Abstract
This chapter sketches a novel way of looking at the different categories of sporting exceptions through the prism of convergence between EU free movement law and competition law. It connects back to the discussion on para 31 of the Meca-Medina case in Chap. 5. The text is supported by graphic illustrations wherever deemed useful. This is probably the most significant theoretical contribution of this work to the study of EU sports law in general.
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Notes
- 1.
For detailed treatment of other areas, such as social security, see Sauter and Schepel 2007, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1010075.
- 2.
Zweigert and Kotz 1987, p. 31.
- 3.
Baquero Cruz 2002, p. 85.
- 4.
Case C-41/90 Höfner and Elsner v Macroton [1991] ECR I-1979, para 22.
- 5.
Case C-343/95 Diego Calì & Figli v SEPG [1996] ECR I-1547.
- 6.
Free movement of goods is a notable exception and become applicable only when a private action is attributable to state. See, for example, Case C-470/03 A.G.M.—COS.MET Srl v Suomen Valtio, Tarmo Lahtinen [2007] ECR I-2749 and Case C-265/95 Commission v France (Spanish Strawberries) [1997] ECR I-6959. For horizontal application of free movement of workers in non-sporting context see, for example, Case C-281/98 Angonese [2000] ECR I-4139; for freedom to provide (and receive) services see C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarberareförbundet [2007] ECR I-11767; and for freedom of establishment see Case C-438/05 Viking Line [2007] ECR I-10779.
- 7.
This sphere was defined in Case 149/79 Commission v Belgium [1982] ECR 1845 that concerned public service exception under Article 45(4) TFEU, and Case 2/74 Reyners v Belgian State [1974] ECR 631 that involved official authority exception under Article 52 TFEU. The scope of these exceptions is narrowly construed.
- 8.
As argued by Barnard 2010, p. 234.
- 9.
Parrish and Miettinen 2008.
- 10.
Ibid. p. 73.
- 11.
For more detailed treatment of the subject, see Parrish and Miettinen 2008, Chap. 4, in particular pp. 100–101.
- 12.
This is not to say that a few scenarios could not be envisaged where the rules of the game are challenged, especially if the long-standing rules of the game were to be changed so as to produce specific disadvantages for an identifiable group of undertaking (clubs or individual participants), in which case they might be held to have an effect on economic activity and would not benefit from this particular exception.
- 13.
For example, it has been argued that ‘[r]ules governing the composition of national sports teams or the conduct of anti-do** controls may plausibly define the nature of sporting competition, in the sense that the very existence of sporting endeavour is undermined without such rules. They are sporting rules. But they are not purely sporting rules. They visibly have economic repercussions (for players most of all)’. He also states that ‘[a]ll that can be intended by the ‘purely sporting rule’ is a reference to the small category of rules which govern sport but which are devoid of economic effect—such as the offside rule and fixing the height of goalposts. In the unlikely event that such rules were to provoke litigation, they would be found to lie outside the scope of the [TFEU]’. See Weatherill 2009, pp. 78–100.
- 14.
Parrish and Miettinen 2008, p. 100.
- 15.
It has been argued in the light of Meca-Medina, that, to continue assessing the sporting rules on the basis of their fiscal nature is ‘intrinsically flawed since modern sport dictates that financial considerations now impact on almost every aspect of sport’. See Callery 2011, p. 48.
- 16.
Paragraph 69.
- 17.
Paragraph 69 of his Opinion.
- 18.
For example, compulsory uncompensated player release for representative matches of national teams might be a candidate rule for this exception. It produces economic effects, is related to the particular nature and context of certain matches, and there is no doubt that it has been motivated by purely sporting considerations. Its proportionality in the light of its objectives, especially considering solidarity and the need for competitive balance between the teams, as well as solidarity with poorer national associations, might not be at issue either. See Sect. 3.3.6.1.
- 19.
This paragraph reads: ‘even if those rules do not constitute restrictions on freedom of movement because they concern questions of purely sporting interest and, as such, have nothing to do with economic activity, that fact means neither that the sporting activity in question necessarily falls outside the scope of Articles [101 TFEU] and [102 TFEU] nor that the rules do not satisfy the specific requirements of those articles’. See Sect. 5.5.5.5 above for detailed analysis of this paragraph.
- 20.
Level of ‘required economic effect’. See Fig. 6.1.
- 21.
Weatherill 2008, p. 342.
- 22.
Ibid. p. 341. See also paras 104–105 of Advocate General Alber’s Opinion in Lehtonen who, in the context of Article 101(1), argued that it must be possible ‘to find that trade is affected in a case in which the exercise of fundamental freedoms is obstructed. […] Since the development of economic activities by the clubs, that is, by undertakings, is obstructed by these transfer rules, there is probably also a restriction of competition within the meaning of Article [101(1)] of the EC Treaty’.
- 23.
See Sect. 5.5.5.5
- 24.
On convergence of burden of proof see Sect. 6.5
- 25.
Opinion of AG Kokott in Cases C-403/08 and C-429/08 Murphy v. Premier League [2011], para 249.
- 26.
This criterion is specifically mentioned only in relation to competition provisions (in Meca-Medina case) but, as submitted below, it applies in free movement as well.
- 27.
Ibid.
- 28.
For more on this discussion see paper by Miettinen S and Parrish R, ‘Inherent Rules in EC Sports Law’, presented at the Conference on Law and Popular Culture, Onati, Spain (June 2008).
- 29.
Joined Cases C-51/96 and C-191/97, para 61.
- 30.
Under the ‘Säger formula’ this would have been enough to find a breach. Paragraph 12 of Case C-76/90 Säger [1991] ECR I-4221 provides that Article 56 required: ‘not only the elimination of all discrimination against a person providing services on the ground of his nationality but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, when it is liable to prohibit or otherwise impede the activities of provider of services established in another Member State where he lawfully provides similar services’. See on this point Miettinen S and Parrish R, ‘Inherent Rules in EC Sports Law’, presented at the Conference on Law and Popular Culture, Onati, Spain (June 2008).
- 31.
Joined Cases C-51/96 and C-191/97 Deliège, para 64.
- 32.
Ibid. para 65 (emphasis added).
- 33.
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee, and the Committee of the Regions ‘Develo** the European Dimension in Sport’ COM(2011) 12 final, 18. 1. 2011, para 4.2.
- 34.
Joined Cases C-51/96 and C-191/97 Deliège, paras 67 and 68.
- 35.
Parrish and Miettinen 2008, p. 101.
- 36.
See C-176/96 Lehtonen, paras 47–51.
- 37.
C-415/93 Bosman, para 75.
- 38.
Ibid. para 103.
- 39.
Commission Staff Working Document, The EU and Sport: Background and Context, Accompanying Document to the White Paper on Sport, COM (2007) 391 final, Annex I, para 2.4.
- 40.
Ibid. para 2.1.5.
- 41.
Ibid. paras 2.2.1.4 and 2.4.
- 42.
Ibid. para 2.2.1.4.
- 43.
Parrish and Miettinen 2008, p. 73.
- 44.
See Guidelines on the Application of Article 81(3) OJ C 101 27.4.2004.
- 45.
Case C-55/94 Gebhard [1995] ECR I-4165 para 37 and Case C-19/92 Kraus [1993] ECR I-1663 para 32 are normally reserved for non-discriminatory measures only. Discriminatory measures normally can only benefit from the exhaustive list of Treaty-based exceptions such as public policy, public health and public security, but not from an open list of justifications available to non-discriminatory measures. Sport is an exception to this rule.
- 46.
Paragraph 2.2.1.6.
- 47.
Communication made pursuant to Article 19(3) of Council Regulation No 17 concerning request for negative clearance or for exemption pursuant to Article 81(3) of the EC Treaty Case No 37.632—UEFA rule on integrity of the UEFA club competitions: independence of clubs 1999/C 363/02.
- 48.
Case 33/74 Van Binsbergen v. Bestuur van de Bedrijfsvereniging voor de Metaalnijverheid [1974] ECR 1299; Case 71/76 Thieffry [1977] ECR 765; and Case C-55/94 Gebhard [1995] ECR I-4165.
- 49.
T-144/99 Institute of Professional Representatives before the European Patent Office v. Commission [2001] ECR II-1087 para 66. This paragraph makes the decision of the General Court in Meca-Medina taken a few years later even more surprising.
- 50.
Mortelmans 2001, p. 629.
- 51.
Whish 2009, pp. 127–128.
- 52.
Case 33/74 Van Binsbergen [1974] ECR 1299.
- 53.
Opinion of AG Lenz in C-415/93 Bosman, para 278.
- 54.
Opinion of AG Kokott in Cases C-403/08 and C-429/08 Murphy v. Premier League [2011], paras 249–250.
- 55.
In C-222/07 Presidente del Consiglio dei Ministri v Regione Sardegna [2009] ECR I-1404 she similarly considered that when the same questions arise under the law of State aid as with regard to the fundamental freedoms, the reply to the latter should not differ from the reply to the former and the same criteria must be applied in both cases to avoid conflicting assessments. See paras 134 and 135 of her Opinion in that case.
- 56.
See also Sect. 7.8
- 57.
Paragraph 145. The Court’s selected reference to paras 105–124 also confirms the point made above in Sect. 4.10.2.4, that encouraging public to attend and participate in matches is probably not accepted as objective worthy of protection under EU law, and that the Court was only dealing with the point of proportionality.
- 58.
Article 2 of the Council Regulation 1/2003 of 16 December 2002 states that: ‘In any national or [Union] proceedings for the application of Articles [101] and [102] of the Treaty, the burden of proving an infringement of Article [101(1)] or of Article [102] of the Treaty shall rest on the party or the authority alleging the infringement. The undertaking or association of undertakings claiming the benefit of Article [101(3)] of the Treaty shall bear the burden of proving that the conditions of that paragraph are fulfilled’.
- 59.
See Case T-203/01 Manufacture française des pneumatiques Michelin v Commission (Michelin II) [2003] ECR II-4071, paras 107–109.
- 60.
Council Regulation (EC) No 1/2003 of 16 December 2002 OJ L 1, 04.01.2003, pp. 1–25. Article 2 reads: ‘in any national or Community proceedings for the application of Articles 81 and 82 of the Treaty, the burden of proving an infringement of Article 81(1) or of Article 82 of the Treaty shall rest on the party or the authority alleging the infringement. The undertaking or association of undertakings claiming the benefit of Article 81(3) of the Treaty shall bear the burden of proving that the conditions of that paragraph are fulfilled’.
- 61.
In para 55 of C-519/04 Meca-Medina, the Court held: ‘Since the appellants have, moreover, not pleaded that the penalties which were applicable and were imposed in the present case are excessive, it has not been established that the anti-do** rules at issue are disproportionate’.
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Pijetlovic, K. (2015). A Quest for Convergence in the Application of EU Internal Market and Competition Law to Sport. In: EU Sports Law and Breakaway Leagues in Football. ASSER International Sports Law Series. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-048-0_6
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