EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

clauses included in the statute of the SGB may reinforce the anticompetitive effect of other provisions contrary to Article 101 TFEU, on the other hand, the Oberlandesgericht (OLG) in Munich found the arbitration award of the CAS in the Pechstein case as contrary to the competition law, and thus to an ordre public, and therefore invalid under the conditions of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. However, neither of the approaches have been confirmed in the appeal (for various reasons), yet they offer interesting examples of the use of the provisions of the competition law beyond its economic context and as a straightforward tool to increase the level of protection of the rights of individuals. This possibility has also been stressed by the General Court in its ISU judgment, where it referred to the possibility of lodging a complaint by individuals with a national competition authority or the Commission and seeking compensation for damages before national courts (the General Court, 2020, paras. 157–160). Thus Article 101 TFEU (as well as Article 102) may be used as a legal weapon by individuals to increase their level of protection against harmful actions of the collective entities, such as SGBs – this also amounts to the constitutional dimension of the competition law of the EU. 4. Conclusion As it was presented above, the competition law of the EU may be interpreted far beyond its traditional ordoliberal context of dealing with economic objectives, such as the effective allocation of the resources on the market, protection of the structure of the market, or the consumer welfare. Sports present an interesting field of application of its provisions because of its specificity that translates into the potential exemption of various sport rules from the scope of application of Article 101 or Article 102 of TFEU if the conditions of the Wouters test are met. Non-economic objectives of competition law may be pursued by acknowledging them as legitimate objectives under the conditions of the Wouters test, but also by strengthening good governance principles within the operations of the SGBs. The effects of implementing good governance principles, such as accountability, unarbitrary criteria, or transparency, amount to the constitutional dimension of the competition law of the EU. This dimension is the most clearly visible in the counterbalancing effect for the transnational regulatory and economic power resulting from the monopolistic position of the SGBs on the relevant markets for respective disciplines and in the strengthening of the fundamental rights of individuals against abuses from the SGBs, in particular in increasing the level of protection of their right to a fair trial. These conclusions may be transposed to other fields covered by the EU policies in which a similar setup favourable for abuses – the strong market position of collective private actors and disproportions in the formally horizontal relations – exist.

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