European Superleague Company, S.L. v Unión de Federaciones Europeas de Fútbol (UEFA) and Fédération internationale de football association (FIFA).

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:1011
• Date: 21 December 2023
• Docket Number: C-333/21
• Celex Number: 62021CJ0333
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Grand Chamber)

21 December 2023 (*)

Table of contents

I. Legal context

A. The FIFA Statutes

B. The FIFA Regulations Governing International Matches

C. The UEFA Statutes

II. Facts in the main proceedings and the questions referred for a preliminary ruling

A. The Super League project

B. The main proceedings and the questions referred

III. Procedure before the Court

IV. Admissibility

A. The procedural conditions for issuing an order for reference

B. The content of the order for reference

C. The facts of the dispute and the relevance of the questions referred to the Court

V. Consideration of the questions referred

A. Preliminary observations

1. The subject matter of the case in the main proceedings

2. The applicability of EU law to sport and the activities of sporting associations

3. Article 165 TFEU

B. Consideration of the first to fifth questions: the competition rules

1. Consideration of the first question: the interpretation of Article 102 TFEU in situations involving rules on the prior approval of interclub football competitions and on the participation of clubs and of sportspersons in those competitions

(a) Consideration of the concept of ‘abuse of a dominant position’

(b) Consideration of the determination of whether there is abuse of a dominant position

(c) Consideration of the categorisation of rules on the prior approval of interclub football competitions and on the participation of clubs and of sportspersons in those competitions as abuse of a dominant position

2. Consideration of the second question: the interpretation of Article 101(1) TFEU in situations involving rules on the prior approval of interclub football competitions and on the participation of clubs and of sportspersons in those competitions

(a) Consideration of the concept of conduct having as its ‘object’ or ‘effect’ the restriction of competition and of the categorisation of the existence of such conduct

(1) Categorisation of the existence of conduct having as its ‘object’ the prevention, restriction or distortion of competition

(2) Categorisation of the existence of conduct having as its ‘effect’ the prevention, restriction or distortion of competition

(b) Consideration of the categorisation of the rules on the prior approval of interclub football competitions and on the participation of clubs and of sportspersons in those competitions as a decision of an association of undertakings having as its ‘object’ the restriction of competition

3. Consideration of the third question: the interpretation of Article 101(1) and Article 102 TFEU in situations involving conduct consisting of threatening the imposition of sanctions on clubs and on sportspersons participating in unauthorised competitions

4. Consideration of the fifth question: possible justification for rules on the prior approval of competitions and on the participation of clubs and of sportspersons in those competitions

(a) Consideration of the possibility of finding certain specific conduct not to come within the scope of Article 101(1) and Article 102 TFEU

(b) The exemption under Article 101(3) TFEU

(c) Objective justification under Article 102 TFEU

5. Consideration of the fourth question: the interpretation of Articles 101 and 102 TFEU in situations involving rules on rights related to sporting competitions

(a) The holding of rights related to sporting competitions

(b) The exploitation of rights related to sporting competitions

(c) Whether there is justification

C. Consideration the sixth question: freedoms of movement

1. Identification of the relevant freedom of movement

2. The existence of an obstacle to freedom to provide services

3. Whether there is justification

Costs

(Request for a preliminary ruling – Competition – Internal market – Rules introduced by international sports associations – Professional football – Private law entities vested with regulatory, control and decision-making powers, and the power to impose sanctions – Rules on prior approval of competitions, on the participation of football clubs and players in those competitions, and also on the exploitation of commercial and media rights related to those competitions – Parallel pursuit of economic activities – Organisation and marketing of competitions – Exploitation of related commercial and media rights – Article 101(1) TFEU – Decision by an association of undertakings adversely affecting competition – Concepts of anticompetitive ‘object’ and ‘effect’ – Exemption under Article 101(3) TFEU – Conditions – Article 102 TFEU – Abuse of dominant position – Justification – Conditions – Article 56 TFEU – Restrictions on the freedom to provide services – Justification – Conditions – Burden of proof)

In Case C‑333/21,

REQUEST for a preliminary ruling under Article 267 TFEU from the Juzgado de lo Mercantil de Madrid (Commercial Court, Madrid, Spain), made by decision of 11 May 2021, received at the Court on 27 May 2021, in the proceedings

European Superleague Company SL

v

Fédération internationale de football association (FIFA),

Union of European Football Associations (UEFA),

intervening parties:

A22 Sports Management SL,

Real Federación Española de Fútbol (RFEF),

Liga Nacional de Fútbol Profesional (LNFP),

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, L. Bay Larsen, Vice-President, A. Arabadjiev, A. Prechal, K. Jürimäe and O. Spineanu-Matei, Presidents of Chambers, J.-C. Bonichot, M. Safjan, L.S. Rossi, I. Jarukaitis, A. Kumin, N. Jääskinen, N. Wahl, J. Passer (Rapporteur) and M. Gavalec, Judges,

Advocate General: A. Rantos,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 11 and 12 July 2022,

after considering the observations submitted on behalf of:

– European Superleague Company SL, by J.-L. Dupont, avocat, B. Irissarry Robina and M. Odriozola Alén, abogados,

– the Fédération internationale de football association (FIFA), by J.M. Baño Fos, abogado, M. Hoskins, Barrister, and A. Pascual Morcillo, abogado,

– the Union of European Football Associations (UEFA), by H. Brokelmann, abogado, B. Keane, avocat, S. Love, Barrister, D. Slater and D. Waelbroeck, avocats,

– A22 Sports Management SL, by L.A. Alonso Díez, F. Giménez-Alvear Gutiérrez-Maturana, F. Irurzun Montoro, abogados, and M. Sánchez-Puelles González-Carvajal, procurador,

– the Real Federación Española de Fútbol (RFEF), by P. Callol García, abogado, B. González Rivero, procuradora, T. González Cueto and J. Manzarbeitia Pérez, abogados,

– the Liga Nacional de Fútbol Profesional (LNFP), by D. Crespo Lasso de la Vega, Y. Martínez Mata, M. Pajares Villarroya, J. Ramos Rubio and S. Rating, abogados,

– the Spanish Government, by L. Aguilera Ruiz and A. Gavela Llopis, acting as Agents,

– the Czech Government, by M. Smolek and J. Vláčil, acting as Agents,

– the Danish Government, by J. Farver Kronborg, V. Pasternak Jørgensen, M. Søndahl Wolff and Y. Thyregod Kollberg, acting as Agents,

– the German Government, by J. Möller, acting as Agent,

– the Estonian Government, by N. Grünberg, acting as Agent,

– Ireland, by M. Browne, Chief State Solicitor, A. Joyce and M. Tierney, acting as Agents, and by S. Brittain, Barrister at Law,

– the Greek Government, by K. Boskovits, acting as Agent,

– the French Government, by A.-L. Desjonquères, P. Dodeller, T. Stehelin and N. Vincent, acting as Agents,

– the Croatian Government, by G. Vidović Mesarek, acting as Agent,

– the Italian Government, by G. Palmieri, acting as Agent, and by D. Del Gaizo and S.L. Vitale, avvocati dello Stato,

– the Cypriot Government, by I. Neophytou, acting as Agent,

– the Latvian Government, by J. Davidoviča, K. Pommere and I. Romanovska, acting as Agents,

– the Luxembourg Government, by A. Germeaux and T. Uri, acting as Agents,

– the Hungarian Government, by M.Z. Fehér, E. Gyarmati and K. Szíjjártó, acting as Agents,

– the Maltese Government, by A. Buhagiar, acting as Agent,

– the Austrian Government, by F. Koppensteiner, acting as Agent,

– the Polish Government, by B. Majczyna and M. Wiącek, acting as Agents,

– the Portuguese Government, by P. Barros da Costa, R. Capaz Coelho and C. Chambel Alves, acting as Agents, and by J.L. da Cruz Vilaça, advogado,

– the Romanian Government, by E. Gane, L. Liţu and A. Rotăreanu, acting as Agents,

– the Slovenian Government, by A. Dežman Mušič and N. Pintar Gosenca, acting as Agents,

– the Slovak Government, by E.V. Drugda and B. Ricziová, acting as Agents,

– the Swedish Government, by O. Simonsson, M. Salborn Hodgson and H. Shev, acting as Agents,

– the Icelandic Government, by J.B. Bjarnadóttir, acting as Agent, and by G. Bergsteinsson, lawyer,

– the Norwegian Government, by F. Bersgø, L.-M. Moen Jünge, O.S. Rathore and P. Wennerås, acting as Agents,

– the European Commission, by S. Baches Opi, M. Mataija, G. Meessen, C. Urraca Caviedes and H. van Vliet, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 15 December 2022,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Articles 101 and 102 TFEU, on the one hand, and Articles 45, 49, 56 and 63 TFEU, on the other.

2 The request has been made in proceedings between, on the one hand, European Superleague Company SL (‘ESLC’) and, on the other, the Fédération internationale de football association (‘FIFA’) and the Union of European Football Associations (‘UEFA’), concerning an application seeking a declaration to the effect that FIFA and UEFA infringed Articles 101 and 102 TFEU, an order to cease the infringing conduct and the issuance of various injunctions in respect of those entities.

I. Legal context

A. The FIFA Statutes

3 FIFA is an association governed by private law having its headquarters in Switzerland. Article 2 of its Statutes, in the edition of September 2020 referred to in the order for reference (‘the FIFA Statutes’), states that its objectives include, inter alia, ‘to...