How Meca-Medina Has Come to Frame the Debate about EU Sports Law

The significance of the approach chosen by the Court in Meca-Medina is readily appreciated when one examines the contrasting tone of the ‘Arnaut Report’—the so-called Independent European Sport Review published in October 2006.'71 The Arnaut Report is among the most revealing of all documents ever produced in the field of EU sports law—though certainly not for the reasons and aspirations of those interests that were behind its production. Like the CFI ruling in Meca-Medina, the Arnaut Report pines for maximum sporting autonomy but it fails utterly to present an intellectually sturdy case in favour. It is illuminating because it is wrong.

The review process that led to the Arnaut Report was initiated by the United Kingdom’s Presidency of the EU in 2005, but it was dominated by the interests of those who exercised control of patterns of sports governance in Europe. Despite its name, there was little that was ‘independent’ about the Arnaut Report. It is, in short, heavily supportive of the status quo in sport. The Arnaut Report almost entirely ignores the Court’s judgment in Meca-Medina.72 It prefers instead to load its analysis on the back of the CFI’s judgment, which had been set aside on appeal to the Court some months in advance of the publication of the Arnaut Report. So the Report claims that EU law does not affect ‘rules concerning questions of purely sporting interest and, as such, having nothing to do with economic activity’ and adds that it ‘follows that, provided the rules in question remain limited to their proper objective ... they must be considered as pure sports rules and not subject to the prohibitions of European Community law’.[1] [2] [3] [4] [5] [6]

As sporting bodies jealous of their autonomy and their earning potential would wish! But it is exactly this vision that was decisively rejected by the Court of Justice in the appeal in Meca-Medina. The Arnaut Report’s account of EU law is legally unsound, contaminated throughout by its improperly inflated assessment of EU law’s readiness to accept the notion of the ‘purely sporting rule’/4 In truth the Arnaut Report lacks any serious legal weight, and it amounts to little more than politically motivated propaganda designed to promote the ambition of sports federations to relax the intensity of their subjection to EU law. Even here the Arnaut Report is compromised by its uncritical acceptance of exaggerated claims that European football at the time was marked by vigorous vertical redistribution of wealth.75 Nevertheless, the flawed selectivity of which the Arnaut Report stands both accused and convicted helps to reveal the full implications of the choice that was on offer in Meca-Medina. The CFI’s approach would have maximized sporting autonomy. The Court instead insisted on a more cautious case-by-case examination of whether sporting practices with economic effects apt to bring the matter within the Treaty are compatible with EU law. Sporting autonomy is conditional on demonstrating compliance with EU law.

The European Commission’s White Paper on Sport, issued in July 2007/6 is a great deal more reliable. It largely ignores the Arnaut Report/7 It places heavy reliance for its legal analysis on the Court’s ruling on appeal in Meca-Medina. It presents it—entirely correctly—as a landmark ruling. In fact it is the only decision of the Court of Justice explicitly referred to in the body of the White Paper, which comprises twenty pages. It is stated that:

... in respect of the regulatory aspects of sport, the assessment whether a certain sporting rule is compatible with EU competition law can only be made on a case-by-case basis, as recently confirmed by the European Court of Justice in its Meca-Medina ruling. The Court provided a clarification regarding the impact of EU law on sporting rules. It dismissed the notion of ‘purely sporting rules’ as irrelevant for the question of the applicability of EU competition law to the sport sector/8

This is correct! The Staff Working Document entitled ‘The EU and Sport: Background and Context’, a much fuller document which accompanied the Commission’s White Paper, supplies more detailed legal analysis.[7] Its Annex I, entitled ‘Sport and EU Competition Rules’, explains that in so far as concessions are made to sporting ‘specificity’ they are made on terms dictated by EU law; and, moreover, a case-by-case analysis of sporting practices is required. This means that, in the Commission’s estimation, a general exemption is ‘neither possible nor warranted’.[8] Here too the legal analysis is carefully and correctly built on the foundation stone of Meca-Medina. It concludes that the Court’s ruling reveals an interpretation of EU competition law which:

... provides sufficient flexibility to take account of the specificity of sport and does not impede sporting rules that pursue a legitimate objective (such as the organisation and proper conduct of sport), are indispensable (inherent) to achieve the objective and proportionate in light of the objective pursued^1

The Annex to the Staff Working Document proceeds to a survey of existing decision-making practice in order to provide guidance on what is permitted by EU law and what is not. This is largely intended to be descriptive although, in more ambitious vein, it seeks to explain some pre-existing EU case law on the basis of Meca-Medina. It suggests that the ENIC decision, concerning rules forbidding multiple ownership of football clubs,82 is now capable of being understood as a finding that the measure involved no breach of Article 101(1) TFEU ‘on the basis of the Wouters criteria applied in Meca Medina’?3 This is convincing: it is fully in line with the discussion presented earlier in this chapter. As explained, such a rule suppresses demand and it therefore serves to restrict competition in the market for clubs, but it is necessary in order to eliminate suspicions of collusion that would arise were clubs under the same ownership to face each other in matches. Lehtonen, a case dealing with transfer windows^4 is similarly considered with the advantage of hindsight as in line with Meca-Medina?3 One should be cautious in interpreting the past in the light of what has become known in the future, for it may conceal the true pattern of reasoning adopted at the time. However, the landmark significance of Meca-Medina justifies an attempt to pursue such repackaging, and the Commission’s analysis in the 2007 White Paper on Sport and its supporting Staff Working Document is properly cautious and astute.

It is possible to be still more ambitious than the Commission in its 2007 White Paper in reframing the early landmarks of EU sports law in the light of the method of reasoning adopted by the Court in Meca-Medina. The shape of EU sports law developed in the interpretation of provisions of the Treaty dealing with competition law in Meca-Medina is capable of being exported also to inform the interpretation of free movement law. Meca-Medinas distaste for the notion of the ‘purely sporting’ rule and preference instead for case-by-case examination of sporting practices deserves to be applied also to free movement law.

Free movement law, like competition law, should be treated as based on an overlap between EU law and ‘internal’ sports law, with minimal scope for the total exclusion of EU law, combined with a sensitive willingness to assess claims that the lex sportiva contains particular unusual features that are essential in sports governance. Embrace of this approach would not change the outcome of key free movement cases such as Walrave and Koch or Bosman, but it would make the analysis more intellectually credible. This argument is, however, better reserved for Chapter 7. Delay is helpful because it leaves space in Chapter 6 for examination of the path that led to Article 165 TFEU, and it is Article 165, and in particular its explicit embrace of the ‘specific nature’ of sport, that provides the constitutional impetus to argue in favour of a convergence in the treatment of sport under the model of conditional autonomy developed under both competition and free movement law as an integrated EU internal market law.

  • [1] ibid paras 3.50—3.51.
  • [2] eg ibid paras 3.19, 3.26, 3.40—3.41, 3.89, 5.55, 6.28, 6.60, 6.70. The Arnaut Report is statedto have been prepared with the advice of Jose Luis da Cruz Vilaca. It seems implausible that such adistinguished jurist could have approved the final text of the Report.
  • [3] cf H Moorhouse, ‘Financial Expertise, Authority and Power in the European Football “Industry” ’(2007) 3 JCER 290.
  • [4] White Paper on Sport, COM (2007) 391, 11 July 2007, available via accessed 29 November 2016.
  • [5] There is no more than a (probably calculatedly) bland reference, ibid 13, in fn 7.
  • [6] ibid 15.
  • [7] Staff Working Document, ‘The EU and Sport: Background and Context’, also available via accessed 29 November 2016.
  • [8] ibid 69, 78. 8i ibid 69. 82 COMP 37.806 ENIC/ UEFA, IP/02/942, 27 June 2002. See sect 5.2. 83 ‘The EU and Sport: Background and Context’ (n 79) 71. 84 Case C-176/96 Lehtonen and others v FRSB [2000] ECR I-2681. 85 ‘The EU and Sport: Background and Context’ (n 79) 72.
 
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