Competition – Anti-doping legislation

On 30 September 2004, the Court of the First Instance (the “CFI”) issued a judgment, in which it qualified the character of sport activities and related legislation.

The action was brought before the CFI by two athletes, who were suspended for four years by the decision of the Fédération internationale de natation (International Swimming Federation, the “FINA”), subsequently confirmed by the Court of Arbitration for Sport, as a result of a positive testing for Nandrolone. These two athletes complained to the Commission (under Article 3 of Council Regulation No. 17 of 6 February 1962 implementing Articles [81] and [82] of the Treaty) challenging the compatibility of certain regulations adopted by the International Olympic Committee (the “IOC”) and implemented by the FINA, and certain practices relating to doping control with Community rules on competition and free movement of services. They alleged that fixing the limit of presence of Nandrolone in athletes’ bodies at the level specified in the anti-doping rules of the IOC was a concerted practice between the IOC and 27 laboratories accredited by it, as the limit was scientifically unfounded. Following the rejection of their complaint by the Commission, the athletes introduced an action before the CFI in Luxembourg. The CFI dismissed the action of athletes and ordered the applicants to pay the costs.

In its judgment the CFI states, in compliance with the case-law of the Court of Justice, that sport is subject to Community law only in so far as it is an economic activity within the meaning of Article 2 EC. Legislation relating to sporting activity as such (purely sporting legislation) falls outside the scope of Community competition law, as well as of Community provisions on the freedom to provide services.

On the one hand, a sporting activity can take the form of paid employment or provision of remunerated services, and thus present an economic aspect. In such a case, it falls within the scope of the provisions of the Treaty, in particular of Articles 39 EC and 49 EC (concerning free movement of workers and freedom of services). For instance the rules providing for the payment of fees for the transfer of professional players between clubs, or limiting the number of professional players who are nationals of other Member States which those clubs may field in matches, or fixing different transfer deadlines for players coming from other Member States without objective reasons, fall within the scope of those provisions of the Treaty and are subject to the prohibitions which they enact.

On the other hand, rules concerning questions of purely sporting interest, relating to the particular nature and context of sporting events, such as rules on composition of national teams, or rules relating to the selection by sports federations of those of their members who may participate on high level international competitions, by their nature fall outside the scope of Articles 39 EC and 49 EC. The fact that purely sporting legislation may have nothing to do with economic activity, with the result, according to the Court of Justice, that it does not fall within the scope of Articles 39 EC and 49 EC, means also, that it has nothing to do with the economic relationships of competition, with the result that it also does not fall within the scope of Articles 81 EC and 82 EC.

As concerns the anti-doping legislation, it does not pursue any economic objective. It is aimed to preserve the spirit of fair play, as well as to safeguard the health of athletes since the doping products have negative physiological effects. Therefore, the anti-doping rules are linked to a sport as such, the anti-doping legislation is of pure sportive nature and thus cannot be subject to competition law.