Judgments nº T-93/18 of Tribunal General de la Unión Europea, December 16, 2020

• Resolution Date: December 16, 2020
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-93/18

(Competition - Association of undertakings - Speed skating events - Decision finding an infringement of Article 101 TFEU - Regulations of a sports federation - Balance between competition law and the specific nature of the sport - Sports betting - Court of Arbitration for Sport - Guidelines on the calculation of fines - Scope of territorial application of Article 101 TFEU - Restriction of competition by object - Corrective measures)

In Case T-93/18,

International Skating Union, established in Lausanne (Switzerland), represented by J.-F. Bellis, lawyer,

applicant,

v

European Commission, represented by H. van Vliet, G. Meessen and F. van Schaik, acting as Agents,

defendant,

supported by

Mark Jan Hendrik Tuitert, residing in Hoogmade (Netherlands),

Niels Kerstholt, residing in Zeist (Netherlands),

and

European Elite Athletes Association, established in Amsterdam (Netherlands),

represented by B. Braeken and J. Versteeg, lawyers,

interveners,

APPLICATION under Article 263 TFUE for annulment of Commission Decision C(2017) 8230 final, adopted on 8 December 2017 relating to proceedings under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT/40208 - International Skating Union’s eligibility rules),

THE GENERAL COURT (Fourth Chamber, Extended Composition),

composed of S. Gervasoni, President, L. Madise, P. Nihoul, R. Frendo (Rapporteur) and J. Martín y Pérez de Nanclares, Judges,

Registrar: E. Artemiou, Administrator,

having regard to the written part of the procedure and further to the hearing on 12 June 2020,

gives the following

Judgment

1. Background to the dispute

   A. The International Skating Union

   1 The International Skating Union (‘the applicant’ or ‘the ISU’) is the sole international sports federation recognised by the International Olympic Committee (‘the IOC’) as responsible at worldwide level for regulating and administering figure skating and speed skating on ice.

   2 The applicant is composed of national associations that administer figure skating and speed skating on ice at national level (‘the members’). The members comprise local skating clubs and associations, in which athletes who practise speed skating or figure skating as an economic activity are individual members.

   3 The applicant also carries out a commercial activity in so far as it organises and owns the rights in the most important international speed skating events. International competitions organised by the applicant include, in particular, the European and World long-track and short-track speed skating championships, the Long Track Speed Skating World Cup and the Short Track Speed Skating World Cup. In addition, the Winter Olympic Games speed skating events are organised by the applicant in the form of international competitions.

   B. The rules set by the applicant

   4 As the body responsible for administering figure skating and speed skating on ice worldwide, the applicant has power, in particular, to determine the rules of affiliation which its members and individual skaters are required to observe.

   5 The rules determined by the applicant are set out in its statutes and include its ‘constitution’ and procedural provisions, its general and special regulations, its technical rules, the Code of Ethics, the anti-doping rules, the rules on anti-doping procedures and all currently valid communications of the applicant.

   6 Among those rules, Rules 102 and 103 of the applicant’s general rules (‘the eligibility rules’) determine the conditions in which skaters may participate in the speed skating and figure skating activities and events that fall within the competence of the applicant. Since 1998 the eligibility rules have provided for a ‘comprehensive pre-authorisation system’ (‘the pre-authorisation system’), according to which skaters may participate only in events authorised by the applicant and/or by its members, which are organised by representatives approved by the applicant and under its rules. For the purposes of the present case, the relevant versions of the eligibility rules are those dating from June 2014 (‘the 2014 eligibility rules’) and June 2016 (‘the 2016 eligibility rules’).

   7 As regards the 2014 eligibility rules, it is clear from Rule 102(2)(c) and (7) and Rule 103(2), read together, that, if they participated in an event not authorised by the applicant or by one of its members, the professional skaters and the representatives of the applicant would be exposed to a penalty of a lifetime ban from any competition organised by the applicant.

   8 According to Rule 102(1)(a)(i), in the 2014 version, ‘a person has the privilege to take part in the activities and competitions under the jurisdiction of the ISU only if such person respects the principles and policies of the ISU as expressed in the ISU statutes’.

   9 Rule 102(1)(a)(ii) provided as from 2002 that ‘the condition of eligibility [was] made for the adequate protection of the economic and other interests of the ISU, which uses its financial revenues for the administration and development of the ISU sport disciplines and for the support and benefit of the members and their skaters’.

   10 In June 2016, the eligibility rules were revised with a view to amending, in particular, the rules relating to the imposition of penalties. Now, under Rule 102(7), penalties in the event of athletes participating in an event under the jurisdiction of the applicant and not authorised by the latter are to be determined in accordance with the seriousness of the infringement. The system provides for a warning in the case of a first infringement, a ban of up to 5 years in the event of negligent participation in non-authorised events, a ban of up to 10 years for deliberate participation in non-authorised events and finally a penalty consisting of a lifetime ban for very serious infringements, in particular, in the event of participation in non-authorised events which jeopardise the integrity and jurisdiction of the ISU.

   11 In addition, the reference to the adequate protection of the applicant’s economic interests, contained in the 2014 eligibility rules, was removed from the 2016 version. Rule 102(1)(a)(ii) now provides that ‘the condition of eligibility [was] made for adequate protection of the ethical values, jurisdiction objectives and other legitimate respective interests’ of the applicant, ‘which uses its financial revenues for the administration and development of the ISU sport disciplines and for the support and benefit of the ISU members and their skaters’.

   12 In addition, it must be noted that, since 30 June 2006, Article 25 of the applicant’s constitution (‘the arbitration rules’) has provided for the possibility for skaters to lodge an appeal against an ineligibility decision solely before the Court of Arbitration for Sport (‘the CAS’), established in Lausanne (Switzerland).

   13 On 25 October 2015, the applicant published Communication No 1974 entitled ‘Open international competitions’, which sets out the procedure to be followed in order to obtain authorisation to organise an open international competition in the context of the pre-authorisation system. That procedure is applicable to members and third-party organisers.

   14 Communication No 1974 stipulates that all such events must be authorised in advance by the applicant’s council and organised in accordance with its rules. As regards the time limit for making a request for authorisation, that communication draws a distinction between members and third-party organisers. Third-party organisers must submit their requests at least six months before the starting date of the event, while that period is reduced to three months for members.

   15 In addition, Communication No 1974 sets out a series of general, financial, technical, sporting and ethical requirements, with which an organiser must comply. First, it is apparent from that communication that any request for authorisation must be accompanied by technical and sporting information, such as information relating to the venue and the value of the prizes to be awarded, as well as general and financial information, such as, in particular, business plans, the budget and planned television coverage for the event. Next, in order to comply with the ethical requirements, the organiser and any person cooperating with the organiser are required to submit a declaration confirming that they accept the applicant’s Code of Ethics and, in particular, that they undertake not to be involved in any betting activity. Finally, Communication No 1974 provides that the applicant reserves the right to request further information for each of those categories of requirements.

   16 More particularly as regards ethical requirements, Article 4(h) of the applicant’s Code of Ethics has, since 25 January 2012, contained a provision specifically obliging all who involve themselves with the applicant in any capacity ‘to refrain from participating in all forms of betting or support for betting or gambling related to any event/activity under the jurisdiction of the ISU’.

   17 Communication No 1974 authorises the applicant to accept or reject a request for authorisation, in particular on the basis of the requirements set out in that communication and summarised in paragraph 15 above as well as on the basis of the applicant’s fundamental objectives, as defined ‘in particular’ in Article 3(1) of its constitution. Article 3(1) of the applicant’s constitution provides, in essence, that the applicant’s objectives are to regulate, govern and promote two ice skating disciplines.

   18 In the event that a request is rejected, Communication No 1974 states that the requester may appeal against the applicant’s decision before the CAS, having signed an arbitration agreement in accordance with its procedural rules.

   19 Moreover, Communication No 1974 stipulates that any organiser is required to pay a solidarity contribution to the applicant, the amount of which is to be determined on a case-by-case basis, for the promotion and...