Opinion of Advocate General Ćapeta delivered on 14 September 2023.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2023:676
• Date: 14 September 2023

Provisional text

OPINION OF ADVOCATE GENERAL

ĆAPETA

delivered on 14 September 2023(1)

Case C‑115/22

SO

joined parties:

Nationale Anti-Doping Agentur Austria GmbH (NADA),

Österreichischer Leichtathletikverband (ÖLV),

World Anti-Doping Agency (WADA)

(Request for a preliminary ruling from the Unabhängige Schiedskommission (Independent Arbitration Committee, Austria))

(Reference for a preliminary ruling – Article 267 TFEU – Definition of ‘court or tribunal’ – Reference from a national anti-doping tribunal – Protection of personal data – Regulation (EU) 2016/679 – Article 5 – Article 6 – Lawfulness of and necessity for online publication of personal data of a person who has acted in breach of anti-doping rules – Article 9 – Whether breaches of anti-doping rules constitute ‘data concerning health’ – Article 10 – Whether breaches of anti-doping rules constitute ‘personal data relating to criminal convictions’ – Whether a national tribunal constitutes ‘official authority’)

I. Introduction

1. Citius, Altius, Fortius; faster, higher, stronger. Like few others, the Olympic motto captures the human desire to advance to new heights. However, the pressure to win may bring the temptation to enhance performance through the use of certain prohibited substances.

2. The present case arises in such a context. The applicant is an Austrian professional athlete. She was found guilty of acting in breach of anti-doping rules. As a consequence, the Austrian national anti-doping authority published her name, details of the breach concerned, and the period of suspension on its publicly accessible website.

3. Is that practice compatible with the General Data Protection Regulation (‘the GDPR’)? (2) That is, in short, the main substantive question raised before the Court. However, as the reference came from a body that is not a ‘classical’ court within the organisation of the judiciary in Austria, this case also raises the issue of admissibility.

II. Background to the case and the questions referred for a preliminary ruling

4. While the use of stimulants to enhance physical performance has been a feature of human competition since the beginning of recorded history, (3) the system of anti-doping controls as we know it dates only from 1999 with the creation of the World Anti-Doping Agency (‘the WADA’) and the entry into force, in 2004, of the World Anti-Doping Code (‘the WADC’). (4) Its latest emanation dates from 2021.

5. Although the WADC is a private legal instrument, its effectiveness is ensured by the 2005 UN International Convention Against Doping in Sport. (5) All the Member States are signatories of that convention. Article 4 thereof states that the provisions of the WADC are not an integral part of the Convention and do not have direct effect in national law. However, by the same provision, the State parties have committed to abide by the principles of the WADC. That commitment, which includes the WADC requirement for online publication of breaches of anti-doping rules, is transposed into the legal systems of the Member States in different ways. (6)

6. The present case comes from Austria, where anti-doping controls are regulated by the Anti-Doping-Bundesgesetz 2021 (2021 Austrian Federal Law on anti-doping) (‘the ADBG’).

7. Between 1998 and 2015, SO (‘the applicant’) was a professional athlete in Austria. The applicant represented her country at international competitions as a member of the Austrian Athletics Federation team. She also carried out management and representative functions at various Austrian sports clubs.

8. In 2021, on the basis of the results of an investigation conducted by the Bundeskriminalamt (Federal Criminal Police Office, Austria), the Unabhängige Dopingkontrolleinrichtung (Independent Anti-Doping Agency, Austria) (‘the NADA’) submitted a request for examination to the Österreichische Anti-Doping-Rechtskommission (Austrian Anti-Doping Legal Committee) (‘the ÖADR’).

9. By decision of 31 May 2021 (‘the contested decision’), the ÖADR found the applicant guilty of breaching Rule 32.2(b) and (f) of the 2015 International Association of Athletics Federations (IAAF) Competition Rules and Articles 2.2 and 2.6 of the 2017 IAAF Anti-Doping Rules. Those rules forbid the ‘use or attempted use of a prohibited substance or a prohibited method’ and the ‘possession of a prohibited substance or prohibited method’. (7) Specifically, the ÖADR found that, between May 2015 and April 2017, the applicant possessed the substances erythropoietin (also known as EPO), Genotropin or Omnitrope and Testosterol (in the form of Androgel) and had used them at least in part in 2015. Those substances were all listed on the WADA Prohibited Lists of 2015 to 2017. They were therefore banned for use by professional athletes operating under the IAAF Competition Rules.

10. As a result of that finding, in the contested decision, the ÖADR declared invalid all the results that the applicant had obtained between 10 May 2015 and the date of entry into force of that decision and revoked all entry fees and/or prize money. It also banned the applicant from participating in sporting competitions of any kind for a period of four years with effect from 31 May 2021.

11. During the procedure before the ÖADR, the applicant had requested that the contested decision not be disclosed to the general public by means of a publicly accessible online publication. That request was rejected by the ÖADR in the contested decision.

12. The applicant submitted a request for review of the contested decision to the Unabhängige Schiedskommission (Independent Arbitration Committee, Austria) (‘the USK’).

13. By decision of 21 December 2021, the USK upheld the substantive findings of the ÖADR and confirmed the applicant’s breaches of the anti-doping rules and the penalty imposed.

14. At the same time, the USK reserved its decision on the applicant’s request that it refrain from publishing the contested decision online, thereby disclosing it to the general public. (8)

15. That publication obligation is based on Paragraphs 21(3) and 23(14) of the ADBG. Those provisions state that the ÖADR and the USK respectively ‘must inform the [Austrian Federal Sports Organisation], sports organisations, athletes, other persons, competition organisers and the general public of its decisions’, stating the name of the person concerned, the duration of the ban and the reasons for it, without it being possible to infer any health data of the person concerned.

16. The publication of this information is mandatory in the case of professional athletes and, in some cases, also for recreational athletes. In other cases, when the breach was committed by recreational athletes, minors or vulnerable persons, publication is not mandatory.

17. While the obligation to inform the public lies with the decision-making bodies, that is to say, the ÖADR and the USK, the ADBG provides that the NADA carries out this task on behalf of the ÖADR and the USK. (9) In order to comply with that obligation, the NADA publishes a table that is accessible to the general public on its website. (10) The relevant entry in that table is composed of the first and last name of the person concerned; the type of sport he or she engaged in; the type of infringement; the type of suspension imposed on him or her; and the start and end dates of the suspension.

18. I understand that this information remains available on the NADA’s website only for the duration of the suspension of the athlete in question.

19. The USK has doubts as to the compatibility, with the GDPR, of the practice of disclosing the applicant’s personal data to the general public by means of publicly accessible online publication on the NADA’s website. In order to be able to decide on the applicant’s request that her personal data not be disclosed on that website, it therefore decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Does the information that a certain person has committed a specific doping violation, as a result of which that person has been banned from taking part in (national and international) competitions, constitute “data concerning health” within the meaning of Article 9 of [the GDPR]?

(2) Does the [GDPR] – particularly in the light of the second subparagraph of Article 6(3) thereof – preclude a national provision that provides for the disclosure of the name of the persons concerned by the decision of the [USK], the duration of the ban and the reasons for it, without it being possible to infer the health data of the person concerned? Is it relevant that disclosure of that information to the general public can only be omitted under the national provision if the person concerned is a recreational athlete, a minor or a person who has contributed significantly to the detection of potential anti-doping violations by disclosing information or other indications?

(3) Does the [GDPR]– particularly in the light of the principles in Article 5(1)(a) and (c) thereof – in any case prior to the disclosure, require a balancing of interests between the personal interests of the person concerned that will be affected by the disclosure, on the one hand, and the interest of the general public in being informed of the anti-doping violation committed by an athlete, on the other?

(4) Does the disclosure of the information that a certain person has committed a specific doping violation, as a result of which that person has been banned from taking part in (national and international) competitions, constitute the processing of personal data relating to criminal convictions and offences within the meaning of Article 10 of the [GDPR]?

(5) If Question 4 is answered in the affirmative: Is the [USK] established under Paragraph 8 of the 2021 ADBG an official authority within the meaning of Article 10 of the [GDPR]?’

20. Written observations have been submitted by the...