The ruling of the CFI
The CFI began its analysis with faithful adherence to the line of case law reaching back to Walrave and Koch. Sport, it repeated, is subject to EU law only in so far as it constitutes an economic activity. But from that starting point, which indeed reflects the EU’s very constitutional foundation, it then ran off in quite the wrong direction. It insisted that anti-doping rules concern exclusively non-economic aspects of sport, designed to preserve ‘noble competition’33 and that therefore they lie outwith the scope of the Treaty. Such an approach is plainly immensely favourable to sports federations’ conventional appeals for sporting autonomy. It upholds a plea to absolute autonomy from the application of EU law.
The gist of the CFI’s judgment is well captured by the summary that ‘Purely sporting rules—like anti-doping rules—fall outside Article ... [101(1)] because they do not relate to an economic activity’^4 And that is exactly why the judgment is flawed. This is intellectually unsupportable.
Anti-doping rules do relate to an economic activity—lhat of the athlete and that of the organizer of the competition. They are perfect examples of rules that are sporting in nature, but not purely sporting: they also have economic effects.
Put another way, the CFI’s ruling is driven by the entirely correct perception that the EU’s competence is limited by its founding Treaties: this is what we know today as the principle of conferral located in Article 5(1) TEU, which was examined in Chapter 3. Sport was not an explicit EU competence at the time of Meca-Medina, and it did not become one until the arrival in the Treaty, with effect from 2009, of
34 E Loozen, ‘Professional Ethics and Restraints of Competition’ (2006) 31 EL Rev 28, 46.
Article 165 TFEU. So the CFI referred to ‘purely sporting rules, that is to say rules concerning questions of purely sporting interest and, as such, having nothing to do with economic activity’ and juxtaposed this to a description of regulations which relate to the particular nature and context of sporting events which ‘are inherent in the organisation and proper conduct of sporting competition and cannot be regarded as constituting a restriction on the Community rules on the freedom of movement of workers and the freedom to provide services’.35 Such observations are sensitive to the constitutional limits of EU competence. This, however, is to conflate two different points. Plausibly there exists a (small) category of ‘purely sporting’ rules which are truly unassociated with economic activity, but regulations inherent in the organization and proper conduct of sporting competition form a much larger category in which economic effect is commonly present. Similarly the CFI observes that ‘the campaign against doping does not pursue any economic objective’^6 That is probably not true, and in fact the CFI itself recognizes the economic value of a ‘clean’ sport to its organizersTh but even if it is true, this is not of itself a reason for locating the campaign outside the EU Treaty scheme. EU internal market law is driven by assessment of a practice’s effect, not merely its objective. It is the broad reach of the internal market that provides the constitutional basis for the EU’s claim to assert competence in matters of sport. This is the true context within which to understand the operation of the principle of conferral found in Article 5(1) TEU. Anti-doping rules certainly have economic effects on those found to have contravened them. The CFI’s attempts to present such rules as ‘sporting’ and not ‘economic’ are as unhelpful as they are unconvincing. They are both.