CJ, 21-12-2023, nr. C-124/21 P

By the first part of its first ground of appeal, the ISU complains that the General Court rejected as unfounded or ineffective or failed to examine certain arguments and items of evidence that it had submitted at first instance in the context of its second plea in law, alleging infringement of Article 101(1) TFEU, with a view to challenging the assessments relied on by the Commission in concluding that there was a restriction of competition by ‘object’.

In that regard, it submits, first of all, that, in the decision at issue, the Commission, in practice, assessed the adoption and enforcement of the prior authorisation and eligibility rules, then classified those two elements as a restriction of competition by ‘object’, as the General Court moreover recognised in paragraphs 57 and 126 of the judgment under appeal.

Next, the ISU maintains that it invited the General Court, by its second plea in law, to reject that legal categorisation and to condemn the manifest errors of assessment that led the Commission to that conclusion. In particular, the ISU submits that it challenged, at first instance, the various findings of the Commission contained in recitals 174 to 179 of the decision at issue relating to the application of the prior authorisation and eligibility rules, as illustrated, as regards speed skating, by its allegedly intentional and anticompetitive refusal to authorise the sole planned international event by a competitor which was submitted to it in the preceding 20 years, in its initial version, and, as regards figure skating, by the parallel authorisation of 20 or so international events organised by third parties.

Lastly, it claims that the General Court failed to discharge its duty under Article 263 TFEU by rejecting its arguments and evidence in that regard, in paragraphs 116, 117, 121 and 127 of the judgment under appeal, on the ground that they were unfounded, ineffective or even irrelevant in so far as they concerned either matters of intention and implementation which did not need to be taken into account in order to establish the existence of a restriction of competition by ‘object’, or a sporting discipline other than that constituting the market concerned by that restriction. In addition, that court did not address other arguments or items of evidence adduced before it, in particular those relating to the matter of betting. In that regard, the ISU maintains that, despite not actually being part of the third-party planned international event that had been submitted to it, betting nevertheless lay at the heart of the concept that the organiser of that event intended to promote.

The Commission, supported by Mr Tuitert, Mr Kerstholt and EU Athletes, disputes all of those arguments.

By the second part of its first ground of appeal, the ISU claims that the General Court substituted its factual and legal assessment for that of the Commission in finding the existence of an infringement differing from that found in Article 1 of the decision at issue, in disregard of its duty under Article 263 TFEU and relying on a misinterpretation of Article 101(1) TFEU.

In that regard, the ISU maintains, in the first place, that the General Court not only focused on conduct that was partially different from that called into question by the Commission (singling out the very existence of the prior authorisation and eligibility rules, and not their adoption and enforcement), but also classified that conduct differently. With regard to that second aspect, the General Court found exclusively that there was a restriction of competition by ‘object’, not only on the basis of the factors on which the Commission had relied in Section 8.3 of the decision at issue (entitled ‘Restriction of competition by object’) but also those referred to in Section 8.5 of that decision (entitled ‘The Eligibility rules are within the scope of Article 101 [TFEU]’). The latter section concerns a separate matter, however.

In the second place, the ISU asserts that that rewriting of the decision at issue is itself based on a legally incorrect interpretation of Article 101(1) TFEU.

According to the ISU, that provision distinguishes restrictions of competition by ‘object’ and ‘effect’, the first of those two classifications being applicable only to conduct that may be considered, by its very nature, harmful to competition. In the present case, the General Court did not explain how the different elements to which it referred in paragraphs 87 to 89, 91 to 93 and 101 to 110 of the judgment under appeal justified such a classification. On the contrary, it merely examined the wording of the prior authorisation and eligibility rules and their aims in an abstract manner without context, then concluded, following that examination, that there was a possibility or risk that those rules could be used for anticompetitive purposes, given the discretionary power they confer on the ISU.

In addition, the ISU argues that the case-law relied on by the General Court in order to carry out that analysis (judgments of 1 July 2008, MOTOE, C-49/07, EU:C:2008:376, and of 28 February 2013, Ordem dos Técnicos Oficiais de Contas, C-1/12, EU:C:2013:127) is only relevant in the presence of restrictions of competition by ‘effect’ and cannot therefore be applied by analogy in order to rule on the potential existence of restrictions of competition by ‘object’, as the General Court did in paragraphs 72 and 88 of the judgment under appeal.

The Commission, supported by Mr Tuitert, Mr Kerstholt and EU Athletes, disputes all of those arguments.

By the third part of its first ground of appeal, the ISU complains that the General Court erred in law in upholding the findings that led the Commission to classify the prior authorisation and eligibility rules as a restriction of competition by object.

In that regard, it claims, in the first place, that the General Court was wrong to acknowledge that the content of those rules may be relied on in support of such a classification.

Contrary to what the Commission found in recitals 162 and 163 of the decision at issue and as the General Court stated in paragraphs 91 and 95 of the judgment under appeal, the ISU asserts that the fact that those rules provide for the possibility, for the ISU, to apply a set of severe penalties to athletes taking part in unauthorised international speed skating events is, in itself, insufficient to establish a restriction of competition by object. It therefore remains necessary that the examination of their effects makes it possible to establish that they were applied to athletes who took part in events for which authorisation was refused on illegitimate grounds.

Next, according to the ISU, contrary to what is apparent from recital 163 of the decision at issue and to the General Court's findings in paragraphs 85 to 89 of the judgment under appeal, the fact that the prior authorisation and eligibility rules do not refer to specifically identifiable objectives, that they do not contain clearly defined criteria and that the ISU therefore has discretionary power or a least too much discretion to apply them cannot, in itself, make it possible to establish that there is a restriction of competition by object either. The specific effects of those rules must also be assessed in this case.

In addition, contrary to what the Commission set out, inter alia, in recitals 164 and 165 of the decision at issue, the fact that those rules referred, in the version adopted in 2014, to the protection of the ISU's economic interests cannot, per se, lead to the conclusion that there is a restriction of competition by object, which the General Court moreover recognised in paragraphs 98 and 109 of the judgment under appeal.

Lastly, contrary to what the Commission found in recital 166 of the decision at issue, as the General Court acknowledged in paragraph 97 of the judgment under appeal, the fact that those rules may be applied to athletes participating in a third-party international event not authorised by the ISU, irrespective of any scheduling conflict between that event and an event organised or authorised by the ISU, is irrelevant, in so far it is not the existence of a scheduling conflict but rather the promotion of betting that led that association to refuse, in the initial version, the planned third-party international competition to which the decision at issue refers.

In the second place, the ISU maintains that the General Court made three errors in law in analysing the aims pursued by the prior authorisation and eligibility rules.

First, according to the ISU, the General Court recognised, in paragraph 109 of the judgment under appeal, that the ISU was entitled to seek to protect its own economic interests, contrary to what the Commission stated in recital 169 of the decision at issue, but it failed to infer that that institution could not conclude that there was an anticompetitive object from that fact alone.

Next, the ISU claims that the General Court sought to compensate for that error and the consequential impossibility of basing arguments on the aims pursued by the prior authorisation and eligibility rules in order to justify the classification of an anticompetitive object by inferring, in paragraph 111 of the judgment under appeal, the existence of such an object from other elements, taking into account the allegedly vague, arbitrary and disproportionate nature of those rules. In so doing, that court substituted its own assessment for that of the Commission, which had relied on those elements, in the decision at issue, for purposes other (recitals 255 to 258) than the establishment of a restriction of competition by object (recitals 162 to 187).

Lastly, according to the ISU, it follows from the case-law that those elements are relevant solely in order to assess the effect of conduct liable to restrict competition (judgment of 28 February 2013, Ordem dos Técnicos Oficiais de Contas, C-1/12, EU:C:2013:127, paragraph 69).

In the third place, the ISU claims that the General Court erred in law in reviewing the findings of the Commission relating to the economic and legal context surrounding the prior authorisation and eligibility rules. First, that court wrongly rejected, in paragraphs 115 to 117 of the judgment under appeal, its arguments relating to the authorisation of many third-party international events in the field of figure skating on the ground that that discipline did not form part of the relevant market in the present case. It follows from the case-law that elements relating to a market other than the market concerned may be taken into consideration in the examination of that context (judgment of 11 September 2014, CB v Commission, C-67/13 P, EU:C:2014:2204, paragraphs 78 and 79). Second, the General Court wrongly rejected, in paragraph 119 of the judgment under appeal, several established examples of the authorisation of third-party events on the ground that, according to that court, the Commission had correctly considered that there was a possibility or likelihood that the prior authorisation and eligibility rules would be applied in an arbitrary manner.

The Commission, supported by Mr Tuitert, Mr Kerstholt and EU Athletes, disputes all of those arguments.

In so far as it constitutes an economic activity, the practice of sport is subject to the provisions of EU law applicable to such activity (see, to that effect, judgments of 12 December 1974, Walrave and Koch, 36/74, EU:C:1974:140, paragraph 4, and of 16 March 2010, Olympique Lyonnais, C-325/08, EU:C:2010:143, paragraph 27).

Only certain specific rules which were adopted solely on non-economic grounds and which relate to questions of interest solely to sport per se must be regarded as being extraneous to any economic activity. That is the case, in particular, of those on the exclusion of foreign players from the composition of teams participating in competitions between teams representing their country or the determination of ranking criteria used to select the athletes participating individually in competitions (see, to that effect, judgments of 12 December 1974, Walrave and Koch, 36/74, EU:C:1974:140, paragraph 8; of 15 December 1995, Bosman, C-415/93, EU:C:1995:463, paragraphs 76 and 127; and of 11 April 2000, Deliège, C-51/96 and C-191/97, EU:C:2000:199, paragraphs 43, 44, 63, 64 and 69).

Apart from those specific rules, the rules issued by sporting associations and, more broadly, the conduct of the associations which adopted them come within the scope of the FEU Treaty provisions on competition law where the conditions of application of those provisions are met (see, to that effect, judgment of 18 July 2006, Meca-Medina and Majcen v Commission, C-519/04 P, EU:C:2006:492, paragraphs 30 to 33), which means that those associations may be categorised as ‘undertakings’ within the meaning of Articles 101 and 102 TFEU or that the rules at issue may be categorised as ‘decisions by associations of undertakings’ within the meaning of Article 101 TFEU.

That may be the case, in particular, regarding rules on a sporting association's exercise of powers governing prior approval for sporting competitions, the organisation and marketing of which constitute an economic activity for the undertakings involved or planning to be involved therein, including such an association (see, to that effect, judgment of 1 July 2008, MOTOE, C-49/07, EU:C:2008:376, paragraph 28). The same may also apply to rules that seek to cover the participation of athletes in such events, which constitutes an economic activity where they practise the sport concerned as a professional or semi-professional.

That being so, a sporting activity undeniably has specific characteristics which, whilst relating especially to amateur sport, may also be found in the pursuit of sport as an economic activity (see, to that effect, judgment of 13 April 2000, Lehtonen and Castors Braine, C-176/96, EU:C:2000:201, paragraph 33).

The specific characteristics of an economic sector may potentially be taken into account, along with other elements and provided that they are relevant, in the application of Article 101 TFEU and more especially when examining the question whether a particular type of conduct should be considered as having as its ‘object’ or, failing that, ‘effect’, the prevention, restriction or distortion of competition, in the light of the economic and legal context of which it forms a part and the ‘actual conditions’ or ‘actual context’ that characterise the structure and functioning of the sectors or markets concerned (see, to that effect, judgment of 15 December 1994, DLG, C-250/92, EU:C:1994:413, paragraph 31). Such an assessment may involve taking into account, for example, the nature, organisation or functioning of the sport concerned and, more specifically, how professionalised it is, the manner in which it is practised, the manner of interaction between the various participating stakeholders and the role played by the structures and bodies responsible for it at all levels, with which the Union is to foster cooperation, in accordance with Article 165(3) TFEU.

Under Article 101(1) TFEU all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market are incompatible with the internal market.

As regards the ISU's arguments according to which the General Court substituted its own assessment for that of the Commission by considering that there was an infringement other than that described by that institution, it must be noted, in the first place, that, in paragraphs 57 and 126 of the judgment under appeal, the General Court held, in essence, that the Commission had found the existence of an infringement consisting, for the ISU, of having adopted and enforced, on the worldwide market for the organisation and commercial exploitation of international speed skating events and the exploitation of the various rights associated with those events, the prior authorisation and eligibility rules, in the versions adopted in 2014 and 2016, as the ISU moreover asserts in its appeal. The General Court also indicated, in the first of those two paragraphs, that the Commission had classified that conduct as an infringement of Article 101(1) TFEU on the grounds that it had the ‘object’ and ‘effect’ of restricting competition.

In the second place, the General Court, in paragraphs 77 to 120 of the judgment under appeal, went on to review the findings that had led the Commission to classify the fact of having adopted and enforced the prior authorisation and eligibility rules as conduct having the ‘object’ of restricting competition, by examining, first, those relating to the content of those rules, second, those concerning the aims pursued by those rules and, third, those relating to the context of which those rules form a part, in accordance with the settled case-law of the Court of Justice, to which the General Court, moreover, refers in paragraphs 66 and 67 of the judgment under appeal. Following its review, the General Court found, in paragraphs 121 to 123 of the judgment under appeal, that the Commission had not committed any of the errors of law or manifest errors of assessment complained of by the ISU, with the result that the classification of conduct having the ‘object’ of restricting competition did not appear unfounded and there was therefore no need to rule on the ISU's arguments concerning the alternative and subsidiary classification of conduct having the ‘effect’ of restricting competition.

In the third and last place, it follows from the case file before the Court of Justice that the identification of the conduct at issue in the present case and the classification attributed thereto, in the judgment under appeal, correspond to the content of the decision at issue in all respects. Article 1 of that decision, according to which the ISU infringed Article 101(1) TFEU by adopting and enforcing the prior authorisation and eligibility rules, must be read in the light of recitals 161 to 188 thereof, in which the Commission considered that, having regard to their content, the aims that they seek to achieve and the economic and legal context of which they form a part, those rules should be regarded as having as their ‘object’ the restriction of competition before adding separately and independently, in recitals 194 to 209 of that decision, that those rules also had the ‘effect’ of restricting competition.

In particular, as those various findings show, the Commission did not make a legal classification ‘combining’ the alternative concepts of anticompetitive ‘object’ and ‘effect’, as the ISU claims. On the contrary, it made, in parallel, two legal classifications that were separate and independent of one another, of which either, if well founded, would serve to justify the operative part of the decision at issue.

In those circumstances, the General Court did not rule, contrary to what the ISU asserts, on an infringement differing from that identified by the Commission. On the contrary, it merely held that the first of the two legal classifications made by that institution was not vitiated by any of the errors alleged by the ISU.

Moreover, although it is true that the sections of the judgment under appeal that concern the review of the merits of that classification in the light of the content (paragraphs 81 to 98), the aims (paragraphs 99 to 114) and the economic and legal context (paragraphs 115 to 120) of the prior authorisation and eligibility rules make no mention at any time of the way in which they were enforced by the ISU, it must be held that that approach is the same as that used by the Commission in the decision at issue. Nor do the sections of the decision at issue in which the content (recitals 162 to 167 and 180 to 187), the aims (recitals 168 to 171) and the economic and legal context (recitals 172 and 173) of those rules are examined address such an issue, which is solely examined in different sections, such as those relating to the ‘intention’ of the ISU (recitals 174 to 179) or the ‘effect’ of those rules on competition (recitals 199 to 205).

Consequently, the ISU's arguments to the effect that the General Court found an infringement other than that identified by the Commission in the decision at issue, by substituting its own assessment for that of that institution, must be rejected as unfounded.

The ISU's arguments that the General Court incorrectly interpreted Article 101(1) TFEU and wrongly held, on the basis of that interpretation, that the Commission had been correct in its classification of the prior authorisation and eligibility rules as conduct having as its ‘object’ the restriction of competition are principally of three kinds.

In essence, the ISU claims that the General Court, first, incorrectly interpreted the concept of anticompetitive ‘object’ in finding, as did the Commission, that, given the type of conduct that was at issue in the present case, the examination of its content, the aims that it sought to achieve and its legal and economic context should be carried out in the light of the judgments of 1 July 2008, MOTOE (C-49/07, EU:C:2008:376), and of 28 February 2013, Ordem dos Técnicos Oficiais de Contas (C-1/12, EU:C:2013:127). Second, the General Court wrongly held that that conduct should be classified as an infringement of Article 101(1) TFEU on the ground that it had as its ‘object’ the restriction of competition and that it followed from the Commission's assessments relating to the content, aims and economic and legal context of the prior authorisation and eligibility rules. At the same time, that court failed to rule on other essential elements such as the intention attributed by the Commission to the ISU and the effects of those rules on the relevant market and on the related market of figure skating. Third, while carrying out a joint examination of the second and fourth pleas in law which concerned the concept of anticompetitive ‘object’ within the meaning of Article 101(1) TFEU and the case-law of the Court of Justice according to which certain conduct may be regarded as falling outside the scope of that provision (judgment of 19 February 2002, Wouters and Others, C-309/99, EU:C:2002:98), the General Court committed additional errors of law consisting, in essence, of ‘merging’ those two separate questions and substituting, in so doing, its own assessment for that of the Commission.

An appellant is entitled to lodge an appeal relying on grounds which arise from the judgment under appeal itself and seek to criticise, in law, its correctness (judgments of 29 November 2007, Stadtwerke Schwäbisch Hall and Others v Commission, C-176/06 P, EU:C:2007:730, paragraph 17, and of 25 January 2022, Commission v European Food and Others, C-638/19 P, EU:C:2022:50, paragraph 77).

In the present case, the cross-appellants seek, by their first ground of appeal, to call into question the legal merits of the grounds by which the General Court held, in paragraphs 154 and 156 to 164 of the judgment under appeal, that the Commission had erred in law in finding that the arbitration rules reinforced the restriction of competition by ‘object’ to which the prior authorisation and eligibility rules gave rise.

Furthermore, the grounds of the judgment under appeal referred to in that first ground of the cross-appeal are those that led the General Court to uphold the sixth plea in law and, in part, the seventh plea in law raised at first instance. Therefore, those grounds constitute, as is apparent from paragraphs 171 to 174 and 180 of that judgment, support for the operative part of that judgment in so far as it annulled in part Article 2 of the decision at issue, to the extent that that article refers to the arbitration rules. Consequently, and contrary to what the ISU claims, that ground of appeal is not ineffective.

That being so, since the Court of Justice's jurisdiction on an appeal is nonetheless limited to assessing the findings of law on the pleas argued before the General Court, it cannot rule, in this context, on grounds or arguments that were not put forward at first instance (see, to that effect, judgments of 30 March 2000, VBA v VGB and Others, C-266/97 P, EU:C:2000:171, paragraph 79, and of 25 January 2022, Commission v European Food and Others, C-638/19 P, EU:C:2022:50, paragraph 80).

In the present case, the ISU correctly contends that the arguments of the cross-appellants concerning the legal consequences that may arise from a potential lack of independence of the CAS do not form part of the arguments put forward before the General Court or, moreover, of those based on which the Commission adopted the decision at issue.

Those arguments must therefore be rejected as inadmissible.

By contrast, the other arguments, whose admissibility the ISU disputes, which relate to all the recitals of the decision at issue which the parties challenged at first instance and which the cross-appellants and the Commission complain that the General Court failed to take into account or incorrectly took into account when it ruled on the plea in law put forward by the ISU on the arbitration rules, are admissible.

In the first place, it should be noted that, in recitals 268 to 286 of the decision at issue and more particularly in recitals 269 to 271, 277 and 281 to 283 of that decision, the Commission considered that the arbitration rules, while they did not in themselves constitute an infringement of Article 101(1) TFEU, should however be regarded, given their content, their conditions for implementation and their scope, in the legal and economic context to which they belong, as reinforcing the infringement identified previously by the Commission. More specifically, the Commission found in those recitals, in essence, that by making judicial review, in the light of EU competition law, of arbitral awards by which the CAS rules on the validity of decisions adopted by the ISU by virtue of discretionary powers conferred on it by the prior authorisation and eligibility rules more difficult, the arbitration rules reinforced the infringement of EU law connected with the existence of such powers. In particular, the Commission found that that judicial review was entrusted to a court established in a third country, thus outside the European Union and its legal order, and that, according to the case-law of that court, such awards could not be reviewed in the light of the EU competition rules. In so doing, the Commission, ultimately, complained not of the existence, organisation or operation of the CAS as an arbitration body, but rather of the legal immunity enjoyed by the ISU, in its view, in the light of EU competition law, in the exercise of its decision-making and sanctioning powers, to the detriment of persons who may be affected by the lack of a framework for those powers and the discretionary nature which derives therefrom.

In the second place, there are, in essence, four grounds that led the General Court to take the view that that reasoning on the part of the Commission was vitiated by errors of law. First, that court held that the Commission had neither called into question the very possibility of recourse to arbitration to settle certain disputes nor considered that the conclusion of an arbitration clause in itself restricted competition (paragraph 154 of the judgment under appeal). Second, it stated that nor had the Commission considered that the arbitration rules infringed the right to a fair hearing as such (paragraph 155 of that judgment). Third, it considered that by conferring binding and exclusive jurisdiction on the CAS to review decisions adopted by the ISU by virtue of its powers in respect of prior authorisation and sanctions, the arbitration rules could be justified by legitimate interests linked to the specific nature of the sport, consisting of enabling a single, specialised court to rule, in a quick, economic and uniform manner, on a multiplicity of disputes, often having an international dimension, to which the exercise of high-level professional sporting activity may give rise (paragraph 156 of that judgment). Fourth, the General Court stressed that athletes and entities or undertakings that plan to organise international speed skating events in competition with those organised by the ISU could not only bring actions for damages before the national courts but also lodge complaints with the Commission and the NCAs for breach of the rules of competition (paragraphs 157 to 161 of that judgment).

It must be observed that the first two of those grounds, which are not disputed before the Court of Justice, are not such as to justify the decision to annul in part the decision at issue taken by the General Court since they do not concern the assessments that led the Commission to call into question the arbitration rules and they are therefore not such as to call into question the merits of those assessments.

By contrast, the cross-appellants and the Commission are correct in maintaining that the third and fourth of those grounds are incorrect in law.

First, the general and undifferentiated assessment that the arbitration rules may be justified by legitimate interests linked to the specific nature of the sport, in so far as they confer on the CAS mandatory and exclusive jurisdiction to review decisions that the ISU may adopt by virtue of its powers in respect of prior authorisation and sanctions, disregards, as the cross-appellants and the Commission essentially argue, the requirements that must be satisfied for an arbitration mechanism such as that at issue in the present case to be capable of being regarded, on the one hand, as allowing effective compliance with the public policy provisions that EU law contains to be ensured and, on the other hand, as being compatible with the principles underlying the judicial architecture of the European Union.

In that regard, it must be noted that, as is common ground between the parties and as the General Court observed in paragraphs 156, 159 and 160 of the judgment under appeal, the arbitration rules imposed by the ISU concern, in particular, two types of disputes which may arise in the context of economic activities consisting of (i) seeking to organise and market international speed skating events and (ii) seeking to take part in such competitions as a professional athlete. Those rules therefore apply to disputes concerning the exercise of a sport as an economic activity and, on that basis, come under EU competition law. Therefore, they must comply with EU competition law for the reasons set out in paragraphs 91 to 96 of the present judgment, in so far as they are implemented in the territory in which the EU and FEU Treaties apply, irrespective of the place where the entities that adopted them are established (judgments of 25 November 1971, Béguelin Import, 22/71, EU:C:1971:113, paragraph 11; of 27 September 1988, Ahlström Osakeyhtiö and Others v Commission, 89/85, 104/85, 114/85, 116/85, 117/85 and 125/85 to 129/85, EU:C:1988:447, paragraph 16; and of 6 September 2017, Intel v Commission, C-413/14 P, EU:C:2017:632, paragraphs 43 to 45).

It is, consequently, only the implementation of such rules in the context of such disputes and in the territory of the European Union that is at issue in the present case and not the implementation of those rules in a territory other than the European Union, their implementation in other types of disputes, such as disputes concerning merely the sport as such and therefore not falling under EU law, or, a fortiori, the implementation of the arbitration rules in different areas.

Furthermore, as follows from paragraphs 181 and 184 of the present judgment, those rules are at issue, in the present case, not to the extent that they subject the review at first instance of decisions issued by the ISU to the CAS as an arbitration body, but only to the extent that they subject the review of the arbitral awards made by the CAS and the last-instance review of decisions of the ISU to the Tribunal fédéral (Federal Supreme Court), that is to say, a court of a third State.

In that regard, the Court of Justice has consistently held that Article 101 and 102 TFEU are provisions having direct effect which create rights for individuals which national courts must protect (judgments of 30 January 1974, BRT and Société belge des auteurs, compositeurs et éditeurs, 127/73, EU:C:1974:6, paragraph 16, and of 14 March 2019, Skanska Industrial Solutions and Others, C-724/17, EU:C:2019:204, paragraph 24) and which are a matter of EU public policy (see, to that effect, judgment of 1 June 1999, Eco Swiss, C-126/97, EU:C:1999:269, paragraphs 36 and 39).

That is why, while noting that an individual may enter into an agreement that subjects, in clear and precise wording, all or part of any disputes relating to it to an arbitration body in place of the national court that would have had jurisdiction to rule on those disputes under the applicable national law, and that the requirements relating to the effectiveness of the arbitration proceedings may justify the judicial review of arbitral awards being limited (see, to that effect, judgments of 1 June 1999, Eco Swiss, C-126/97, EU:C:1999:269, paragraph 35, and of 26 October 2006, Mostaza Claro, C-168/05, EU:C:2006:675, paragraph 34), the Court has nevertheless pointed out that such judicial review must, in any event, be able to cover the question whether those awards comply with the fundamental provisions that are a matter of EU public policy, which include Articles 101 and 102 TFEU (see, to that effect, judgment of 1 June 1999, Eco Swiss, C-126/97, EU:C:1999:269, paragraph 37). Such a requirement is particularly necessary when such an arbitration mechanism must be regarded as being, in practice, imposed by a person governed by private law, such as an international sports association, on another, such as an athlete.

In the absence of such judicial review, the use of an arbitration mechanism is such as to undermine the protection of rights that subjects of the law derive from the direct effect of EU law and the effective compliance with Articles 101 and 102 TFEU, which must be ensured — and would therefore be ensured in the absence of such a mechanism — by the national rules relating to remedies.

Compliance with that requirement for effective judicial review applies in particular to arbitration rules such as those imposed by the ISU.

The Court of Justice has held previously that, while having legal autonomy entitling them to adopt rules relating, inter alia to the organisation of competitions, their proper functioning and the participation of athletes in those competitions (see, to that effect, judgments of 11 April 2000, Deliège, C-51/96 and C-191/97, EU:C:2000:199, paragraphs 67 and 68, and of 13 June 2019, TopFit and Biffi, C-22/18, EU:C:2019:497, paragraph 60), sports associations cannot, in doing so, limit the exercise of rights and freedoms conferred on individuals by EU law (see, to that effect, judgments of 15 December 1995, Bosman, C-415/93, EU:C:1995:463, paragraphs 81 and 83, and of 13 June 2019, TopFit and Biffi, C-22/18, EU:C:2019:497, paragraph 52), which include the rights that underlie Articles 101 and 102 TFEU.

For that reason, rules such as the prior authorisation and eligibility rules must be subject to effective judicial review as is apparent from paragraphs 127 and 134 of the present judgment.

That requirement of effective judicial review means that, in the event that such rules contain provisions conferring mandatory and exclusive jurisdiction on an arbitration body, the court having jurisdiction to review the awards made by that body may confirm that those awards comply with Articles 101 and 102 TFEU. In addition, it entails that court's satisfying all the requirements under Article 267 TFEU, so that it is entitled, or, as the case may be, required, to refer a question to the Court of Justice where it considers that a decision of the Court is necessary concerning a matter of EU law raised in a case pending before it (see, to that effect, judgments of 23 March 1982, Nordsee, 102/81, EU:C:1982:107, paragraphs 14 and 15, and of 1 June 1999, Eco Swiss, C-126/97, EU:C:1999:269, paragraph 40).

Thus, the General Court erred in law by merely finding, in an undifferentiated and abstract manner, that the arbitration rules ‘may be justified by legitimate interests linked to the specific nature of the sport’, in so far as they confer on ‘a specialised court’ the power to review disputes relating to the prior authorisation and eligibility rules, without seeking to ensure that those arbitration rules complied with all the requirements referred to in the preceding paragraphs of the present judgment and thus allowed for an effective review of compliance with the EU competition rules, even though the Commission correctly relied on those requirements in recitals 270 to 277, 282 and 283 of the decision at issue in concluding that those rules reinforced the infringement identified in Article 1 of that decision.

Second, that court also erred in law in holding, in paragraphs 157 to 161 of the judgment under appeal, that the effectiveness of EU law was ensured in full, given, on the one hand, the existence of remedies allowing recipients of a decision refusing to allow them to participate in a competition or of an ineligibility decision to seek damages for the harm caused to them by that decision before the relevant national courts and, on the other hand, the possibility of lodging a complaint with the Commission or an NCA.

As essential as it may be (see, in that regard, judgments of 20 September 2001, Courage and Crehan, C-453/99, EU:C:2001:465, paragraphs 26 and 27, and of 14 March 2019, Skanska Industrial Solutions and Others, C-724/17, EU:C:2019:204, paragraphs 25, 43 and 44), the fact that a person is entitled to seek damages for harm caused by conduct liable to prevent, restrict or distort competition cannot compensate for the lack of a remedy entitling that person to bring an action before the relevant national court seeking, as appropriate following the grant of protective measures, to have that conduct brought to an end, or where it constitutes a measure, the review and annulment of that measure, if necessary following a prior arbitration procedure carried out under an agreement that provides for such a procedure. The same applies to persons practising professional sport, whose career may be especially short, in particular where they practise that sport at a high level.

In addition, that fact cannot justify that right's being formally preserved but, in practice, deprived of an essential part of its scope, as would be the case if the judicial review that can be carried out in respect of the conduct or measure in question was excessively limited in law or in fact, in particular because it cannot concern the public policy provisions of EU law.

More especially, the possibility of lodging a complaint with the Commission or an NCA cannot be relied on in order to justify the lack of a remedy such as that referred to in paragraph 201 of the present judgment. It must, moreover, be pointed out, as regards the Commission, that, as that institution and the cross-appellants correctly assert, Article 7 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1) does not give a person who lodges an application under that article the right to insist that a final decision as to the existence or non-existence of the infringement he or she alleges be taken (see, to that effect, of 19 September 2013, EFIM v Commission, C-56/12 P, EU:C:2013:575, paragraphs 57 and the case-law cited).

The first ground of appeal is therefore well founded in its entirety. Consequently, the judgment under appeal must be set aside in so far as it annulled in part Article 2 of the decision at issue, to the extent that that article concerns the arbitration rules.