International Skating Union v European Commission.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:1012
• Date: 21 December 2023
• Docket Number: C-124/21
• Celex Number: 62021CJ0124
• Court: Court of Justice (European Union)

JUDGMENT OF THE COURT (Grand Chamber)

21 December 2023 (*)

Table of contents

I. Background to the dispute

A. The ISU

B. The rules issued by the ISU

1. The prior authorisation rules

2. The eligibility rules

C. The administrative procedure and the decision at issue

D. The action before the General Court and the judgment under appeal

II. Forms of order sought by the parties

III. The appeal

A. The first ground of appeal

1. Arguments of the parties

(a) The first part

(b) The second part

(c) The third part

2. Findings of the Court

(a) The applicability of Article 101 TFEU to sport as an economic activity

(b) Article 101(1) TFEU

(1) The categorisation of the existence of conduct having as its ‘object’ or ‘effect’ the prevention, restriction or distortion of competition, within the meaning of Article 101(1) TFEU

(i) The categorisation of the existence of conduct having as its ‘object’ the prevention, restriction or distortion of competition

(ii) The categorisation of the existence of conduct having as its ‘effect’ the prevention, restriction or distortion of competition

(2) The possibility of considering that certain specific conduct does not come under Article 101(1) TFEU

(c) The infringement found in the present case

(d) The existence of conduct having as its ‘object’ the restriction of competition in the present case

(1) The applicability in the present case of the case-law arising from the judgments of 1 July 2008, MOTOE (C49/07, EU:C:2008:376), and of 28 February 2013, Ordem dos Técnicos Oficiais de Contas (C1/12, EU:C:2013:127)

(2) The classification of the conduct at issue in the present case

B. The second ground of appeal

1. Arguments of the parties

2. Findings of the Court

IV. The cross-appeal

A. The first ground of appeal

1. Arguments of the parties

2. Findings of the Court

(a) The admissibility and effectiveness of the ground of appeal

(b) Substance

B. The second ground of appeal

1. Arguments of the parties

2. Findings of the Court

V. The action in Case T93/18

A. Arguments of the parties

B. Findings of the Court

VI. Costs

(Appeal – Competition – Rules introduced by an international sports association – Skating – Private law entity vested with regulatory, control and decision-making powers, and the power to impose sanctions – Rules on the prior approval of competitions, the participation of athletes in those competitions and the arbitration rules governing conflicts – Parallel pursuit of economic activities – Organisation and marketing of competitions – Article 101(1) TFEU – Decision by an association of undertakings adversely affecting competition – Concepts of anticompetitive ‘object’ and ‘effect’ – Justification – Conditions)

In Case C‑124/21 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 26 February 2021,

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

appellant,

the other parties to the proceedings being:

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

defendant at first instance,

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

Niels Kerstholt, residing in Zeist (Netherlands),

European Elite Athletes Association, established in Amsterdam (Netherlands), represented by B.J.H. Braeken, T.C. Hieselaar and X.Y.G. Versteeg, advocaten,

interveners at first instance,

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: C. Di Bella, Administrator,

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

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

gives the following

Judgment

1 By its appeal, the International Skating Union (‘the ISU’) seeks to have set aside in part the judgment of the General Court of the European Union of 16 December 2020, International Skating Union v Commission (T‑93/18, ‘the judgment under appeal’, EU:T:2020:610), by which the General Court dismissed in part its action for annulment of Commission Decision C(2017) 8230 final of 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 decision at issue’).

2 By their cross-appeal, Mr Mark Jan Hendrik Tuitert, Mr Niels Kerstholt and the European Elite Athletes Association (‘EU Athletes’) also seek to have set aside in part the judgment under appeal.

I. Background to the dispute

3 The factual background to the dispute, as set out in paragraphs 1 to 37 of the judgment under appeal, may be summarised as follows.

A. The ISU

4 The ISU is an association governed by private law which has its headquarters in Switzerland. It describes itself as the only international sports federation recognised by the International Olympic Committee (‘the IOC’) in the field of figure skating and speed skating (‘skating’). Its bodies include a ‘legislative body’ called ‘the Congress, which is the ‘highest-ranking body’, and an ‘executive body’, known as ‘the Council’.

5 The members of that association are figure-skating and speed-skating national associations, whose members or affiliates are in turn associations and clubs to which, in particular, professional athletes practising those sporting disciplines as an economic activity belong.

6 According to Article 1(1) and Article 3(1) of its Statutes, to which the decision at issue refers, the aim of the ISU is to regulate, administer, govern and promote skating throughout the world.

7 At the same time, it carries out an economic activity, consisting in particular of organising international skating events and exploiting the rights associated with those events. In the field of speed skating, those include, among others, the Speed Skating and Short Track Speed Skating World Cups and various international and European championships. The ISU is also responsible for organising skating events which take place in the context of the Olympic Winter Games.

B. The rules issued by the ISU

8 The ISU has set out and published a set of rules, codes and communications, including inter alia the following rules.

1. The prior authorisation rules

9 On 20 October 2015, the ISU published Communication No 1974, entitled ‘Open International Competitions’, which sets out the procedure to follow in order to obtain advance authorisation to organise an international skating competition and which is applicable both to national associations that are ISU members and any third-party entity or undertaking (‘the prior authorisation rules’).

10 That communication states, first of all, that the organisation of such competitions is subject to prior authorisation by the ISU and must be conducted in accordance with the regulations set out by that association. It states, inter alia, in that regard, that the time limit for submission of an application for prior authorisation is six months prior to the intended starting date of the competition if it is to be organised by a third-party entity or undertaking and three months before that date if the organiser is a national association that is an ISU member.

11 Next, that communication sets out a series of general, financial, technical, commercial, sporting and ethical requirements with which any organiser of a skating competition must comply. It follows from those requirements, in particular, that any application for prior authorisation must be accompanied by financial, technical, commercial and sporting information (including the venue of the planned event, value of the prizes to be awarded, business plan, budget, television coverage), that any organiser must submit a declaration confirming that it accepts the ISU’s Code of Ethics and that the ISU may request that further information be submitted to it on those various matters.

12 Lastly, Communication No 1974 authorises the ISU to accept or reject an application for prior authorisation submitted to it on the basis of the requirements set out in that communication and on the basis of the fundamental objectives pursued by that association, as defined, in particular, in Article 3(1) of its Statutes. That communication also provides that, in the event that such an application is rejected, an organiser may lodge an appeal against the ISU’s decision before the Court of Arbitration for Sport (‘the CAS’), established in Lausanne (Switzerland), in accordance with the rules adopted by the ISU with a view to establishing a dispute resolution mechanism (‘the arbitration rules’).

2. The eligibility rules

13 The ISU General Regulations include rules identified as ‘eligibility rules’, which determine the conditions in which athletes may take part in skating competitions. Those eligibility rules provide that such competitions must, first, have been authorised by the ISU or its members and, second, comply with the rules established by that association.

14 In the version adopted in 2014, those eligibility rules also contained inter alia Rule 102(1)(a)(i), according to which 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’, and Rule 102(1)(a)(ii), which stated that ‘the condition of eligibility is 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 … sport disciplines and for the support and benefit of [its] Members and their Skaters’.

15 Those rules also contained Rule 102(2)(c), Rule 102(7) and Rule 103(2), from which it...