EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

the objectives of the application of the provisions of the competition law in the field of sport. The responsibility for its “operationalisation” rests foremost on the Commission as the “Guardian of the Treaties” (Szyszczak, 2018, p. 191). A crucial role in this context once again plays the Wouters test – Article 165 TFEU should constitute the background against which the legitimacy of objectives strived by the SGBs could be examined (Van Rompuy, 2015, p. 207; Pijetlovic, 2016, p. 133). Particular attention should be paid to the specific nature of sport and its social function – jointly these features are deemed to constitute the main characteristics of the widely supported European Model of Sports (European Parliament, 2021; the Council of the European Union, 2021). Hence, Article 165 TFEU provides a sound legal basis for pursuing the non-economic objectives by application of the competition law provisions in the field of sport. It is worth presenting two examples from the most recent case law of the General Court and the Commission decision practice as the case study for this argument – the case of ISU and the case of the European Super League. 3.1.3 Case study – International Skating Union and European Super League In its judgment issued in 2019, the General Court fulfilled the obligation to follow non-economic objectives of competition law in the field of sport enshrined in Article 165 TFEU by acknowledging that the integrity of sport may constitute a legitimate objective in the Wouters test. The importance of solidarity between grassroots and professional sports and the safety of participants is also stressed (the General Court, 2020, paras. 78 & 101–102). Furthermore, the non-economic context was looming over the judgment also in the part related to the eligibility rules and authorisation procedure provided by the statutes adopted by the ISU. The General Court found the ambiguous and arbitrary loyalty clauses to breach Article 101 TFEU not only by the virtue of constituting an unfair economic advantage, but also because of the conflict of interest between commercial and regulatory roles of the ISU. It also referred to the social significance of sport and its specificity to highlight the special responsibility resting on the SGB (ISU) towards its competitors and athletes to govern the discipline (speed skating) by the good governance principles, such as accountability, predictability, and transparency (General Court, 2020, paras. 84–95). Therefore, the result of the application of the competition law in the field of speed skating and determining violation of competition law by the ISU has led primarily to the amendment of the unproportionate sanctions (lifetime ban) and untransparent authorisation procedure (including conditions to be met for granting authorisation to third party organisers of speed skating events). Increased economic efficiency of the market for speed skating events (bigger choice of events available for athletes

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