Recent Case Law (Meca-Medina & Majken vs EU Commission)
Judgement of the European Court in Case C-519/04 P (18 July 2006)
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1. A quite recent judgement of the European Court comes to cope with purely sports legal matters about one year after the Simutenkov case. Once again the Court has been called to tackle the question of the relationship between lex sportiva and European law, however, this time in the dock was put IOC, the supreme authority of the Olympic Movement and its antidoping regulations!
2. In particular, the Court has been asked to adjudicate a) on the compatibility of certain regulations and practices relating to doping control adopted by the IOC and implemented by FINA with the Community rules on competition and freedom to provide services as well as b) whether the IOC and the 27 laboratories accredited by it, infringe, from the point of view of competition law, the rights which the athletes can assert under Articles 81 EC and 82 EC (restriction of competition, concerted practice and abuse of dominant position).
3. The European Court contrary to the opinion of the Advocate General, P. Lιger, reversed the decision of the Court of First Instance (T-313/2002) and ruled that the mere fact that a regulation is purely sporting in nature does not have the effect of removing from the scope of the Treaty the person engaging in the activity governed by that rule or the body which has laid it down. If the sporting activity in question falls within the scope of the Treaty, the conditions for engaging in it are then subject to all the obligations which result from the various provisions of the Treaty. It follows that the rules which govern that activity must satisfy the requirements of those provisions, which, in particular, seek to ensure freedom of movement for workers, freedom of establishment, freedom to provide services, or competition. Therefore, even if those rules do not constitute restrictions on freedom of movement because they concern questions of purely sporting interest and, as such, have nothing to do with economic activity, that fact means neither that the sporting activity in question necessarily falls outside the scope of Articles 81 EC and 82 EC nor that the rules do not satisfy the specific requirements of those articles.
4. However, although the Court set aside the judgment of the Court of First Instance, it dismissed the action for annulment of the Commission’s decision (COMP/38158) judging that not every agreement between undertakings nor every decision of an association of undertakings which restricts the freedom of action of the parties or of one of them necessarily falls within the prohibition laid down in Article 81(1) EC. As regards the overall context in which the rules at issue were adopted, the Commission could rightly take the view that the general objective of the rules was to combat doping in order for competitive sport to be conducted fairly and that it included the need to safeguard equal chances for athletes, athletes’ health, the integrity and objectivity of competitive sport and ethical values in sport. In addition, given that penalties are necessary to ensure enforcement of the doping ban, their effect on athletes’ freedom of action must be considered to be, in principle, inherent itself in the anti-doping rules. Therefore, even if the anti-doping rules at issue are to be regarded as a decision of an association of undertakings limiting the appellants’ freedom of action, they do not, for all that, necessarily constitute a restriction of competition incompatible with the common market, within the meaning of Article 81 EC, since they are justified by a legitimate objective. Such a limitation is inherent in the organisation and proper conduct of competitive sport and its very purpose is to ensure healthy rivalry between athletes.
5. The Court went on ruling that the penal nature of the anti-doping rules at issue and the magnitude of the penalties applicable if they are breached are capable of producing adverse effects on competition because they could, if penalties were ultimately to prove unjustified, result in an athlete’s unwarranted exclusion from sporting events, and thus in impairment of the conditions under which the activity at issue is engaged in. It follows that, in order not to be covered by the prohibition laid down in Article 81(1) EC, the restrictions thus imposed by those rules must be limited to what is necessary to ensure the proper conduct of competitive sport. Rules of that kind could indeed prove excessive by virtue of a) the conditions laid down for establishing the dividing line between circumstances which amount to doping in respect of which penalties may be imposed and those which do not, and b) the severity of those penalties. It is only if, having regard to scientific knowledge as it stood when the anti-doping rules at issue were adopted or even when they were applied to punish the appellants, in 1999, the threshold was set at such a low level that it should be regarded as not taking sufficient account of the phenomenon of the endogenously production of this substance, that those rules should be regarded as not justified in light of the objective which they were intended to achieve.
6. Although, the appellants contested that rule, asserting that the threshold adopted is set at an excessively low level which is not founded on any scientifically safe criterion, they do not specify at what level the threshold in question should have been set at the material time. Moreover the Court judging by the documents brought before it found that at the material time it was not established in any event that the risk reported by an expert that merely consuming a limited quantity of boar meat could cause entirely innocent athletes to exceed the threshold in question had been confirmed by the majority of the scientific community. Besides, the results of the studies and the experiments carried out on this point subsequent to the decision at issue had no bearing in any event on the legality of that decision.
Attorney at law, LLM Public Law
Hellenic Center of Research on Sports Law