Opinion of Advocate General Rantos delivered on 15 December 2022.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:988
• Date: 15 December 2022
• Celex Number: 62021CC0124
• Court: Court of Justice (European Union)

OPINION OF ADVOCATE GENERAL

RANTOS

delivered on 15 December 2022 (1)

Case C‑124/21 P

International Skating Union

v

European Commission

(Appeal – Competition – Rules established by an international sports federation which simultaneously makes use of regulatory powers and carries out an economic activity – Rules relating to the authorisation of events, the participation of athletes therein and the arbitration rules governing conflicts – Article 101(1) TFEU – Restriction of competition by object – Justification)

I. Introduction

1. By its appeal, the International Skating Union (‘the ISU’ or ‘the appellant’) 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 Decision C(2017) 8230 final of the European Commission, 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 decision at issue’).

2. At the same time, a cross-appeal, also seeking to have set aside in part the judgment under appeal, was lodged by the two athletes whose complaint had led the Commission to initiate proceedings against the ISU, namely Mr Tuitert and Mr Kerstholt, and by the European Elite Athletes Association, interveners at first instance (‘the interveners’ and ‘the cross-appellants’).

3. Like Case C‑333/21, European Superleague Company, in which my Opinion is being delivered on the same day, the present case is central to the issue of the relationship and interplay between competition law and sport, and raises questions which, as well as being in some cases legally unprecedented, are also of major importance from an ‘existential’ perspective for sports federations.

II. Background to the dispute

4. The background to the dispute is set out in paragraphs 1 to 37 of the judgment under appeal and, for the purposes of this Opinion, may be summarised as follows.

A. Factual background

5. The ISU is the only international sports federation recognised by the International Olympic Committee (‘the IOC’) in the field of figure skating and speed skating on ice. It is composed of national skating associations (federations), the members of which are clubs and skaters.

6. The ISU has a dual function in so far as its purpose is, on the one hand, to regulate, organise, govern and promote figure skating and speed skating on ice at worldwide level and, on the other hand, to carry out the economic activity of organising international ice skating events.

7. In the context of its ‘regulatory’ functions, the ISU has issued a set of regulations, codes and communications, which include the following rules. The ISU General Regulations cover rules identified as ‘eligibility rules’, which determine the conditions in which athletes may participate in ice skating events. Those eligibility rules provide that such events must, first, have been authorised by the ISU or its members and, secondly, comply with the rules established by that federation.

8. In the version adopted during 2014, those eligibility rules included, inter alia, Rule 102(2)(c), Rule 102(7) and Rule 103(2), from which it followed that, if an athlete participated in a competition not authorised by the ISU or by one of its members, the person concerned would be exposed to a penalty of a lifetime ban from any competition organised by the ISU.

9. The eligibility rules also contained 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 [Constitution], 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’.

10. In 2016, the eligibility rules were revised.

11. According to Rule 102(7), as revised, the penalties provided for in the event of an athlete’s participation in an event not authorised by the ISU are to be determined in accordance with the seriousness of the infringement and include a warning in the case of a first infringement, a ban of up to 5 years in the event of negligent participation in a non-unauthorised event, a ban of up to 10 years for deliberate participation in such an event and a lifetime ban for an infringement deemed to be ‘very serious’.

12. In addition, Rule 102(1)(a)(ii), as revised, no longer refers to the adequate protection of the ISU’s economic interests and provides instead that ‘the condition of eligibility [is] made for adequate protection of the ethical values, jurisdiction objectives and other legitimate respective interests’ of that federation, 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’.

13. Alongside those various rules, Article 25 of the ISU Constitution, as applicable since 30 June 2006, has provided for the possibility for athletes who wish to challenge a decision on ineligibility concerning them to lodge an appeal against that decision exclusively before the Court of Arbitration for Sport (‘the CAS’), established in Lausanne (Switzerland).

14. On 25 October 2015, the ISU published Communication No 1974 (‘Communication No 1974’), entitled ‘Open international competitions’, which sets out the procedure to be followed in order to obtain authorisation to organise an international ice skating competition and is applicable to members of that federation and to third-party organisers.

15. That communication states that all such events must be authorised in advance by the ISU and organised in accordance with the rules established by that federation. The communication also sets out a series of general, financial, technical, sporting and ethical requirements with which any organiser of an ice skating event must comply. Those requirements provide, in particular, that any request for authorisation must be accompanied by technical and sporting information (venue of the event, value of the prizes to be awarded, business plans, budget, television coverage, etc.), that any organiser must submit a declaration confirming that he or she accepts the ISU’s Code of Ethics and that the ISU may request further information on those various matters. As is apparent from Article 4(h) of the ISU Code of Ethics, as applicable since 25 January 2012, any organiser must, inter alia, ‘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.

16. Accordingly, Communication No 1974 authorises the ISU to accept or reject a request for authorisation on the basis of the requirements set out in that communication and on the basis of the fundamental objectives pursued by that federation, as defined, in particular, in Article 3(1) of its constitution. In the event that a request is rejected, an organiser may appeal before the CAS, in accordance with the ISU’s procedural rules.

17. Finally, that communication provides that any organiser of an ice skating event is required to pay a solidarity contribution to the ISU, the amount of which is to be determined on a case-by-case basis and which is intended for the promotion and development of the sporting disciplines under the supervision of that federation.

B. The administrative procedure and the decision at issue

18. On 8 December 2017, the Commission adopted the decision at issue, which relates both to the ISU rules adopted during 2014 and to those resulting from the revision which was carried out in 2016.

19. In that decision, the Commission, in the first place, defined the relevant market as the worldwide market for the organisation and marketing of international speed skating events. The Commission also noted that the ISU had the ability to have a substantial impact on competition on that market in its dual capacity as the body with the power to authorise international speed skating events and as the body responsible for organising the most important of those events.

20. In the second place, the Commission considered that the ISU could be regarded as an association of undertakings and that the rules adopted by it constituted a decision by such an association of undertakings within the meaning of Article 101(1) TFEU.

21. In the third place, the Commission considered that the eligibility and authorisation rules established by the ISU had the object of restricting competition within the meaning of Article 101(1) TFEU, on the ground, essentially, that an examination of the content of those rules, their objectives and the economic and legal context of which they formed part showed that those rules could be used to prevent potential organisers of international speed skating events competing with ISU events from entering the relevant market and that those rules were such as to restrict the possibilities for professional speed skaters to take part freely in such events and to deprive potential organisers of such events of the services of the athletes whose participation was necessary for such events to be held.

22. In the fourth place, the Commission noted that there was no need to examine the effects of the rules in question on competition, before setting out its reasons for considering that those rules also had anticompetitive effects.

23. In the fifth place, the Commission found, essentially, that those rules could not be regarded as falling outside the scope of Article 101(1) TFEU on the ground that they constituted...