EC Competition and Internal Market Law: On the Existence of a Sporting Exemption and its Withdrawal

Abstract

Some authors argue that there is no such a thing as a sporting exemption under EC law. However, an in-depth analysis of the case law reveals that thirty years ago the European Court of Justice (“ECJ”, or “Court”) created an exemption specifically relating to sport. The judgment of the ECJ in Walrave established the basis for this exemption, which was confirmed and extended in Donà. Since then the exemption has been subject to the vicissitudes of legal interpretation. First of all, the Court endeavoured to contain its use, although the consequence of this was the expansion of the exemption from internal market to competition rules. This led to uncertainty and inaccuracy in the assessment of sporting practices. The ECJ reacted to the atmosphere of confusion created by the interpretation of the Walrave case and withdrew the exemption in Meca Medina. The correct test for assessing whether a sporting practice is contrary to EC law is now the proportionality test; however, further clarification is required.