Sport in the Internal Market. Competition Law

Competition Law

The previous chapter focused on the significance of the Bosman ruling in the shaping of EU free movement law in cases involving sport.[1] [2] The preliminary reference made to it by the Belgian court in Bosman invited the Court of Justice to consider the application to sport of not only the free movement rules but also the Treaty competition rules. Having found violations of the free movement rules, the Court simply declined to discuss the relevance of competition law.2 The same was true in Deliege, the case concerning judo, also met in Chapter 4.[3] The Court’s ruling focused on examination of free movement law, but, despite the referring court’s invitation, no discussion of competition law was forthcoming. In Deliege the Court considered it had not been provided with sufficient information, most of all about the structure of the market, to be able to supply an informed ruling.[4]

Most ofthe sports-related cases since Bosman and Deliege have dealt with the application of EU competition law rather than the free movement rules. Competition law, as explained in Chapter 3, is founded on the twin pillars of Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU), which deal respectively with bilateral and multilateral restrictive practices and with the abuse of a position of economic dominance by a single undertaking. The regulation of sport, typically conducted according to networks of agreements between governing bodies and participants, and underpinned by the typically global reach of a single rule-maker, is plainly vulnerable to supervision according to the dictates of EU competition law. That is the concern of this chapter.

EU competition law does not run on precisely the same lines as free movement law. So, to skate over the principal points of detailed distinction, Article 101 rests heavily on finding concerted practices whereas free movement law focuses on the adoption of measures; market analysis is much more prominent in competition law than in free movement law (so, for example, an explicit de minimis threshold for the invocation of EU law applies to the former but not the latter); and there are differences in the personal scope of the provisions. The proper relationship between competition law and free movement law needs careful description and it is normatively contested too.5 The separation of competition law and free movement law is on occasion a friction in the shaping of EU sports law, but the bigger picture is their practical alignment for most purposes. In short, what they have in common far exceeds what separates them. This is largely because both are part of the broader scheme designed to build and maintain the EU’s internal market. Articles 101 and 102 TFEU share an aim, which is the ‘maintenance of effective competition’ within the internal market.[5] [6] The free movement provisions too are dedicated to the achievement of the internal market, which is defined in Article 26 TFEU as ‘an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties’.

Bosman was a free movement case, but it set the scene and it set the tone. The Commission, interpreting and applying competition law to sport, quickly came to adopt a functionally comparable approach to that employed by the Court in the interpretation and application of the free movement provisions. It refused to exclude sport from supervision pursuant to the relevant Treaty provisions, but equally it did not rule out that sport might present some peculiar characteristics that should be taken into account in the legal analysis. This is to confirm the adjudicative or interpretative approach to securing sporting autonomy which was mapped in Chapter 2.

  • [1] Case C-415/93 Union royale belge des societes de football association ASBL v Jean-Marc Bosman[1995] ECR I-4921.
  • [2] ibid para 138.
  • [3] Cases C-51/96 and C-191/97 Deliege v Ligue de Judo [2000] ECR I-2549.
  • [4] ibid paras 36—38.
  • [5] eg J Baquero Cruz, Between Competition and Free Movement: The Economic Constitutional Lawof the European Community (OUP 2002); K Mortelmans, ‘Towards Convergence in the Applicationof the Rules on Free Movement and Competition?’ (2001) 38 CML Rev 613; V Hatzopoulos, ‘TheEconomic Constitution of the EU Treaty and the Limits between Economic and Non-EconomicActivities’ [2012] European Business Law Review 973.
  • [6] Case 6/72 Continental Can v Commission [1973] ECR 215.
 
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