EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

Commission, 2017, para. 220; General Court, 2020, para. 109). Hence, they are non-economic almost per definitione and par excellence (Cattaneo, 2021, p. 320; Kolasiński, 2019a, p. 61). Nevertheless, more specific legitimate sports-related objectives that have been acknowledged by the CJEU cover combating doping, protecting the integrity, objectivity, as well as clean and ethical contests, securing the health of athletes, ensuring uncertainty and comparability of results, and equal chances of participants (Court of Justice, 2005, para. 43; Van Rompuy, 2015, p. 197; Pijetlovic, 2016, p. 144). Furthermore, the General Court added to the list the (vertical) solidarity among grassroots and professional sport, unity of sport disciplines, and protection of competitions against manipulations (General Court, 2020, paras. 101–102). The Advocates General recommended in their opinions to consider the perspective of viewers, the interdependence of the competitors, and the access to sports competitions (Advocate General Kokkott, 2008; Van Rompuy, 2015, p. 200; Pijetlovic, 2018, p. 336). The Commission strongly emphasised the necessity to maintain uniform and consistent interpretation and application of the sporting rules within the disciplines, which can justify the monopolistic regulatory position of SGBs (European Commission, 2011, p. 12; Pijetlovic, 2018, p. 335). This catalogue is thus inclusive, broad, and relates to the specificity and social significance of SGBs in governing sport disciplines and protecting legitimate objectives of importance for the European societies (Avbelj, 2018, pp. 126–127). Therefore, the application of competition law in the field of sports provides an example of pursuing non-economic objectives by these provisions. 3.1.2The role of Article 165 TFEU As argued above, the conditions of the Wouters test allow for the mainstreaming of other EU public policy objectives within the framework of the competition law of the EU. Since 2009, the sports policy of the EU has been legally determined in Article 165 TFEU. The EU should “contribute to the promotion of European sporting issues, while taking account of the specific nature of sport, its structures based on voluntary activity and its social and educational function” and its actions shall be aimed at “developing the European dimension in sport, by promoting fairness and openness in sporting competitions and cooperation between bodies responsible for sports, and by protecting the physical and moral integrity of sportsmen and sportswomen, especially the youngest sportsmen and sportswomen”. Hence, this provision should play the role of a compass for the EU institutions while taking action in the field of sport – also through other instruments provided by the Treaty. It is sometimes observed that Article 165 TFEU does not have horizontal character (contrary to the environmental or consumers protection), however, it has legal relevance and binding force equal to all other provisions of the TFEU (Parrish, 2012, pp. 727-728; Weatherill, 2014e, p. 533; Pijetlovic, 2016, p. 133). Thus, it should constitute a legally significant element of interpretation of

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