EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

and viewers) has been rather a by-product of the positive changes in the internal governance mechanism of the ISU. A similar duality of non-economic objectives can be observed in the case of the EuropeanSuper League , currentlyunder consideration as the case numberC-333/21 as a result of the preliminary question to the CJEU dated May 2021. On the one hand, the competition law may be used as a “sword” by complainants – the poor and non-transparent governance of European football by UEFA represented by its arbitrary authorisation procedure may be attacked for its lack of conformity with good governance principles and thus contrary to non-economic objectives of the competition law of the EU. On the other hand, the competition law may be used as a “shield” by the defendant – the non-economic legitimate objectives, such as the need to maintain openness, unity, and integrity of European club football competitions, may constitute justification grounds under the Wouters test (Bozza, Marasà, 2021). Hence, even though the background to the dispute is purely economical (control over the stream of revenues from the sales of commercial rights to the football competition), it may be finally resolved by balancing the non-economic objectives of the competition law. Whatever direction the final ruling of the CJEU will follow, it should be expected that the outcome will be based upon Article 165 TFEU and the fundaments of the European sport policy enshrined therein (Parrish, 2018; Weatherill, 2014f; Weatherill, 2018). Among others, the most relevant ones seem to be the promotion of fairness and openness in sporting competitions and cooperation between bodies responsible for sports, the social function of sport (especially football), and its specific nature. 3.2 Constitutional dimension of the competition law of the EU Good governance of the SGBs as one of the non-economic objectives of the competition law of the EU is strongly related to the constitutional dimension discussed in the literature. In the most overall context, the competition law of the EU is described as a part of its “economic constitution” (Drexl, 2006, pp. 633–674; Gerbrandy, 2019a, pp. 127–142). The constitutional dimension of the competition law of the EU is also described in the context of the objectives of the public policy as presented above (Monti, 2002, pp. 1057–1099; Gerbrandy 2019b, pp. 33–50). In the context of sport, it is most relevantly considered twofold: firstly as the legal tool in the EU legal toolbox to counterbalance the transnational normative power of SGBs of private and non-democratic origin, and secondly, as the tool to increase the protection of the fundamental rights of individuals, in particular, the right to a fair trial of athletes (Szyszczak 2019, pp. 188–191; Duval, 2020, p. 33; Duval, 2017, pp. 18–22; Weatherill, 2014d, pp. 420–421; Motyka-Mojkowski, Kleiner, 2017, pp. 460–461; Kornbeck, 2020,

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