Monday 20 May 2024

Compatibility of Member States’ Alcohol Health Warning Labelling with EU Law

 



Dr Nikhil Gokani, Lecturer in Consumer Protection and Public Health Law at the University of Essex, Chair of the Alcohol Labelling and Health Warning International Expert Group at the European Alcohol Policy Alliance, Vice President of the Law Section at the European Public Health Association, and member of the Technical Advisory Group on Alcohol Labelling at WHO.

 *This blog is a condensed version of the following article: N Gokani, ‘Booze, Bottles and Brussels: Member States’ Dilemma on Alcohol Health Warnings’ (2024) 13(2) Journal of European Consumer and Market Law 97-102. The full article is available here. An open access version is also available here.

Art credit: William Hogarth, Gin Lane

 

Alcohol and the need for effective alcohol labelling

Alcohol is a causal factor in more than 200 diseases, injuries and disabilities. Even at lower levels of consumption, alcohol is associated with increased risks of heart diseases and stroke, liver cirrhosis, cancers and foetal alcohol disorders. In the EU, alcohol consumption causes between 255,000 and 290,000 deaths per year. Beyond health, alcohol results in significant social and economic losses to individuals and society at large.

Despite negative consequences of drinking alcohol, consumer awareness of its harms is low. The World Health Organization (‘WHO’) has repeatedly called on States to provide consumers with essential information through alcohol labelling. The EU has itself acknowledged the importance of consumer alcohol information, reflecting the foundation of EU consumer protection policy that consumers can be empowered through becoming well informed.

EU level regulation of alcohol labelling

Current EU rules in Regulation 1169/2011 on the provision of food information to consumers (‘FIC Regulation’) require alcoholic beverages with a content over 1.2% alcohol by volume (‘ABV’) to include alcohol strength on the label. Other health-related information, including ingredients list and a nutrition declaration, which are required on the labels of most food products, are exempt for alcoholic beverages above 1.2% ABV. EU law does not require any other health-related information to appear on the label. 

Member State developments on alcohol labelling

Health-related warnings are not explicitly addressed under EU law and several Member States have introduced national mandatory labelling rules. These have focused on two forms on messaging: mandatory labelling relating to the age of consumption, and messaging against drinking during pregnancy. 

In October 2018, Ireland signed into law its Public Health (Alcohol) Act 2018. In May 2023, Ireland signed into law as its Public Health (Alcohol) (Labelling) Regulations 2023. From May 2026, non-reusable alcohol containers will be required to include the following labelling. 


While feedback from civil society organisations representing public health and consumer protection expressed strong support, industry bodies from across the globe responded opposing the measure. The feedback questioned the compatibility of the Irish Regulations, and warning labelling in general, with EU law in three key ways, which are addressed in turn below.

Legal objection 1: The Irish rules constitute a discriminatory barrier to free movement

National labelling rules fall within the scope of the FIC Regulation, adopted under the competence the EU shares with Member States in the internal market.

In respect of matters not “specifically harmonised” by the FIC Regulation, there appears to be minimum harmonisation: Article 38(2) permits Member States to adopt certain national measures. Health warnings are not explicitly mentioned in the FIC Regulation, which might suggest health warning labelling is not “specifically harmonised”. Therefore, Member States may introduce national measures providing these do not undermine the protection in the FIC Regulation and are not contrary to general Treaty provisions.

In respect of matters which are “specifically harmonised” by the FIC Regulation, there appears to be maximum harmonisation: a declared desire to create uniform protection; an exclusivity clause, which prohibits the sale of non-compliant goods; and a market access clause which precludes national measures unless authorised by EU law. The mandatory particulars have been fully considered and listed, suggesting that mandatory labelling particulars have been “specifically harmonised” and therefore subject to maximum harmonisation. If alcohol health warning labelling is “specifically harmonised”, Member States may not undermine the protection in the FIC but may exceed it subject to general Treaty rules where the FIC Regulation itself allows. In this respect, the FIC Regulation includes a derogation which could allow Member States to exceed the standards under Article 39(1) to adopt rules requiring additional mandatory particulars justified on public health or consumer protection grounds.

Therefore, irrespective of whether health warnings labelling is specifically harmonised or not, under existing harmonisation, Member States are able to move forward with national warning labelling.

Legal objection 2: That the Irish rules are not consistent with existing EU harmonisation

The base protections set out in the FIC Regulation, which Member States may not undermine, are set out in Article 7 FIC as “fair information practices”. Food information shall be “accurate”, “clear and easy to understand”, and “not be misleading” particularly as to the “characteristics of the food” or “by attributing to the food effects or properties which it does not possess”.

Accurate: The Irish labelling is accurate when assessed against ordinary principle of scientific consensus. The evidence that “Drinking alcohol causes liver disease” is well-established, even with relatively lower levels of consumption and increasing with higher consumption. The evidence on the dangers of drinking during pregnancy is also clear. Alcohol intake can affect ability to conceive; brings about pregnancy complications; and interferes with foetal development known as foetal alcohol spectrum disorders, including low birth weight, small for gestational age and preterm birth. No amount of alcohol is considered safe during pregnancy. There is also well-established evidence that “There is a direct link between alcohol and fatal cancers”. Alcohol is classified as a group 1 carcinogen by the WHO International Agency for Research on Cancer as there is a proven causal link between alcohol and at least seven cancers. The risks arise irrespective of the type of alcohol consumed, exist at lower levels and increase with higher consumption.

Clear: The requirement that information is “clear” relates to legibility and visibility. The Irish warnings are likely to meet this requirement not least as they appear against a white background, are within a black box and have a minimum size.

Not misleading: The Irish labelling is also not misleading. In line with broader consumer protection in the internal market, compliance with information rules is assessed against the behaviour of the “average consumer who is reasonably well informed and reasonably observant and circumspect taking into account social, cultural and linguistic factors”. This notional average is an active player in the market who reads information, has background knowledge, is critical towards information, does not take information literally, and will not be misled easily if sufficient information is available. This average consumer is likely to understand the meaning in the labelling. Indeed, the pregnancy warning simply advises women not to drink during pregnancy as per national health guidance. The message that “There is a direct link between alcohol and fatal cancers” communicates association with fatal cancers but does not go as far as communicating a direct causal relationship notwithstanding the well-established evidence on causation. The warning that “Drinking alcohol causes liver disease” is not misleading as liver disease occurs with even relatively lower levels of consumption.

Legal objection 3: That the Irish rules are not proportionate

National alcohol labelling must also be proportionate, which it is when it is suitable and necessary to achieve its objective.

Legitimate objective: The primary objective for health messaging labelling is to inform consumers. While informing consumers appears to be the primary objective, this is part of a broader, secondary objective of reducing consumption. As the Irish Regulations have been introduced under the Article 39 derogation, the objectives are limited to “the protection of public health” and “the protection of consumers”. Alcohol control clearly falls within these broad grounds as the CJEU has consistently held that combating alcohol-related harm is an important and valid goal.

Suitability: Under the suitability limb of proportionality, it is necessary to determine whether the proposed labelling can attain its objectives of informing consumers and contributing to reduction in consumption as part of a broader suite of measures. In respect of the primary objective, evidence demonstrates that there is a deficit of knowledge about the health consequences of alcohol consumption and labelling informs consumers. Studies show that alcohol health warnings specifically lead to increased knowledge of health risks, including cancer, liver disease and pregnancy. Indeed, EU law already requires certain food products to be labelled with health warnings. As regards the secondary objective, there is also evidence supporting the contribution of labelling to reduction in harms and consumption.

Necessity: Under the necessity limb of proportionality, it must be determined whether a less intrusive measure can be equally effective as the proposed labelling to attain the objectives. Other measures are not equally effective. Labelling is available at both the point of purchase and point of consumption. Labelling is available on every container. It is targeted so that everyone can see the label when they see alcohol. It mitigates the effect of promotional marketing messaging on labelling. Ongoing costs are minimal. Moreover, the CJEU has consistently held that labelling is less restrictive than other interventions.

Moving towards effective alcohol health warning labelling

The objections raised by industry, that EU food law is a barrier to national rules on alcohol health warning labelling, are legally unsustainable. Therefore, in the absence of EU level action, Member States must take responsibility for moving forward independently. Let us hope the rest of the EU follows Ireland’s lead.

Nevertheless, EU institutions must also support Member States to tackle alcohol-related harm. Tides appeared to be turning with Europe’s Beating Cancer Plan, in which the Commission committed to introduce proposals on alcohol health warning labelling by the end of 2023, but the deadline has passed with no formal action. Let us also hope the EU decides to prioritise the health of consumers over the interests of economic actors.

 

 

 

 

Saturday 18 May 2024

Will the AI Act Bring More Clarity to the Regulation of Text and Data Mining in the EU?

 



 

Maryna Manteghi, PhD researcher, University of Turku, Finland

 

Photo credit: mikemacmarketing and Liam Huang, on Flickr via Wikimedia Commons

 

 

Background

 

The Artificial Intelligence Act (AIA), “the first-ever legal framework on AI, which addresses the risks of AI and positions Europe to play a leading role globally” (according to the European Commission), contains two provisions which are relevant to copyright. In particular, Article 53 (1) (c) (d) requires providers of general-purpose AI models first, to comply with “Union law on copyright and related rights…in particular to identify and comply with…a reservation of rights expressed pursuant to Article 4(3) of Directive (EU) 2019/790,” and second, to “draw up and make publicly available a sufficiently detailed summary about the content used for training of the general-purpose AI model…”. The provisions have been added to the text of the Act to address the risks associated with the development and exploitation of generative AI (GenAI) models such as ChatGPT, MidJourney, Dall-E, GitHub Copilot and others (see the Draft Report of the European Parliament).

 

TDM in the context of copyright

 

AI systems have to be trained on huge amounts of existing data including copyright-protected works to be able to perform a wide range of challenging tasks and generate different types of content (e.g., texts, images, music, computer programs etc.,) (for technical aspects see e.g., Avanika Narayan et al). In other words, GenAI models have to learn the inherent characteristics of real-world data to generate creative content on demand. AI developers employ various automated analytical techniques to train their systems on actual data. One example is text and data mining (TDM), the concept which involves techniques and methods needed to extract new knowledge (e.g., patterns, insights, trends etc.,) from Big Data (for a general overview of TDM techniques and methods see e.g., Jiawei Han et al). A computer typically makes copies of collected works to be able to mine (train) AI algorithms.

 

TDM requires processing of huge amounts of data, thus training datasets may also contain copyright-protected works (e.g., books, articles, pictures, etc.,). However, unauthorised copying of protected works may potentially infringe one of the exclusive rights of copyright holders, in particular the right to reproduction granted to authors under Article 2 of the Directive on copyright in the information society (the InfoSoc Directive). To prevent the risk of copyright infringement, providers of GenAI have to negotiate licenses over protected works or rely on a so-called “commercial” TDM exception provided under Art. 4 of EU Directive 2019/790 on copyright in the digital single market (CDSM), which, as we have seen above, is referred to in the AI Act. The provision has been adopted alongside the “scientific research” TDM exception (Art. 3 of CDSM) to provide more legal certainty specifically for commercially operating organisations.

 

However, providers of GenAI models have to meet two-fold requirements to enjoy the exception of Art. 4 of CDSM. First, they need to obtain “lawful access” to data they wish to mine through contractual agreements, and subscriptions, based on open access policy or through other lawful means, or use only materials which are freely available online (Art. 4 and Recital 14 of CDSM). Second, AI developers have to check whether rightholders have reserved the use of their works for TDM by using machine-readable means, including metadata and terms and conditions of a website or a service or through contractual agreements or unilateral declarations, or not (Art. 4 (3) and Recital 18 of CDSM).

 

The copyright-related obligations of the AI Act: a closer look

 

It appears that Article 53 (1) (c) of the Artificial Intelligence Act ultimately dispelled all doubts regarding the relevance of Article 4 of CDSM to AI training by obliging providers of GenAI to comply with the reservation right granted to rightholders under this provision. The arguments in favour of this idea could also be derived from the broad definition of TDM included in the text of CDSM (“any automated analytical technique aimed at analysing text and data in digital form in order to generate information…” Article 2 (2) CDSM) and the aim of Article 4 of CDSM that is to enable the use of TDM by both public and private entities for various purposes, including for the development of new applications and technologies (Recital 18 of CDSM) (see e.g., Rosati here and here; Ducato and Strowel; and Margoni and Kretschmer).

 

Further, the new transparency clause of the AI Act requiring providers of GenAI models to reveal data used for pre-training and training of their systems (Article 53 (1) (d) of AIA and recital 107) could also bring more certainty in the context of AI training and copyright. Recital 107 of the Act clarifies that providers of GenAI models would not be required to provide a technically detailed summary of sources where mined data were scraped but it would be sufficient to list “the main data collections or sets that went into training the model, such as large private or public databases or data archives, and by providing a narrative explanation about other data sources used”. This clarification could make the practical implementation of the transparency obligation less burdensome for AI developers taking into account huge masses of data used for mining (training) of AI algorithms. The transparency obligation under Article 53 (1) (d) of the Act would allow rightholders to determine whether their works have been used in training datasets or not and if needed, opt out of them. Therefore, the provision would literarily enable the work of an “opt-out” mechanism of Article 4 (3) of CDSM.

 

However, the “commercial” TDM exception may not be a proper solution for AI developers as their ability to train (and thus develop) their systems would depend on the discretion of rightholders. What does it exactly mean? Put simply, there are some issues which could restrict or even prohibit the application of TDM techniques. First, the exception can be overridden by a contract under Article 7 of the CDSM Directive. Second, rightholders may restrict access to their works for TDM by not issuing licenses or raising licensing/subscription fees. Moreover, even if users would be lucky enough to obtain “lawful access” to protected works rightholders can prohibit TDM in contracts, terms and conditions of their websites or by employing technological protection measures. Third, rightholders may employ an “opt-out” mechanism to reserve the use of their works for TDM, thereby obliging TDM users to pay twice- first to acquire “lawful access” to data and a second time to mine (analyse) it (see Manteghi). In this sense, rightholders literally would control innovation and technological progress in the EU as the development of AI technologies heavily relies on TDM tools.

 

Concluding thoughts

 

To sum up, the copyright-related obligations of the AI Act could alleviate (to some extent) the conflict of interest between copyright holders and providers of GenAI models, providing that training of AI models should be covered by the specific copyright exception and be subject to a transparency obligation would bring more clarity to the regulation of AI development. However, major concerns remain regarding the excessive power granted to rightholders under the “lawful access” requirement and the right to reservation of Article 4 of CDSM. The author of this blog does not support the idea of making copyright-protected works freely available for everyone but rather wants to emphasise the risks of the deceptively broad “commercial” TDM exception. The future of AI development, innovation and research should not be left at the discretion of copyright holders. The purpose of AI training is not to directly infringe copyright holders' exclusive rights but to extract new knowledge for developing advanced AI systems that would benefit various fields of our lives. Therefore, the specific TDM exceptions should balance the competing interests in practice and not tip the scales in favour of a particular stakeholder that would only create more tension in the rapidly evolving algorithmic society.

Wednesday 15 May 2024

We’re all trying to find the Guy who did this … The Disapplication of the Illegal Migration Act in Northern Ireland


 

Professor Colin Murray, Newcastle Law School

Photo credit: Wknight94, via Wikimedia Commons

 

Introduction

The courtroom was anything but packed on a grey Monday morning in Belfast. There were no camera crews outside. And yet, for a small band of cognoscenti who gathered to hear Humphreys J’s decision, something significant was about to happen. The UK Government’s keystone migration legislation, the Illegal Migration Act 2023 (providing for the “outsourcing” of asylum claims to third countries), was about to be confronted with the fact that it had made extensive rights commitments specific to Northern Ireland within the UK-EU Withdrawal Agreement. Either these immigration measures were going to be found not to apply to Northern Ireland, or some violence was going to be inflicted upon the rights commitments made to Northern Ireland.

The momentousness of this moment should not have come as a surprise; the workings of Article 2 of the Windsor Framework were settled as far back as 2018, whereas other special post-Brexit provisions for Northern Ireland have been repeatedly redrawn. In 2021, its operation was described by the UK Government as “not controversial”, at a time when they were eager to see significant changes to other parts of the then Protocol. The significance of Article 2 has been highlighted many, many, many times on this blog. So how did the judgment in Re NIHRC’s Application sneak up on the UK Government?

Article 2

Article 2 of the Northern Ireland Protocol (as was) was a vital provision for the UK’s Brexit policy. It provides:

1. The United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union, including in the area of protection against discrimination, as enshrined in the provisions of Union law listed in Annex 1 to this Protocol, and shall implement this paragraph through dedicated mechanisms.

2. The United Kingdom shall continue to facilitate the related work of the institutions and bodies set up pursuant to the 1998 Agreement, including the Northern Ireland Human Rights Commission, the Equality Commission for Northern Ireland and the Joint Committee of representatives of the Human Rights Commissions of Northern Ireland and Ireland, in upholding human rights and equality standards.

Whereas trade elements related to Northern Ireland could be connected to the 1998 Agreement (better known as the Belfast or Good Friday Agreement) through the operation of cross-border bodies, the connection with regard to rights and equality law was direct. The 1998 Agreement set out a new basis for a post-conflict governance order in Northern Ireland based on the rights of everyone in the community, and in the years since the Agreement, extensive elements of those rights protections were grounded in EU law. The UK Government would have faced an uphill struggle to maintain that Brexit did not impact its commitment to the “letter and spirit” of the 1998 Agreement without providing specific rights and equality assurances in the Northern Ireland context.

In the SPUC case of 2023 the Northern Ireland Court of Appeal refined this commitment into a six stage test (para 54):

A right (or equality of opportunity protection) included in the relevant part of the Belfast/Good Friday 1998 Agreement is engaged.

That right was given effect (in whole or in part) in Northern Ireland, on or before 31 December 2020.

That Northern Ireland law was underpinned by EU law.

That underpinning has been removed, in whole or in part, following withdrawal from the EU.

This has resulted in a diminution in enjoyment of this right; and

This diminution would not have occurred had the UK remained in the EU.

Every element of this test must be fulfilled if a case based around non-diminution is to succeed.

The non-diminution commitment is not simply an international law obligation upon the UK; under section 7A of the European Union (Withdrawal) Act 2018, Article 2 appears to operate within the UK’s domestic jurisdictions with the same effect as EU law had prior to Brexit. In other words, reflecting the commitment in Article 4 of the Withdrawal Agreement to retaining the legal effect of EU law as regards the withdrawal agreement, this provision enables the courts to disapply statutes which conflict with its terms. And yet, in a bizarre hostage to fortune, when it was aware that legal challenges to the Illegal Migration Act under Article 2 were already underway, the UK Government issued assurances as part of the Safeguarding the Union Command Paper in January 2024 that ‘the Windsor Framework applies only in respect of the trade in goods’ (para 46). The new judgment undermines this claim (which, even at first glance, was always inaccurate).

The Illegal Migration Act

Section 2 of the Illegal Migration Act 2023 imposes a duty on the Home Secretary to make arrangements for the removal of the vast majority of asylum seekers who entered the UK after the Act was passed, including the sending of such individuals to Rwanda. Section 5 makes this duty applicable implicitly notwithstanding a range of international law, from the terms of the Refugee Convention to those of the European Convention on Human Rights (ECHR), which might ordinarily be asserted by the individual in question.

The 2023 Act is thus a difficult statute to effectively challenge on the basis of rights concerns. It excludes the use of the interpretive duty under section 3 of the Human Rights Act 1998 (ie the obligation to interpret domestic law compatibly with the ECHR ‘[s]o far as it is possible to do so’), leaving the domestic courts only able to declare the statute incompatible with the incorporated ECHR rights under section 4 of the Act (an outcome which does not impact the validity of the statute.) Although Humphreys J did find swathes of the Act incompatible with the ECHR rights as part of the Re NIHRC judgment, and therefore issued a declaration of incompatibility, this does not lead to any effective remedy.

The 2023 Act does not, however, negate the effect of claims made under Article 2 of the Windsor Framework insofar as it applies to Northern Ireland – a separate question from the compatibility of that Act with the Human Rights Act. And so the main arguments relating to the Act were thus channelled through the non-diminution commitment and into the way EU law still works in the Northern Ireland context, which held out the possibility of disapplication of the Illegal Migration Act.

The High Court Judgment

 

Disapplication of a statute is a significant outcome – as Humphreys J recognised in his decision “parliamentary sovereignty remains a fundamental tenet of our constitutional law” (para 37). But he also acknowledged that for as long as the UK was part of the EU, national law could not have legal effect insofar as it undermined EU law (the position reached in the Factortame case in the early 1990s). The issue was whether this approach continued to apply in the same way with regard to Article 2 of the Windsor Framework. For the UK Government Article 2 was simply an “an obligation of result”; it was not that the relevant elements of EU law continued to be “made applicable” in Northern Ireland law, but rather that Article 2 “set a benchmark by which rights can be measured and no diminution ensured” (para 49). The problem with this argument is that it flies in the face of the wording of Article 4 the Withdrawal Agreement and Parliament’s commitments under section 7A of the European Union (Withdrawal) Act; “its provisions … shall produce in the UK the same legal effects as those which they produce in EU Member States” (para 54). The Windsor Framework is an integral part of the Withdrawal Agreement and therefore “Factortame is still in play since the rights and obligations under the WA must prevail over any inconsistent domestic law” (para 57). There was nothing of legal significance to the UK Government’s supposed distinction between the provisions of the Agreement and EU law made applicable under it.  

The Government’s next ploy was to claim that the human rights obligations contained within the 1998 Agreement could not be applied to asylum seekers. In the Government’s view, that Agreement was all about “warring factions” in Northern Ireland, something that had no relevance to immigration policy. Remember that under the first limb of the SPUC test there must be a connection between the right being claimed and the 1998 Agreement (the whole point of the UK Government’s commitment was, after all, to insulate Brexit from claims that the 1998 Agreement was being undermined). Humprhreys J acknowledged that, in some cases, it will be a difficult task for the courts to establish the relevant connection:

Article 2 of the WF is an unusual provision in that it seeks to incorporate into law a chapter of the B-GFA which was never intended to create binding legal rights and obligations. It was the product of lengthy negotiations between political parties, the UK and Irish Governments, and contains statements of aspiration as well as legal right. A document renowned for its ‘constructive ambiguity’ does not lend itself easily to the tenets of statutory construction. (para 67)

This, however, is not one of those cases. The 1998 Agreement makes explicit commitments over the “civil rights … of everyone in the community”. A natural reading of these terms encompasses asylum seekers, and for Humphreys J, although the 1998 Agreement “did not expressly reference immigration or asylum, there is no basis to exclude such individuals from the wide compass of “everyone in the community” (para 69). The brilliance of this judgment is to directly face down the high-handed assumptions which underpinned the Government’s case. After decades of conflict, the 1998 Agreement made a commitment to ground the governance of Northern Ireland in the human rights of all; it did not treat human rights as being particularised to a sectarian context.

After these (always tenuous) arguments failed, the Government’s legal position collapsed. Most of the  public case around the Illegal Migration Act was that it was a great triumph of Brexit; the UK Government was able to put the Rwanda scheme in place because it could now depart from the requirements of the Qualification Directive, the Procedures Directive, the Dublin III Regulation and the Trafficking Directive. And so, time and again in the judgment, the Government accepted that the legislation involved a diminution of the protections mandated by these aspects of EU law; “the respondents accept that, in a category of case, the IMA, once in force, will result in a diminution of right” (para 116, see also para 133). For all the bluster that has accompanied the judgment, the UK Government knew (it did not need the court to rule) that it was acting to hollow out these EU law requirements. Indeed, it was able to do so, with regard to Great Britain, because of Brexit. It had not, however, given sufficient consideration to the implications of the specific commitments it had made in the Northern Ireland context.

It was thus straightforward for the Court to conclude that “there is a diminution of rights brought about by the enactment of the IMA” (para 117) and the remedy of disapplication of extensive provisions of the statute within the law of Northern Ireland flowed as a direct consequence of this. And who is responsible for this? Once again, Humphreys J is clear: “This outcome does not occur at the whim of the courts but represents the will of Parliament as articulated in the Withdrawal Act” (para 175).

Conclusion

The outcome in the High Court is therefore far from legally controversial. The UK Government’s efforts towards asserting that Article 2 was an obligation as to result, entirely within its keeping, was a desperate ploy, which would have denuded the entire provision of legal significance without any basis for doing so. Once this proposition was rejected, the Government’s case was lost, and it has found itself in a fluster ever since. Tom Pursglove went as far as to mislead Parliament in responding to an Urgent Question about the decision with an assertion that ‘our approach is compatible with international law’. It isn’t, and the UK Government accepted that it wasn’t when it enacted the legislation (it acknowledged, on introducing the legislation that, it could not issue a statement that the legislation was compatible with the ECHR). And yet it sticks doggedly to its claims that the court’s decision involved an unwarranted “expansion” of the 1998 Agreement.

The question remains, however, why this decision came as such a shock? Why were the media not primed and ready for a Northern-Ireland-shaped hole to be knocked in UK immigration policy? As so often in debates over Brexit, this surprise is largely the product of neglect of commitments made towards Northern Ireland. Article 2 was agreed as an essential part of closing off claims that Brexit undermined the rights elements of the 1998 Agreement, so many of which had come to be underpinned by EU law. But once this part of the deal was done, it quickly faded into the background.

The recurring crisis over trade policy consumed such attention that the UK Government lost sight of the fact that it had agreed to a higher baseline of rights commitments for Northern Ireland by comparison to the rest of the UK. When the law related to Northern Ireland is complex and unique it is all too easy for wishful thinking to become dominant in the corridors of Westminster and Whitehall. The Article 2 commitment doesn’t fit with the narrative of “take back control”, but the UK’s Conservative Government remains all too eager to present commitments it willingly made as hardships that have been inflicted upon it.       

 

Saturday 11 May 2024

Protecting the conditional autonomy of governing bodies in sport from review ‘from a competition standpoint’: how the Court should decide its pending cases on the transfer system, the regulation of agents and club (re-)location.

 




Stephen Weatherill

Jacques Delors Professor of European Law (Emeritus), Faculty of Law and Somerville College, University of Oxford

Photo: Lassana Diarra, by Рыбакова Елена, on Wikimedia Commons

 

In preparing this paper I have benefited from discussion with and comments by (in alphabetical order) Jean-Louis Dupont, Peter Heermann, Guillermo Íñiguez, Jacob Kornbeck, Miguel Maduro, Petros Mavroidis, Giorgio Monti, Damien Neven, Oke Odudu, Nada Ina Pauer, Michael Primbs, Steve Ross, Stefan Szymanski, Ben Van Rompuy, Jan Zglinski and Julien Zylberstein. Responsibility for all views expressed in this paper belongs with me alone. This, however, is not the usual disclaimer: let me be clear that not only do those named not necessarily agree with my views, but also some of those named strongly disagree with my views. In particular, attribute only to me, and to no one else, this paper’s recommendation to treat most governance practices in sport as a restriction of competition by effect, not by object.

 

1 Introduction – what I am worried about.

 

I have spent over 30 years defending the EU, and the Court of Justice in particular, from the allegation that, in the application of the law of its internal market, it lacks sensitivity to the special features of sport. Not so! Sporting practices which fall within the scope of EU law may be applied on condition that it is shown that they are necessary to achieve legitimate objectives and that they comply with the demands of the test of proportionality. This leaves room for governing bodies in sport to explain what they do and why they do it. This admirable model of ‘conditional autonomy’ is in danger. On 21 December 2023 the Court changed its approach. It restricted the scope for arguments specific to sport to be advanced in defence of practices reviewed against the demands of EU competition law. The risk is that in several pending cases concerning sport – the transfer system, the regulation of agents and club (re-)location - the Court will adopt its 21 December approach without sufficient awareness of the harm that may be done to legitimate patterns of sporting governance. The anxiety is most of all that the Court will adopt an inappropriately wide interpretation of the concept of a restriction of competition by object which will prevent governing bodies in sport from explaining the purpose behind their practices.

The potential harm caused by interpreting EU law ‘from a competition standpoint’ to prevent sport’s (claimed) special features even being assessed as part of the legal analysis is already visible in the Court’s ruling in Royal Antwerp (C-680/21) and the opinion of AG Szpunar in Case C-650/22 FIFA v BZ (‘Diarra’). The purpose of this comment is to urge the Court not to wreck its excellent track record in the development of EU sports law. I explain how, in its treatment of the sports cases pending before it, it can sustain its reputation as a Court which is respectful of the legitimate but conditional scope of sporting autonomy and the proper regulatory role of governing bodies. My recommended route is to treat most choices about governance in sport as restrictions of competition by effect, not object. The intent is not to immunise them from review but rather to ensure that review stretches beyond Article 101(3) and is fully sensitive to the economic and the sporting context in which governing bodies operate as regulators.

 

2 The Court’s case law: granting ‘conditional autonomy’ to the practices of governing bodies in sport.

 

From the beginning the Court was attentive to the need to take the special features of sport seriously in the application of EU law. In the 1974 ruling in Walrave and Koch (Case 36/74), the very first time that the Court decided a case involving sport, it concluded that the prohibition against discrimination based on nationality contained in the Treaty did not ‘affect the composition of sport teams, in particular national teams’. This saved football’s World Cup from being destroyed by EU law. The Court’s explanation why this was so was not convincing. It asserted that the nationality requirements which underpin international sport are ‘a question of purely sporting interest’ and have ‘nothing to do with economic activity’, which, given the commercial advantages associated with playing for a major national team, is simply false. But the key thematic point was the Court’s readiness to interpret basic principles of EU law with sensitivity to the unusual features of organised sport – here, international representative teams which do not exist in typical goods or services markets.

 

Two decades later, in Bosman (Case C-415/93), the Court was asked to consider whether football’s transfer system contravened the EU’s free movement rules in a case in which a player’s transfer from a Belgian to a French club had been obstructed. It found that the particular rules at stake could not be justified as a matter of EU law. This generated significant change within the game, most of all the elimination of restrictions on a player’s freedom to change employer once his or her contract has come to an end. But the transfer system lives on in slimmed down form because the Court chose in Bosman to accept that ‘the considerable social importance of sporting activities and in particular football’ dictated that ‘the aims of maintaining a balance between clubs by preserving a certain degree of equality and uncertainty as to results and of encouraging the recruitment and training of young players must be accepted as legitimate’. This is not found in the Treaties nor in any secondary legislation. It is the Court’s own view of what interests may count as legitimate justifications for practices such as the transfer system which obstruct cross-border movement. It amounts, as in Walrave and Koch, to a recognition that in sport there may be justifications for practices which seem to offend against core EU values and which would not be accepted outside sport.

 

Most of the Court’s more recent case law has concerned the application of EU competition law to sport. Meca-Medina and Majcen v Commission (Case C-519/04P) was the landmark case, and it shares the fundamental thematic concern of the earlier case law to interpret and apply EU internal market law, in casu competition law, with sensitivity to the particular features of professional sport. The Court explained that the compatibility of rules with EU competition law cannot be assessed in the abstract. In applying Article 101(1) TFEU, ‘account must first of all be taken of the overall context in which the decision of the association of undertakings was taken or produces its effects and, more specifically, of its objectives’; and it ‘has then to be considered whether the consequential effects restrictive of competition are inherent in the pursuit of those objectives ... and are proportionate to them’. This was not an innovation, nor was it an approach specific to sport. The Court borrowed this test from its earlier ruling in Wouters (Case C-309/99). In that case it had concluded that a rule of the Dutch Bar which prohibited the creation of multi-disciplinary partnerships involving barristers and accountants suppressed the emergence of new partnerships and therefore restricted competition, and yet, given the objective of securing the independence and loyalty to the client of members of the Bar and, more broadly, the contribution to the sound administration of justice, the rules were treated as lawful. The legal assessment of practices that have the effect of restricting competition also includes examination of their objectives. The Dutch Bar was a type of private regulator, and that is exactly what a governing body in sport is. So in Meca-Medina the Court, borrowing the Wouters formula, decided that anti-doping rules of which swimmers had fallen foul did not constitute a restriction of competition forbidden by what is now Article 101 TFEU, since they were justified by legitimate objectives connected to ensuring the proper conduct of competitive sport.

 

The consequence of the Court’s approach in Meca-Medina is not to grant absolute autonomy to governing bodies in sport. EU law grants governing bodies a conditional autonomy: they may apply practices which appear to contravene EU internal market law on condition they show that they are necessary to protect the integrity of the sport. In Meca-Medina they succeeded. Soon after in MOTOE (Case C-49/07) they failed. In MOTOE it was found that ELPA, the governing body charged with regulating motorcycling in Greece, had refused to grant consent to MOTOE’s request to stage competitions in circumstances where that choice had favourable consequences for the competitions which ELPA itself staged. The Court did not condemn the gatekeeping function performed by many governing bodies in sport, which one may readily identify as necessary to ensure a viable calendar and common standards. It did object to the particular way that it operated. The Court identified an absence of equality of opportunity or, otherwise put, a conflict of interest. ELPA’s gatekeeping right allowed it to ‘distort competition by favouring events which it organises or those in whose organisation it participates’ at the expense of a would-be competitor. This was a breach of EU competition law.

 

3 The Court’s case law summarised: the need for a case-by-case examination.

 

The Court’s approach entails a need for a case-by-case examination of the compatibility of sporting practices with the Treaty. Rightly so. Sporting practices come in many shapes. They range from those at which stern scepticism should be directed – especially where, as in MOTOE, the regulatory powers of a governing body are used to promote its own commercial interests – to those which are necessary to sustain the uniformity and integrity of the sport. The transfer system, the defence of international representative sport and anti-doping are not devoid of economic motivation (a clean sport is likely to be more attractive to sponsors and broadcasters and fans than one contaminated by doping) nor of economic effect (the suspended athletes suffer). But this is private regulation necessary for sport to thrive, which cannot be delivered by a public authority at national level (because this would lead to jurisdictional fragmentation to the detriment of a global game) nor by a public authority at international level (because no such thing exists). Sport needs rules – sport needs a governing body to provide them. Obviously one cannot create a bright line rule which distinguishes the pernicious from the virtuous, but sometimes (though not as often as they claim) governing bodies pursue choices for sincere reasons associated with the organisation of their sport. The Court’s model of conditional (not absolute) autonomy accommodates respect for the legitimate role of governing bodies. It puts sporting practices to the test mandated by EU internal market law.

 

4 Changing EU competition law: the Court’s three rulings of 21 December 2023.

 

Thomas Bach, President of the International Olympic Committee, once said that sport ‘should be governed differently than manufacturers of cars or a producer of low-fat milk’. He is right. It should. And, under the model of conditional autonomy, in the EU it is. But this is at risk.

 

On 21 December 2023 the Court decided three cases concerning sport. All were decisions of the Grand Chamber. They were Case C-333/21 European Superleague Company SL v FIFA, UEFA, Case C-680/21 UL, SA Royal Antwerp Football Club v URBSFA, UEFA, and Case C-124/21 P International Skating Union v Commission, hereafter ESL, Royal Antwerp and ISU.

 

The Court did not change the core of EU sports law on 21 December 2023. The question whether a practice which falls within the scope of EU law, most obviously EU internal market law, should be treated as necessary to meet the legitimate objectives of a governing body in sport will and should remain at the heart of the analysis. The model of conditional sporting autonomy prevails. But the Court has changed the detailed method of analysis. The change made by the Court concerns the nature and consequences of the distinction between a restriction of competition by object and a restriction of competition by effect. Where a restriction of competition is by object, it is no longer open to a governing body to rely on Wouters/ Meca-Medina to exclude its regulatory practices from the scope of Article 101(1). Instead it can rely only on Article 101(3). Only where the restriction of competition is by effect may a governing body rely on the wider legitimate interests recognised by the Court in Wouters and Meca-Medina. The risk, explained in what follows, is that the Court has limited the room available to governing bodies to show what they do and why they do it in order to sustain the integrity of their sport, and has, contrary to its past case law, subordinated legitimate interests associated with governance in sport to the assumptions of competition law.

 

5. Defining a restriction of competition by object or by effect.

 

The distinction between a restriction of competition by object and a restriction of competition by effect is made by Article 101 itself, which prohibits agreements and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market. Plainly either an anti-competitive object or an anti-competitive effect is enough to trigger the application of Article 101, but Article 101 does not provide any further elucidation of what these concepts mean or entail. That has been the task of the Court. The Court has decided that a restriction by object refers to practices which reveal a sufficient degree of harm to competition for the view to be taken that they fall within the scope of Article 101(1) without it being necessary to assess their effects. A restriction by object is assumed to be more pernicious than a restriction by effect.

 

Logically, then, one looks first to whether the practice has an anti-competitive object; only if it does not is it necessary to proceed to the more thorough examination of its effects. Here lies the appeal of treating restrictions by object as a distinct category condemned pursuant to Article 101(1). Scare resources are saved because the inquiry is abbreviated. In the case of a restriction by object there is no call for investigation of effects on competition. The risk is that this limited inquiry may cause practices which are virtuous in their overall effect to be inappropriately placed within the scope of Article 101(1). The Court has for many years mediated this tension by insisting that the category of restrictions by object is exceptional and shall be interpreted strictly. This is faithfully repeated in the three rulings of 21 December 2023 (ESL para 161, ISU para 101, Royal Antwerp para 88).

 

But what are restrictions by object? On 21 December 2023 the Court repeated the basic explanation familiar from existing case law that the category of a restriction by object is based on the notion that certain types of coordination between undertakings can be regarded by their very nature as being injurious to the proper functioning of normal competition (ESL para 162, ISU para 102, Royal Antwerp para 89). Then, in terms differing slightly among the judgments according to context, it referred to certain forms of collusive conduct which are particularly harmful to competition, such as horizontal cartels leading to price fixing, limitations on production capacity or allocation of customers, certain types of horizontal agreements other than cartels, such as those leading to competing undertakings being excluded from the market, certain types of decisions by associations of undertakings aimed at coordinating the conduct of their members, in particular in terms of prices, and agreements aimed at partitioning markets according to national borders, tending to restore the partitioning of national markets or making the interpenetration of national markets more difficult.

 

But this is not intended as an exhaustive list. The Court’s point is that it cannot be. It explained, citing its own previous case law, that in order to determine whether a practice reveals by its very nature a sufficient degree of harm that it may be treated as a restriction of competition by object, it is necessary to examine the content of the practice, the economic and legal context of which it forms a part, and its objectives (ESL 165, ISU 105, Royal Antwerp 92).

 

6. The consequence of treating a restriction of competition as by object or by effect.

 

In the most strikingly transformative aspect of the judgments of 21 December 2023 the Court made clear that only where a practice counts as a restriction of competition by effect may the Wouters/ MecaMedina line of case law be relied on. If a practice is a restriction of competition by object those justifications are unavailable, and only the narrower grounds of exemption contained in Article 101(3) can save the practice (ESL para 189, Royal Antwerp para 118).

 

This is new. For the private regulator such as a governing body in sport it is potentially radical. The point of Wouters and Meca-Medina was that if a practice, reviewed in the light of its objectives, escapes the reach of Article 101(1) according to the Court’s formula, there is no need to assess whether it is a restriction of competition by object or by effect. It is not a restriction of competition within the meaning of Article 101(1) at all. This is now changed. Conduct which, far from merely having the inherent effect of restricting competition, ‘reveals a degree of harm in relation to that competition that justifies a finding that it has as its very “object” the prevention, restriction or distortion of competition’ cannot benefit from the Wouters/ Meca-Medina formula (ESL, para 186, Royal Antwerp, para 115). The same is true of conduct which ‘by its very nature infringes Article 102 TFEU’.

 

So, in reviewing sporting practices, the first stage of the analysis is no longer whether the Meca Medina test is met, but rather whether conduct has as its object the restriction of competition or by its very nature infringes Article 102. Only if it does not does Meca-Medina apply as a route for a governing body to show its practices to be necessary to achieve legitimate objectives. If it does, only Article 101(3) may save the practice. Presumably also, if it does, it can be saved from condemnation under Article 102 only if it meets the test of objective justification, which the Court treats as resembling Article 101(3) (C-413/14P Intel v Commission).

 

So, for the private regulator such as the Dutch Bar in Wouters or governing bodies in sport the structure of the argument is now clear but changed. Reliance on defence of legitimate interests which are not capable of being fitted within Article 101(3) is possible only if the practices do not count as restrictions of competition by object within the meaning ascribed to that concept by the Court. So defining a restriction of competition by object really matters!

 

In January 2024 this was vigorously confirmed by the Court. In two cases involving private regulators it spelled out the consequences of the change it had made on 21 December 2023.

 

Lietuvos notarų rūmai and others (Case C‑128/21) concerned a private body – of notaries – which had agreed how to calculate fees (in Lithuania). Although the final determination belonged to the referring national court, the Court strongly suggests that what was at stake was the horizontal fixing of the prices of the services concerned, which is so likely to have adverse effects on the price, quantity or quality of products and services that it is to be treated as a restriction of competition ‘by object’ within the meaning of Article 101(1) TFEU. The vocabulary and analytical structure of 21 December 2023 is openly adopted and confirmed, although it is only Royal Antwerp which is cited (three times), but the vital point, made clear by the Court at paras 101 and 102 of Lietuvos notarų rūmai, and others, is that if the conduct is classified as a restriction by object, then regulatory objectives such as safeguarding the principles of equal treatment and proportionality and protecting notaries from unjustified civil liability by standardising notarial practice and filling a regulatory vacuum can form no part of the analysis under Article 101(1). A week later, on 25 January 2024, the ruling in Em akaunt BG ЕООD (Case C-438/22) took a similar approach to a decision of a professional association of lawyers fixing the minimum amount of fees (in Bulgaria). Again, the vocabulary and analytical structure of 21 December 2023 is adopted, although it is ESL which is cited (three times), and again the Court condemns the arrangement as horizontal price fixing and therefore a restriction of competition by object. The point: such restrictions may not in any event be justified by the pursuit of legitimate regulatory objectives. Article 101(3) is the only possible route to justify the scheme.

 

7. The problem with the Court’s approach: limiting the legitimate role of the private regulator.

 

Once a practice is regarded as a restriction of competition by object, the scope to justify it is limited, and no longer embraces the legitimate objectives recognised by the Wouters / Meca-Medina case law. For the private regulator things have changed. For those anxious to leave room for the conditional autonomy of the private regulator under EU law, things have changed for the worse.

 

This is a problem.

 

EU competition law now applies to the private regulator quite differently depending on whether the practices it pursues are treated as restrictions by object or restrictions by effect. But this structurally important distinction, which determines the scope to justify regulatory practices, rests on unstable foundations. The notion of a restriction of competition by object remains ambiguous, despite the attention paid by the Court to the matter on 21 December. Most of all, the Court has excluded the possibility of creating an exhaustive list of such practices, insisting instead that, as explained above, attention must be paid to the content of the practice, the economic and legal context of which it forms a part and its objectives (ESL 165, ISU 105, Royal Antwerp 92). Therefore there is an unpredictability at the heart of Article 101’s application to the private regulator: what really is the restriction of competition by object which disables reliance on the legitimate interests recognised in Wouters and Meca-Medina? This would be a manageable problem if the Court’s declaration that it is exceptional to find a practice to be an object restriction – which should encourage the private regulator – were reliable. But there are hints in the 21 December rulings that this may be less helpful in practice than it appears on paper. It is here that the pending case law is crucial. The risk is that the Court has adjusted Article 101 in a way that renders it insensitive to the legitimate role played by private regulators in circumstances where public regulation of the market is missing.

 

The issue is not limited to sport. It covers the type of body referred to at para 183 of ESL – an association ‘pursuing certain ethical or principled objectives’ and, more broadly, seeking to regulate ‘the exercise of a professional activity’. But the pending cases focus on sport, so let that be the focus here in explaining the risk the Court is running.

 

Royal Antwerp concerned UEFA’s home grown rules. These require that club squads contain a minimum number of home grown players – that is, players trained by their club or another club in the same association between defined ages at an early state of their career. The rules are motivated by two distinct but connected concerns. First, there is a perceived need to establish common rules on the matter across Europe, so the integrity of the sport and the transnational market for players is not harmed by divergent approaches in particular jurisdictions. Second, and driven by the content of the common rules rather than simply by the need for common rules, they are motivated by the anxiety that clubs are too quick to acquire players who are already fully trained and too slow to invest in youth training.

 

The purpose of UEFA’s home grown rules, then, is to establish uniform conditions within which the training and recruitment of young players is encouraged. They have an economic motivation – in short, to make the sport better – but there is no obvious conflict of interest here. UEFA has no direct economic stake in this market. It is a regulator. The effect of the rules is no doubt to dampen competition in the market to acquire players and to cause some degree of disruption to cross-border mobility. They clearly deserve to be reviewed in the light of EU internal market law, and they may not be compatible with it: Advocate General Szpunar shrewdly questioned their coherence as a means to encourage training given that a home grown player is not only one trained by the club but also one trained by and acquired from another club in the same association. But the vital question asks on what basis they shall be reviewed in the light of EU law. As restrictions on competition by effect there is room to explore the rules’ contribution to the broader development of the game, embracing its social and educational function. As restrictions of competition by object, not so, except in so far as Article 101(3) can capture those motivations.

 

The Court did not decide the point on 21 December 2023. It leaves the final conclusion to the national court. But its preference seems to be to treat the home grown rules as a restriction by object, not effect.

 

In Royal Antwerp the Court instructs the national court to examine the economic and legal context in which the rules were adopted ‘together with the specific characteristics of football’ (para 110), but it offers no elaboration of what this entails, and emphasises instead that the rules limit the recruitment of talented players, which has an impact on the competition in which the clubs may engage, not only in the ‘upstream or supply market’ (the recruitment of players), but also in the ‘downstream market’ (interclub football competitions). It adds that the rules may partition markets according to national borders or make the interpenetration of national markets more difficult by establishing a form of national preference.

 

The Court does not ignore the sporting context, but it downplays it. The national court could find the homegrown rules to be a restriction of competition by effect, and the instruction that the proportion of players concerned is ‘particularly relevant’ in determining the prejudicial effect of the rules (para 109) tends in that direction. However, the bulk of the Court’s ruling emphasises the impact on competition in the EU’s internal market. It seems written to nudge the national court in the direction of treating the rules as a restriction by object. The problem is that if one assesses the object of the system mainly from the perspective of its impact of competition in the labour market, and therefore as a restriction by object, one excludes the broader objectives of regulating the sport except in so far as they can be fitted within Article 101(3). This is inconsistent with the Court’s track record stretching from Walrave and Koch through Bosman to Meca-Medina. In those cases governance choices were assessed with full appreciation, if not unconditional endorsement, of the governing body’s regulatory motivations. This is now not possible if the system is classified as a restriction by object. The Court needs to avoid an inflated view of the concept of restriction by object, and it is explained below that the cases now pending before it allow it that chance.

 

One additional – and strong - reason to insist on a narrow understanding of the concept of a restriction of competition by object will appeal to those concerned with the coherence of EU internal market law beyond competition law alone. A restriction by object cannot be saved by reliance on Wouters/ Meca-Medina when reviewed under Article 101, but a restriction on inter-State trade in goods, workers or services can be saved by reliance on the general public interest test shaped by the Court in Cassis de Dijon and applied in Bosman. This supple test is the functional equivalent of the legitimate interest test developed in Wouters/ Meca-Medina. Competition law and free movement law have different jurisdictional triggers and do not run in alignment in all respects, but it would be highly unsatisfactory if they applied different tests to the basic question whether a practice which does fall within their scope is lawful or not. The way to avoid this is to take a narrow approach to the concept of a restriction of object for the purposes of Article 101, thereby ensuring that normally sporting governance which falls within the scope of both competition law and free movement law is assessed according to the same flexible test.

 

8 How did the Court get into this mess? The flawed lure of assessment ‘from a competition standpoint’.

 

How did the Court get into this mess? The Court got into this mess by following its own case law without adequate awareness of context.

 

In all the three judgments of 21 December 2023 the Court, setting out the framework for determining whether a restriction of competition is by object, observes that ‘a determination must be made of the objective aims which that conduct seeks to achieve from a competition standpoint’ (emphasis added); and adds that ‘the fact that the undertakings involved acted without having a subjective intention to prevent, restrict or distort competition and the fact that they pursued certain legitimate objectives are not decisive for the purposes of the application of Article 101(1) TFEU’, citing its own judgments in General Motors v Commission (C‑551/03 P) and Beef Industry Development Society and Barry Brothers (C‑209/07) (para 167 ESL, para 107 ISU, para 94 Royal Antwerp).

 

So a restriction of competition by object may be identified even where there is no subjective intent to restrict competition.

 

The problem with this is that it suppresses the assessment of the legitimate objectives pursued by a sports governing body in so far as its aims, viewed objectively ‘from a competition standpoint’, are anti-competitive. Neither General Motors nor Beef Industry had anything to do with sport, nor with private regulation more generally. The former concerned export restrictions on motor vehicles, the latter reduction of capacity in the supply of beef and veal. Both support the proposition that there is no escape from Article 101 even if it is established that the parties to an agreement acted without any subjective intention of restricting competition; and moreover that an agreement may be regarded as having a restrictive object even if it does not have the restriction of competition as its sole aim but also pursues other legitimate objectives. The point is to push assessment of any possible economic virtues to Article 101(3). That is tolerable for cases involving typical economic activity, but much less so for private bodies charged with a responsibility to regulate an activity which engages considerations which are broader than recognised by Article 101(3). Finding the private regulator to have restricted competition by object because that is how the object would be viewed ‘from a competition standpoint’ is to ignore the object viewed from a sporting standpoint. Moreover, and worse, it shuts out the object viewed from a sporting standpoint from the stage of assessing justification, except in so far sporting explanations for regulatory intervention can be fitted within the narrow exemption criteria foreseen by Article 101(3).

 

I do not argue that private regulators never restrict competition by object. Sometimes the conclusion that a private regulator is pursuing the object of restricting competition may be justified. It probably was in ESL and ISU. In both those cases the Court convincingly pointed to the absence of a framework providing for substantive criteria and detailed procedural rules suitable for ensuring that the regulatory decisions taken by the governing body were transparent, objective, precise, non-discriminatory and proportionate. Their object was the prevention of competition (by new providers). Similarly the two decisions of January 2024 are probably persuasively treated as instances of a private regulator pursuing restrictions of competition by object. Notaries fixing prices charged by notaries (Case C‑128/21 Lietuvos notarų rūmai, and others) and lawyers fixing prices charged by lawyers (Case C-438/22 Em akaunt BG ЕООD) fit comfortably within the notion of a restriction of competition by object. There is no obvious cause for anxiety that the alleged public interest in such practices is excluded from the analysis: this smells like a hard-core anti-competitive practice involving economic actors looking after their own interests.

 

But the treatment of home grown rules in Royal Antwerp reveals the dangers of this path. If the home grown rules are a restriction of competition by object, then feasibly sincere regulatory motivations are excluded from the legal assessment. This is a radical break with the Court’s long-standing practice.

 

In Bosman the Court held that ‘the considerable social importance of sporting activities and in particular football’ dictated that the aim ‘of encouraging the recruitment and training of young players must be accepted as legitimate’. The Grand Chamber repeated and confirmed this fifteen years later in C-325/08 Olympique Lyonnais SASP v Olivier Bernard, another case about the free movement of footballers. This, one would suppose, is directly relevant to the assessment of the homegrown rules. But this recognition of the worth of youth training is absent from the ruling in Royal Antwerp. The Court accepts that football is ‘of considerable social and cultural importance in the European Union’ (para 105, citing Bosman), but it does not elaborate on what this entails, and makes clear that it is only if the referring court reaches the conclusion that they do not have as their object the restriction of competition may pursuit of the uniformity of the conditions in which the teams participating in interclub football competitions governed by those associations are formed and encouraging the training of young professional football players form part of the legal assessment (para 117). Moreover, although the Court accepts that sporting competitions ‘may continue to refer …  to a national requirement or criterion’ (para 106), it does not elaborate on this point. Instead it prefers to emphasise EU law’s intolerance for agreements aimed at partitioning markets according to national borders, tending to restore the partitioning of national markets or making the interpenetration of national markets more difficult, strongly pushing the view that such are restrictions by object (paras 95, 96, 110). If this is so, an argument such as that the home grown rules promote the development of local players who can nourish the vibrancy of the national league and provide a pool on which the national team may draw can be advanced only if it fits within Article 101(3), which is possible but a stretch, whereas broader concerns about social and educational benefits and the cultural function of the national team in affirming identity reach beyond Article 101(3) and so are ruled out in principle.

 

I do not here argue that UEFA’s home grown rules should inevitably be treated as compatible with EU law. Perhaps the claimed encouragement to invest in youth training cannot be demonstrated. Perhaps, even if there is such encouragement, it is imperfect, and that less restrictive means exist to achieve the same objectives, in which case the rules will fail the test of proportionality. My point is only that these type of arguments do not even get the opportunity to be tested if the rules count as a restriction of competition by object. The Court has invited the national court to set aside the objects pursued by the governing body and instead to superimpose what a competition lawyer would regard as the object ‘which that conduct seeks to achieve from a competition standpoint’ (para 167 ESL, para 107 ISU, para 94 Royal Antwerp), thereby excluding the sporting context from review, except only in so far as it can be fitted into Article 101(3). The result will be that a private regulator is denied a proper contextual assessment of its practices. The result is the subordination of sport to the orthodox assumptions of EU internal market law – which is exactly what the Court has spent forty years avoiding.

 

9 The way out of this mess: expanding assessment beyond that ‘from a competition standpoint’.

 

The way out of this mess is to do what the Court says it wants to do – to interpret the concept of restrictions of competition by object strictly.

 

Sometimes a governing body is ‘just’ an undertaking, motivated by commercial gain. But sometimes it acts as the global regulator of the game, protecting the integrity of the sport and with no direct economic stake in the practices it pursues. In a case where there is a sincere regulatory object, where the governing body is not obviously suffering from a conflict of interest, one should normally treat practices as a restriction of competition by effect. That then allows their assessment to reach beyond that ‘from a competition standpoint’ and to recognise the breadth of objectives at stake, as in Wouters and Meca-Medina, and to test their aptitude to achieve those objectives.

 

So restrictions by object will be rare. That the concept of a restriction by object must be interpreted strictly is recognised in ESL paras 161-2, Royal Antwerp paras 88-89, ISU paras 101-2. That should be driven by the need to recognise the special character of the private regulator. The object of practices is commonly not to restrict competition but to regulate competition. Treating such practices as restrictions of competition by effect allows full assessment of regulatory choices. Royal Antwerp misses this.

 

I am not banging on a closed door. In both ESL and ISU the Court objected to the way the prior approval process was structured, but not to the possibility of maintaining a prior approval process in the first place. The Court accepted that it is potentially lawful to act to suppress a competition which is not based on access via sporting merit (ESL para 143-144, 175-176, 253; ISU para 132). So – provided always that the process meets the requirements of objectivity, transparency, non-discrimination on which the Court so firmly insists in its 21 December rulings – the Court appears to accept the compatibility with EU competition law of a refusal to approve a closed league (and the imposition of penalties on participants). It is a legitimate exercise of the gatekeeping function which governing bodies in sport, as private regulators, perform, which is not characteristic of most economic sectors. Sport is special!

 

The Court does not spell this out, but presumably the point is that such a practice is not conduct which has as its object the restriction of competition within the meaning of Article 101 TFEU nor conduct which by its very nature infringes Article 102 TFEU. Instead, the object of requiring that new competitions be open and based on sporting merit is not to restrict competition but rather ‘the pursuit of legitimate objectives, such as ensuring observance of the principles, values and rules of the game underpinning professional football’ (ESL para 176). Just as in Meca-Medina itself, the Court found an inherent effect of restricting potential competition between athletes as a result of anti-doping but placed the matter beyond the reach of Article 101(1) because the rules had legitimate objectives in upholding ‘the ethical values at the heart of sport, including merit’ (as explained, citing Meca-Medina and Majcen v Commission, C‑519/04 P, in ESL para 184, Royal Antwerp para 114, ISU para 112).

 

Certain types of sporting competition are, it seems, legitimately suppressed by UEFA. Its object is not to restrict competition. Its object is to defend a model based on sporting merit.

 

So sporting merit is a paradigm recognised and protected by the Court in the application of internal market law. In fact the judgments of 21 December 2023 show respect for the considerable social and educational importance of sporting activity (ESL, para 102, Royal Antwerp, para 70), for the specific characteristics of sporting activity (ESL para 103, Royal Antwerp, para 71) and proclaim that the sport of football is of considerable social and cultural importance in the European Union’ (ESL para 143, Royal Antwerp para 105). But these values come into play only provided the practice is treated as a restriction of competition by effect, not object. A governing body (or a private regulator more generally) should be allowed to argue that its rules pursue objects which are necessary to achieve legitimate objectives in the organisation of sport (or some other activity). That is achieved by normally treating governance arrangements not as restrictions of competition by object but rather restrictions of competition by effect.

 

This does not mean a carte blanche for sporting autonomy. Pernicious self-interested practices like those in both ESL and ISL will not survive scrutiny, just as those in MOTOE were condemned as violations of EU law. Nor will more plausibly legitimate choices pursued by a governing body, uncontaminated by a conflict of interest, be automatically approved. Wouters/ Meca-Medina is a grant of conditional, not absolute, autonomy to regulatory bodies. The purpose of rules of governance must be explained, their aptitude to achieve their ends demonstrated. The point is only that treating such practices as restrictions of competition by effect, not object, leaves room for assessment of their impact in their full context, both as sporting practices and potentially as anti-competitive practices. This is fully in line with the Court’s excellent track record in mediating the competing claims of the internal market and sporting specificity – the model of conditional autonomy it has so skilfully developed over time. And it is fully in line with the Court’s long-standing insistence that the category of restrictions by object shall be interpreted strictly.

 

10 The pending cases on the transfer system, the regulation of agents and club (re-)location: a chance to re-set the Court’s course.

 

The Court has the chance to step back from taking an inflated view of sporting practices as restrictions of competition by object. That will in turn release room for most governance choices to be assessed in their full context, not merely one informed by the economic assumptions of competition law. That will ensure consistency with the Court’s anxiety in its landmark cases – Walrave and Koch, Bosman, Meca-Medina – to apply EU internal market law with sensitivity to, but not uncritical endorsement of, the peculiar features of sport.

 

The transfer system

 

The transfer system was amended and curtailed after the Court’s ruling in Bosman. Its compatibility with EU law was once again brought before the Court in Case C-650/22 FIFA v BZ (‘Diarra’). We know now, after 21 December 2023, that the first question to ask is whether it is a restriction of competition by object or by effect. Only if it is the latter may the types of wide-ranging arguments assessed by the Court in Bosman form part of the assessment under Article 101; if it is the former, the assessment belongs exclusively to the narrower parameters set by Article 101(3). 

 

AG Szpunar delivered his Opinion in Case C-650/22 FIFA v BZ (‘Diarra’) on 30 April 2024. His Opinion is based on the 21 December rulings which, he notes, reveal ‘a considerable effort of synthesising and summarising prior case-law’ (para 30). His conclusion is swift and brutal. The transfer system limits the possibility for players to switch clubs and, conversely, for (new) clubs to hire players in a situation where a player has terminated a contract without just cause. He cannot see how this ‘cannot be equated with a restriction of competition by object’ (para 56). It is a restriction by object. This means that only Article 101(3) can save the practice, but its requirements are ‘clearly not met’ and he does not discuss them (para 58). 

 

As a result of this finding, reliance on the wider notion of legitimate objectives recognised in Wouters/ Meca-Medina is ruled out – as the AG makes explicit (para 59). The outcome, then, is that the claim that the transfer system's object is to protect contractual stability and team-building in order to maintain the integrity of sporting competition is excluded from the legal analysis, except in so far as it can be accommodated within Article 101(3); so too the claim that the system encourages the training of young players (accepted in Bosman and in Olympique Lyonnais SASP v Olivier Bernard) is excluded except in so far as it can be accommodated within Article 101(3); nor is there any room to advance the argument that global rules are needed in football in order to prevent divergent national labour laws distorting the (global) market for players except in so far as that argument can be accommodated within Article 101(3).

 

Treating the system as a restriction by object entails that the wider sporting context would be excluded from examination under both Articles 101(1) and 101(3). It is not that competition law prevails over arguments about sport’s (claimed) special features – it is that competition law prevents sport’s (claimed) special features even being assessed.

 

The way out of this is to treat the transfer system as having objects associated with the organisation of the sport but also anti-competitive effects. It is a restriction by effect. That then allows a fully contextual assessment in line with Wouters/ Meca-Medina. The transfer system may fail that test, but it will have had its hearing.

 

A further reason for preferring a narrower understanding of the concept of a restriction of competition by object than is suggested by AG Szpunar concerns the relationship between Article 101 and Article 45. A restriction by object cannot be saved by reliance on Wouters/ Meca-Medina when reviewed under Article 101, but a restriction on inter-State trade within the meaning of Article 45 can be by reliance on the general (‘Cassis de Dijon’) public interest test shaped over time by the Court which is functionally identical to Wouters/ Meca-Medina. It seems undesirable that arguments excluded from the application of Article 101 form part of the assessment under Article 45 – especially if those arguments, irrelevant under Article 101, are persuasive enough to lead to the conclusion there is no breach of Article 45. Strangely AG Szpunar identifies exactly this risk that ‘the contested provisions would be incompatible with Article 101 TFEU, but compatible with Article 45 TFEU’ (para 35) but proceeds to operate on a basis that could lead to this result.

 

He makes the – correct - assumption that the Wouters case law which he excludes from Article 101 provides a test ‘in essence … comparable to the justification test under Article 45 TFEU’.

In his analysis of Article 45 he is open to accepting that ‘the contested provisions seek to maintain contractual stability in the professional football sector and, more specifically, to ensure compliance with the obligations entered into by both players and clubs’ and citing Bosman he recalls that ‘the Court has expressly recognised the aim of maintaining a balance between clubs by preserving a certain degree of equality and uncertainty as to results’ (paras 61-62). Moreover: ‘The contested provisions generally seem likely to promote contractual stability and thus to contribute both to the stability of the composition of teams in sporting competitions and to the objective of a certain balance between clubs in sporting competitions by preserving a degree of equality of opportunity’ (para 64). Although unpersuaded that the detailed operation of the transfer system meets the test of necessity (paras 68-69) he recognises in principle the system’s suitability to achieve such sporting objects.

 

Something has gone badly wrong here. The Advocate General does not see how the transfer system’s operation ‘cannot be equated with a restriction of competition by object’ for the purposes of Article 101, whereas for the purposes of Article 45 he openly accepts that the transfer system has sporting objects. The result: justifications for the system which are excluded from the Article 101 analysis form an integral part of the Article 45 analysis, and may lead to a different conclusion on the system’s compatibility with EU law. What has gone badly wrong is the interpretation of the concept of a restriction of competition by object. It should be interpreted strictly. Here that means that the transfer system should be understood as having the object of establishing uniform rules apt to protect contractual stability and team-building and encouraging youth training, in order to maintain the integrity of sporting competition. It has potentially anti-competitive effects on the labour market. As a restriction by effect it may be assessed in the light of Wouters/ Meca-Medina. That has two happy outcomes – first, that the transfer system is assessed in its full context, embracing both the structure of the sport and the effect on the market, and second that Articles 101 and 45, both pillars of internal market law, run along the same lines.

 

I do not argue that the transfer system should be treated as compatible with EU law. Quite possibly it does not do what FIFA claims it does, quite possibly it is disproportionate, and quite possibly it fails the Wouters/ Meca-Medina test. Quite possibly one would wish to be harsher: the transfer system is not found in most labour markets, and there is a plausible argument that it is an ugly relic of a bygone age when footballers were traded as chattels rather than treated as employees. But that inquiry is not my concern here – my concern is only that EU law should allow space for that inquiry to be conducted. The transfer system needs to be assessed in its full context, which cannot be achieved by treating it as a restriction of competition by object apt to be saved only by conformity with Article 101(3). It is a restriction of competition by effect. Only in this way will consistency with the Court’s long-standing model of the conditional autonomy of sport under EU law be sustained.

 

The regulation of agents

 

A structurally similar question is raised by the FIFA Football Agent Regulations (FFAR). These FIFA rules introduce certain standards of conduct and include regulation of prices charged by agents. Object? Or effect? In 2023 in PROFAA v FIFA the CAS used the Meca-Medina analysis, and found the rules compatible with EU law (CAS/2023/O/9370). The Court has been asked to consider the matter (C-209/23 RRC Sports, C-428/23 ROGON). The analysis will now be differently structured. The CAS was able to apply the Meca-Medina test without the need to decide whether the restrictions on competition were by object or by effect. Now we know that Meca-Medina is applicable only once it is decided that there is no restriction by object. If one understands the FFAR as a cartel arranged between FIFA, national associations and clubs, and so as a horizontal restriction of competition, then it is probably a restriction of competition by object, and can be saved only by reliance on Article 101(3). By contrast FIFA portrays the FFAR as regulations designed to improve the functioning of the market for supply of agents’ services. They regulate the terms on which agents’ services are offered in order to address market failures such as intransparency and asymmetry of economic power; they seek to protect the integrity of the sport, most of all by attempting to protect contractual stability and team-building from agents’ aggressive pursuit of transfers. So FIFA argues that the ‘object’ of the FFAR is the regulation of the sport, not the restriction of competition in the market for supply of agents’ services. That then opens the door to Wouters/ Meca-Medina, rather than the narrower criteria of Article 101(3). FIFA, after all, has no direct economic stake in this market. It is a regulator. Its object is to address problems in the market for supply of agents’ services which have a direct and substantial impact on the integrity of the sport. Moreover, only FIFA can deliver common solutions – no public authority exists which can set globally applicable rules.

 

To repeat, treating the FFAR as a restriction of competition by effect, not by object, does not mean that they will survive scrutiny. FIFA has to show the FFAR are necessary to preserve the integrity of the sport, and that they meet the proportionality test. One would, for example, want to examine whether a price cap is proportionate; one might also ask whether the cap might have the perverse result of encouraging, not deterring, speculative but lucrative transfer activity. The point is that treating such methods of governance as restrictions of competition by effect, not object, is the only way to keep assessment of their full range of objectives in play. The point is to retain fidelity with the Court’s case law on sport from Walrave and Koch, through Bosman to Meca-Medina by not making a determination ‘of the objective aims which that conduct seeks to achieve from a competition standpoint’ (para 167 ESL, para 107 ISU, para 94 Royal Antwerp) but rather ensuring also assessment from a sporting standpoint.

 

So the regulation of agents is best treated as a restriction of competition by effect.

 

Club (re-)location

 

Does EU law help a club wanting to stage matches outside the territory of the national association to which it belongs? Does EU law help a club that wants to apply to join a league in a different country? Does EU help clubs wanting to set up a new transnational league? If UEFA objects, how does EU law mediate the tension between the assumptions of cross-border trading freedoms which animate EU internal market law and the territorial limits which characterise the pattern of national Leagues in Europe?

 

Swift Hesperange, a Luxembourg football club, claims (inter alia) that UEFA rules which require it to play in the Luxembourg league violate EU law. The case is proceeding before the local courts and a preliminary reference has not been made, although the applicant club is eager that one should be made. The territorial restriction imposed by the UEFA rules makes the relevance of EU free movement and competition law obvious; it is equally obvious that the assumption that leagues shall be national rather than transnational has deep sporting roots.

 

Royal Antwerp seems helpful to the club seeking to break open the existing pattern. The ultimate decision on the nature of the home grown rules belongs with the referring national court, but in Royal Antwerp the Court’s strong preference is to treat market partitioning as a restriction of competition by object. That would mean UEFA’s preservation of national leagues falls within the scope of Article 101(1) and could be saved only by reference to economic arguments about consumer preference for such a structure which can fit within Article 101(3). Wider sporting, social and cultural reasons explaining the existing model would form no part of the legal assessment under Article 101(1), nor would they seem to have any place under Article 101(3). Disabling UEFA’s access to Wouters/ Meca-Medina in this way opens many doors to clubs wishing to provoke change. The problem is that the particular sporting context would be ignored by EU law except in so far as it can be accommodated within Article 101(3) – in defiance of the Court’s long standing case law. Yet again, the way through this muddle is to treat such rules as restrictions of competition by effect, and to leave room to assess them in line with the Wouters/ Meca-Medina model. That too ensures consistency in the application of competition law and free movement law to questions of justification. To emphasise once again: this is not to grant UEFA autonomy to retain the sporting status quo, it is to grant it a conditional autonomy. It needs to show just why it is necessary for football competitions to be limited in this way, to the detriment of ambitious clubs wanting to play in more lucrative leagues and/ or to create new and more attractive transnational leagues.

 

In summary, the way forward

 

I do not here take a stance on the compatibility with EU law of the transfer system, the regulation of agents and rules on club (re-)location. My sense is that the transfer system unjustifiably deprives players of the right to sell their labour in the way that employees in almost all other sectors of the economy may do and that it should be abolished, my sense is that the regulation of agents and the promotion of home grown players both serve legitimate purposes but that on their current models they may be the subject of objection at the level of detail. But I want my sense to be tested rigorously, according to a legal formula which is wider than Article 101(3) and which accommodates assessment of both the sporting objects and the economic effects of the arrangements pursued by the governing body as a regulator. Before 21 December 2023 that could be achieved by reviewing such practices according to the Wouters/ Meca-Medina formula; after 21 December 2023 it can be achieved only by treating such practices as restrictions of competition by effect, and then deploying the Wouters/ Meca-Medina formula.

 

 

11 Conclusion: the Court should normally treat governance choices made by governing bodies in sport as restrictions of competition by effect, not object.

 

Governance in sport is unusual. The existence of governing bodies reflects the need for common rules which define how a sport is organised and which apply everywhere it is played, and it follows that, in order to secure uniformity of application, governing bodies are normally monopoly regulators. However much one may lament notorious instances of poor governance, which are frequently the product of a conflict of interest between regulatory and commercial roles, in principle sport needs governing bodies. No public body exists which is capable of delivering globally applicable common standards which determine not only the rules of the game, but also the environment within which the game is played, which embraces matters as varied as controls on spending, redistribution and solidarity, youth training and education, the transfer system, sale of media rights, the regulation of agents, the promotion of equality, non-discrimination, and human rights, and attention to the environmental impact of sport. These ‘principles, values and rules of the game’ (ESL para 176) belong on the mandate of the modern governing body in sport. This is not a feature of most economic sectors.

 

In reviewing governance practices in sport the Court has spent fifty years skilfully navigating a path between too much and too little respect for sporting autonomy. Too much respect would release governing bodies from the need to comply with core demands of EU law; too little respect would subordinate the legitimate and distinctive interests of governance in sport to EU law applied clumsily as ‘one size fits all’. So, from Walrave and Koch via Bosman to Meca-Medina, the Court has developed a test according to which governing bodies are permitted space to try to persuade the Court how and why their practices should be treated as necessary to protect the legitimate interests of sport and so remain unaffected by EU law. Autonomy is granted to sporting governance on condition that it is demonstrated to be necessary.

 

This is a model that deserves to be preserved. But the Court is on the brink of imperilling it. On 21 December 2023 it changed the law to remove the nuanced model of justification developed in Wouters and Meca-Medina from practices which count as restrictions of competition by object. I think this was a mistake. The distinction between restriction by object and restriction by effect is not a bright line, and so I think the change the Court has made creates an unnecessary complication at the heart of EU competition law. But the rulings of 21 December 2023 were, as AG Szpunar in Case C-650/22 FIFA v BZ (‘Diarra’) explained, ‘arrêts de principe concerning rules adopted by private entities’, so I suppose the Court will not change its mind. But look to the danger of suppressing a claim to sporting specificity beneath the aggressive assumptions of competition law. Imagine the Court were to treat UEFA rules protecting the organisation of leagues on a national basis as restrictions of competition by object and to refuse to consider even in principle the argument that this is a fundamental definitional building-block in European sport. Such an approach is not consistent with the Court’s practice, and would harm its legitimacy. So, looking forward, the best way to address the new law of private regulators in the EU is to interpret the category of restrictions of competition by object as confined to egregious instances of self-interest pursued by governing bodies. It should not be interpreted to catch more orthodox forms of sporting governance which are motivated by more than profit-making.

 

Treating governance choices made by governing bodies in sport as normally constituting restrictions of competition by effect, not object, is in perfect conformity with the Court’s insistence that the concept of a restriction of competition by object shall be interpreted strictly. The shape of this approach can be detected in ESL: the Court accepted that the object of requiring that new competitions be open and based on sporting merit is not to restrict competition but rather ‘the pursuit of legitimate objectives, such as ensuring observance of the principles, values and rules of the game underpinning professional football’ (ESL para 176). This model should be applied to the cases pending before the Court. The transfer system has as its object the preservation of contractual stability and the encouraging of youth training. The effect – but not the object - is to restrict competition. The regulation of agents has as its object the preservation of contractual stability and addressing informational asymmetry and unequal bargaining power in the market. The effect – but not the object - is to restrict competition. The organisation of sporting competitions along national lines has as its object the preservation of one of the existential features of European sport culture, the identification of the national champion. The effect – but not the object - is to restrict competition. It is only where a governing body’s ambition is to restrict competition to further its own interests that a finding of a restriction by object makes sense – as in MOTOE and as in the particular circumstances which generated the litigation in ISU and ESL, where the complete absence of due process in the prior approval schemes generated a reek of suspicion that practice favoured the governing body’s commercial interests as event organisers.

 

I do not want to argue that governing bodies be granted an absolute autonomy from the application of EU law when they make their choices about how to organise their sport. I want them to be granted a conditional autonomy: an autonomy which is conditional on showing convincing reasons why they have chosen the prevailing model. The model carefully crafted by the Court in Wouters and Meca-Medina does not and should not release the private regulator from the obligation to demonstrate the reasons behind the regulatory practices under challenge, and moreover they must show they truly achieve what they claim to want to achieve. The transfer system, the regulation of agents and other practices need to be justified, not rubber-stamped – and they may prove not to be justified. In MOTOE and in ISU and ESL the Court has shown itself able to identify and condemn and – one would hope - improve poor governance. The key point is that the application of the Wouters/ Meca-Medina test permits all relevant arguments rooted in the special character of sport to be (critically) examined, and the legitimately broad regulatory role of the modern governing body to be recognised. This helps to avoid subordinating sport too much to the economic assumptions of competition law. It also has the (potentially) positive effect of pushing UEFA (and other governing bodies) to identify with more care exactly what the purpose of their sport is, and how it should be organised, how all affected actors are represented  – and also to show they genuinely and sincerely perform that role.

 

I believe that sport would be improved by an EU political initiative aimed at establishing a systematic set of standards on good governance. EU legislation could require improved patterns of representation, accountability, transparency, equality and diversity; it could impose term limits on officers, demand ethical standards under a ‘fit and proper’ test, and require separation of regulatory and commercial functions. This would not replace governing bodies in sport. It would improve the performance of governing bodies in sport, thereby enhancing their legitimacy as regulators. And in practice its influence would not be limited to the EU (the ‘Brussels effect’). But political momentum is currently missing. Therefore for the present we must reckon with the Court as the most prominent EU institution charged with the task of mediating the tension between EU internal market law and the special features of governance in sport. This is achieved by viewing such practices both ‘from a competition standpoint’ and from a sporting standpoint. And so, after 21 December 2023, the way to sustain the Court’s reputation as an institution sensitive to, but not uncritically supportive of, the claimed special features of sport, nurtured in Walrave and Koch through Bosman to Meca-Medina, is to treat most governance practices in sport as a restriction of competition by effect, not by object.