Islj 2009 3-4 - TMC Asser Instituut

and 15) that the provisions of Community law concerning freedom
of movement of persons and of provision of services do not preclude
rules or practices justified on non-economic grounds which
relate to the particular nature and context of certain matches. It
stressed, however, that such a restriction on the scope of the provisions
in question must remain limited to its proper objective. It
cannot, therefore, be relied upon to exclude the whole of a sporting
activity from the scope of the Treaty.”
In the Bosman ruling therefore the ECJ did not reject the previous
decisions but limited their scope significantly by further defining their
context. Rather than examining whether the practice was an issue of
genuine sporting interest, the ECJ advanced to the next question,
namely whether the contested practice involved any economic activity.
As for the criterion, whether the contested practice is an issue of
sporting interest - which automatically means according to this ruling
that there is no economic activity, there appeared to be no longer an
issue since it the Court had already ruled that the practice in question
was in fact an economic activity.
A reasonable interpretation of the decision may be then, that the
rule set by the Bosman decision is that if a practice is an economic
activity, it cannot be excluded. In such a case the ECJ did not need to
refer to the Dona decision since, according to that decision, only if a
practice is not an economic activity it may be then considered as of
sporting interest and therefore be excluded. Why then did it choose
to refer to the Dona decision and not to ignore it?
The ECJ’s non-reference in the Bosman ruling of the rule set in the
Walrave Case and on the other hand the reference in paragraph 76, to
the rule set in the Dona Case, in conjunction with its obvious attempt
to find a way through the Dona rule cannot mean anything other
than the fact that the Bosman ruling was intended to amend the
Dona rule in the sense that practices of sporting interest are not
excluded for the reason that they lack economic characteristics by definition
as was mentioned in the Dona case, but they are excluded
because they are of sporting interest and may be excluded even if they
contain an economic interest but do not exceed the (sporting) purpose
for which they were intended.
This interpretation may not be the most obvious. Indeed for many
years it was considered more reasonable to interpret the Bosman ruling
as meaning that sporting activities of an economic nature are
never excluded. But if we are to examine the whole of the ECJ’s case
law on the sporting exemption, this is surely the only interpretation
which goes hand in hand and even prepares the ground for the ECJ’s
case law which it was about to follow.
3. From the Restriction of the “Sporting Interest” to the Principle of
Proportionality (Decisions Deliège, Lehtonen)
It could be said that the Court in the cases Deliège and Lehtonen
elaborated further on the notion of sporting interest. The ECJ decided
on two cases where, whether they involve economic activity or not,
they were considered as part of the sporting exemption. First, in the
Deliège case the sporting rules that derive from a need inherent in the
organisation of high-level international athletic competitions are
excluded, not because they do not have economic interest but because
they do not constitute in their selves a restriction on the freedom of
the provision of services. Secondly, in the Lehtonen case too, the
15 A. Rincon, “EC Competition and
Internal Market Law: On the Existence
of a Sporting Exemption and its
Withdrawal”, Journal of Contemporary
European Research, (2007), Vol. 3, Issue
3,.224-237.
16 T.C. Hartley, “The Foundations of
European Community Law”, sixth edition
(Oxford University Press, 2007),
pp. 152.
17 N. Emiliou, “The Principle of
Proportionality in European Law: A
Comparative Study”, (Kluwer Law
International, 1996).
18 T.C. Hartley, “The Foundations of
European Community Law”, sixth edition
(Oxford University Press, 2007),
pp. 152.
19 Case C-250/92, Gøttrup-Klim e.a.
Grovvareforeninger v. Dansk Landbrugs
Grovvareselskab AmbA. 1994 ECR I-
05641.
20 Case C-309/99, J. C. J. Wouters, J. W.
Savelbergh, Price Waterhouse
Belastingadviseurs BV v. Algemene Raad
van de Nederlandse Orde van
Advocaten, 2002 ECR I-01577.
court does not refer to the criterion of economic activity and it considers,
that a prima facie violating Internal Market sporting provision,
in case its adoption is justified by objective reasons concerning only
sport as such, will not go against the rules of the Internal Market.
These decisions established a sporting exemption from the rules of the
Internal Market.
If one were to examine the decisions of the ECJ mentioned so far,
one would realise that practices of sporting interest are not automatically
excluded but instead are constantly subject to increasing conditions
being placed on them in order to restrict their exemption. The
ECJ is clearly possessed by the fear that it expressed in paragraph 76
of the Bosman decision, the fear that the argument of sporting interest
will be used as a pretext for the exclusion of the sporting activity
as a whole from European Law, even when an important part of it
constitutes economic activity.
Following on from these decisions in any case a practice of sporting
interest, aside from whether it has an economic character or not,
can be excluded, when it does not exceed the purpose for which it was
established (Dona), when it does not constitute in itself a restriction
on the freedom of provision of services (Deliège) and when its adoption
is justified by objective reasons concerning only sport as such
(Lehtonen).
It is obvious that the ECJ could not continue infinitely devising
different notions in every decision in order to close the flood gates
and limit the cases falling under the scope of sporting interest.
Inevitably it would have to take the only way around this problem by
adopting the principle of proportionality as the sole solution in order
to prevent the exceptions overriding the rule. 15
4. The Principle of Proportionality as a Criterion for the Exemption
(Decisions DLG, Wouters and Piau)
The principle of proportionality has derived from Gerrman Law and
is a very common principle in European Countries, some of which
include it in their Constitutions’ provisions in order to limit restrictions
of fundamental human rights from public authorities. Although
it was first invoked by the ECJ in its case law it has now been embodied
in the Treaties of the EU. 16
It has been recognized by the ECJ as a general principle of
Community Law. This principle imposes on the Community
Institutions as well as on member states a restriction on the exercise
of competences under Community Law. According to this principle,
each measure that is adopted should be in proportion (reasonable
relation) with the sought result. The measure cannot exceed the necessary
limits for the achievement of its objectives. In other words,
there should exist an equivalence, a proportionality between the
extent of action and its sought objective 17 . The most striking point
about this principle is that it leaves a great deal to the judgment of the
Court. 18
The idea for the establishment of the sporting exemption came
from the cases DLG 19 and Wouters 20 , neither of which are sports
related cases. In fact the first from these cases concerned a litigation
procedure between co-operative unions of Denmark for a provision of
their statute and the second concerned a provision of a lawyer’s association
statute in Holland in both which cases these provisions were
allegedly contrary to competition law. Nevertheless these cases are
worth mentioning since in the post-Bosman era they are possibly the
most important decisions for sport as all the post-Bosman decisions
of the ECJ relating to the sporting exemption were based on them.
These non-sporting cases were invoked in sports related cases in
order to establish the principle of proportionality as a criterion for
how much a sports provision abides to European Law. Thus in the
DLG decision, the ECJ states that a provision will not be considered
contrary to European Law, provided that it is restricted to what is necessary
to ensure that the cooperative functions properly. In the
Wouters decision, again the ECJ remained consistent with its decision
in the DLG case, ruling that despite effects restrictive of competition,
that are inherent in it, if a provision is necessary for the proper practice
of the legal profession, as organised in the Member State concerned,
it will not be considered as infringing Competition Law.
A RT I C L E S
2009/3-4 9