Abstract
In the Meca Medina and Piau cases, the European Court of First Instance had to deal for the first time with the application of EC Treaty provisions to sports bodies’ rules. The first of these two cases concerned anti-doping rules adopted by the IOC and the second one concerned FIFA regulations on players’ agents. According to case-law of the European Court of Justice, rules ‘of purely sporting interest’ do not fall within the scope of the EC Treaty. However, an overview of the relevant judgments shows that the test adopted since Walrave to assess the ‘purely sporting’ nature of such rules is not fully clear and has not always been applied in a consistent way, in particular after Bosman. The Meca Medina case, in which the European Court of First Instance has applied the test in a slightly different manner, opens the door to substantial simplification of future case-law. On the other hand, the European Court of First Instance has also taken the view that the test, which had only been applied up to now by the European Court of Justice to EC Treaty rules on free movement of workers and free provision of services, extends also to the rules on competition. Piau, delivered by the European Court of First Instance some months later, has confirmed the confusion that may derive from traditional case-law and has shown the risks that may derive from the adoption of divergent decisions within the European judicial system.
Highlights
In paragraph 4 of the Walrave ruling, the ECJ made clear that ‘the practice of sport is subject to Community law only in so far as it constitutes an economic activity within the meaning of Article 2 of the Treaty’
In Bosman, for example, the ECJ had to reject arguments based, inter alia, on the freedom of association and on the subsidiarity principle, and held that Article 39 EC applies to rules dealing with ‘the term of which professional sportsmen can engage in gainful employment’ (Bosman, paragraph 87)
The ECJ left to the national court the question whether participation in international tournaments is an economic activity within the meaning of Article 2 EC
Summary
The ECJ, in order to consider whether sporting activities fall within the scope of the EC Treaty, has always 3 had recourse to the same basic principles since the two founding rulings delivered in the mid 1970’s, Walrave v Association Union Cycliste Internationale (Case 36/74 [1974] ECR 1405) and Gaetano Donà v Mario Mantero. (Case 13/76 [1976] ECR 1333). If in Walrave the discrimination at stake fell plainly and clearly outside the scope of the EC Treaty, the ECJ seemed to suggest in Donà that the noneconomic nature of a sporting rule could be invoked as a justification for a measure otherwise caught by Articles 39 and/or 49 EC (it is important to note that the ECJ refrained from examining the nature of the rules laid down by the Italian association and left the question for the national court) This confusion led in Bosman to an alleged shift from the ‘orthodox’ test laid down in Walrave THE INTERACTION BETWEEN RULES OF PURELY SPORTING INTEREST AND EC TREATY RULES: AN
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