objectives and are proportionate to them. This reference to the so-called “regulatory ancillarity” (Pijetlovic, 2016, pp. 131– 132; Pijetlovic, 2018, pp. 335) and the conditions of the Wouters test is commonly interpreted as the method to include reasons of non-economic nature as well as mainstreaming public policy objectives (especially other policies determined in the TFEU and TEU) within the framework of competition law of the EU (Vermeersch, 2007, p. 253; Parrish, 2012, p. 725; Weatherill, 2014d, pp. 412–422; Van Rompuy, 2015, p. 196; Pijetlovic, 2016, pp. 132–133; Pijetlovic, 2017, p. 100). In the field of sports, it translates into the possibility to include reasons related to the socio-cultural dimension of sports in Europe as the potential Wouters -consistent legitimate objectives that could justify some of the restrictions of the competition on the internal market resulting from the provisions of the statutes and regulations adopted by the SGBs (provided that they remain inherent and proportionate). What is worth stressing – in accordance with the pluralist theories of the EU legal order – the legitimacy of objectives is determined by the own assessment of pursued objectives by the SGBs and merely acknowledged by the competition law of the EU (Szyszczak, 2007, p. 105; Avbelj, 2018, pp. 126–129). The existing case law of the CJEU and the European Commission’s decision record provide the catalogue of such potential sport-related legitimate objectives. Following the most recent examples of the Commission’s decision and subsequent ruling of the General Court in the case of the eligibility rules of the International Skating Union (ISU), such legitimate objectives should not be solely (nor overwhelmingly) related to the economic interests of the SGBs (European

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