Volume 11 - Issue 1

Contents

Competition Law Review - Volume 11 Issue 1

Editorial

Editorial - Competition Law in Leisure Markets

Ben Van Rompuy

Articles

The Striani Challenge to UEFA Financial Fair-Play. A New Era after Bosman or Just a Washout?
Stefano Bastianon

UEFA club licensing and fair play regulations (2012) consist of two sets of rules: on the one hand, the rules concerning the club licensing system (hereinafter referred to as “CLS rules”) defining the minimum sporting, infrastructure, personnel and administrative, legal and financial criteria to be fulfilled by a club in order to be granted a licence by a UEFA member association as part of the admission procedure to enter the UEFA club competitions; on the other hand, the rules concerning the monitoring process aimed at achieving UEFA’s financial fair play objectives (hereinafter referred to as “FFP rules”). The basic rule of financial fair-play is the “break-even requirement”. According to this rule “relevant expenses” of each individual club are not allowed to exceed the club’s “relevant revenue”. This means that a club should always aim to at least break-even, that is in a reporting period a club’s relevant expenses should be no greater than the club’s relevant income. In this context, in 2013 Daniel Striani, a football players’ agent, decided to challenge the FFP rules on the field of EU law by lodging a complaint to the Commission for allegedly breach of EU competition law. According to Striani’s lawyer, the target of the complaint is Art 57 concerning the break-even requirement. Such a rule is deemed to be an agreement between undertaking pursuant to Art 101(1) TFEU which generates several anti-competitive effects: it restricts investments; it fossilizes the existing market structure, allowing current top clubs to maintain their leadership and even to increase it; it reduces the number of transfers, of the transfers amounts and of the numbers of players under contract per club; it generates a deflationary effect on the level of players’ wages; consequently, it generates a deflationary effect on the revenue of players’ agents..

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Premiership Rugby Union: Through the Antitrust Looking Glass
Beverley Williamson

The relationship between competition law and sport is an uneasy one, but one that seems to be evolving, particularly in respect of professional football. The same however, cannot be said for professional rugby union. This is particularly true in England where the governing body, the Rugby Football Union, appear able to implement anti-competitive practices with relative impunity, or at least, significant disinterest from the competition authorities. This paper seeks to consider those practices through a competition law lens and in doing so, highlight just how far professional rugby union in England has yet to travel down the competition law rabbit hole.

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Entertainment made in Spain: competition in the bullfighting industry?
Francisco Marcos

Controversial for many reasons, bullfighting is probably one of the most typical entertainment activities in Spain. Bullfights are an idiosyncratic spectacle belonging to the Spanish cultural tradition, but which has also a meaningful economic significance. This article will look at the role of market forces and competition in the bullfighting business, describing the peculiarities of its organization and looking at the many anti-competitive features that characterize it. Spanish local authorities are strongly involved in the organization of bullfights and strict and detailed public rules govern the intervening actors and the performance during the shows. Thus, the institutional framework of bullfighting heavily constrains competition conditions in the industry, setting the scenario for a limited role of market forces. Furthermore, history shows that the collective organization of different players involved (promoters, breeders, bullfighters and subordinates) in order to exert their market power has occasionally led to anti-competitive actions and reactions. Thus, unsurprisingly, the Spanish Competition authorities have dealt with some anti-competitive behaviour by some of the players participating in the bullfighting industry.

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The Real Madrid case: A State aid case (un)like any other?
Oskar van Maren

On 18 December 2013, the European Commission announced the launch of an official investigation into alleged illegal State aid on advantageous property transfers granted by the Council of Madrid to Real Madrid after it received numerous complaints by citizens. The Real Madrid case is one of the four State aid cases related to sport under formal investigation by the Commission. Interestingly enough, no Member State has ever been sanctioned for aiding a sporting entity and the European Courts were never called upon to judge on the matter. However, while public authorities have problems getting popular support for investing public money in sports infrastructures, the number of complaints by citizens regarding aid in the sports sector has gone up. It is therefore no surprise that the Commission’s final decisions on these four cases, including the Real Madrid case, are eagerly awaited. This paper will (1) discuss the Commission’s past and current position regarding State aid in the sport sector; (2) give an in-depth analysis of the Real Madrid case under EU competition law and; (3) discuss the possible consequences of a negative Commission decision for Real Madrid and determine the other conclusions derived from this State aid case.

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Google’s Anti-Competitive and Unfair Practices in Digital Leisure Markets
Anca D Chirita

The purpose of this article is to reflect on the critical use of commitments in the Google case and to analyse and review the matrix of facts that have been highlighted in the academic and practitioner literature. Therefore, the core areas of reflection in this contribution are: relevant markets; barriers to entry; network and lock-in effects; dominance; and, potential anti-competitive, as well as unfair practices as regards commercial advertisements. The analysis of the online search-engine market is complemented by the comparative insights offered by the US class action against Google’s Android mobile applications. In the EU, a similar trend is noticeable in the complaining tone of Google’s competitors. When this is coupled with the transitional period of the mandate of the newly appointed Commissioner for Competition and the political sensitivity over the potential to misuse search-engine users’ personal data to serve commercial purposes, such as boosting its advertising revenues, the giant Google swims in uncertain waters.

Other Articles

Consumer Welfare in EU Competition Law: What Is It (Not) About?
Victoria Daskalova

More than a decade after the proclamation of consumer welfare as a goal of EU competition law, a fundamental question remains unanswered: namely, what is the content of the EU consumer welfare standard? What types of benefits and harms count respectively as welfare and as harm? Whose harm and whose benefit is included in the definition? Few answers have been available to these crucial, from a legal perspective, questions. The goal of this article is to explore the meaning of consumer welfare in terms of these questions. In particular, considering the assumption that the notion of consumer welfare in EU competition law is borrowed from economics, the article will attempt to verify to what extent consumer welfare coincides with the notion of consumer surplus in economics. The focus is therefore on 1) whether consumer can be taken to mean the final consumer or the intermediary purchaser and 2) whether the notion of harm refers primarily to price effects. Part I of the paper focuses on the definition of consumer welfare in antitrust law and in economics. Part II considers the definitions of consumer welfare in the Commission’s soft law and argues that a finding of an end user surplus cannot be supported. Part III turns to the jurisprudence of the European Courts and argues that support for end-user surplus cannot be found in the Court’s case law. The paper concludes that although we do not find support for an end-user surplus standard in the Court’s jurisprudence, the change in language in the 2012 Post Danmark ruling leaves us wondering as to whether and in what direction the Court’s approach might change.

Case Comment

Case Comment: Workload Division after the Si.mobil and easyJet Rulings of the General Court
Catalin S Rusu