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CASE STUDY - European Union Law
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Case Study: Rise like a Phoenix Riannevan Veen (578757)
In this case, the Court of Rotterdam has referred two preliminary questions to the Court of Justice of
the European Union (CJEU). This case concerns European competition law. The two preliminary
questions posed by the Court in this case are:
1. Does any of the following measures violate Article 101(1) TFEU or Article 102 TFEU?
a. A ban of a club participating in the ‘Mega League’ from the KNVB national football
competition and the UEFA European football competitions?
b. A ban of any football player that is hired such a club from playing for his national
team in the UEFA European championship?
2. Does an agreement such as the one creating a ‘Mega League’ constitute a violation of Article
101(1) TFEU?
Solution Question 1a
Article 101(1) TFEU
1. Article 101(1) TFEU prohibits conducts between undertakings to prevent or avoid competition. To
determine whether in this case the ban on participation in the KNVB and UEFA competitions falls
under the prohibition of cartels, four cumulative conditions must be considered.
2. (1) The first condition is that the actors must be qualified as undertakings or an association of
undertakings. There can only be a cartel formation in the case of two or more independent
undertakings (multilateral behavior). Behavior within one undertaking is not possible: this also
applies to different legal entities that can be classified as one entity.
3. A definition of ‘undertaking’ does not appear from the Treaties but follows from case law. It states
that the legal personality of an entity and the way in which its financed is not relevant to qualify as an
undertaking. However, it is required that the companies carry out economic activities. According to
the Court of Justice, an activity can be characterized as economic when:
a. Offering goods or services on a given market; and
b. The activity could, in principle, be carried by a private company. 1
4. Caselaw teaches us that football clubs are undertakings under the scope of Article 101(1) TFEU. 2 They
offer services and goods (competitions, matches, but also merchandise) and are private entities.
National and international associations grouping them, are then associations of undertakings. The
KNVB and UEFA both have football clubs under contract. The decisions they make are binding for the
clubs.3 This means that the KNVB and UEFA can be seen as associations of undertakings.
5. (2) The second condition is that the conduct between the undertakings must be captured by one of
the following forms: an agreement, a concerted practice or a decision by an association of
undertakings.
1
CJEU, 23 April 1991, Case 41/90, ECLI:EU:C:1991:161 (Höffner and Elser), para. 21.
2
CJEU, 26 January 2005, T-193/02, ECLI:EU:T:2005:22 (Piau), para. 4.
3
LexisNexis, Article 101(1) TFEU: The prohibition on restrictive agreements (lexisnexis.com).
, 6. An association of undertakings takes responsibility for the interests of the members. If the
association of undertakings takes a decision, the undertakings that fall under the association, will
carry out an economic activity in a certain way. They are obligated to follow the decision. In this case,
both the KNVB and UEFA have excluded the clubs that participate in the ‘Mega League’ from their
competition. The content of the decisions is therefore a guideline for the economic activities of the
members of the association. It aims to coordinate the behavior of members and can thus be
classified as decisions of associations of undertakings. 4 It is not an agreement, now there is no clear
indication of a consent between both parties in this case. They both just determined, in my opinion
individually, that they exclude certain football clubs.
7. (3) The third condition is that the conduct must be collusive in a sense that is anticompetitive by
object or by effect. A restriction by object includes all measures that are directly contrary to
competition law. The conduct is then by definition prohibited, and no further investigation is
necessary. A restriction by effect is not by definition prohibited, but the effect of the measure does
result in a restriction of competition. In such a situation, it will have to be determined whether
competition is really being restricted by means of, among other things, the Minimis Notice. 5
8. In the case of excluding football clubs to participate in the competitions, there is a restriction by
object. To determine this, the content of the decision, its objectives and the economic and legal
context must be considered.6 The clubs are contractually bound to UEFA, which states that they may
only participate in their competitions and follow their rules. 7 However, competition law weighs more
heavily and new competitions may be set up. 8 By excluding a large group – all clubs that participate in
the Mega League – from a competition, many clubs will not want to play in the Mega League. This
ensures that they have a very weak position on the market. The KNVB and UEFA aim here to
eliminate the Mega League. The purpose of the conduct reveals the conduct to harm competition. In
this case, it is therefore no longer necessary to prove that the measure was anticompetitive.
9. (4) The fourth and last condition is that the collusive conduct must affect trade between Member
States. The measure must, at least potentially, have prevented trade. 9 To determine this, the pattern-
of-trade test is important. A measure is cross-border if it ‘may have a direct or indirect, actual or
potential, impact on the pattern of trade between Member States.’ This test is interpreted broad and
captures quantitative and qualitative changes to trade. 10 The fact that the KNVB only has a national
character does not mean that Article 101(1) TFEU cannot be applied. 11
10. If a club participates in the Mega League, they will not be able to play in the competition of KNVB and
UEFA. This means this clubs will get much less publicity and are very limited in the offering of their
services. There will be less profit, they will not be able to pay for television commercials or buy other
players. The measure therefore sure does have an affect on the trade between Member States.
4
Overheid, Richtsnoeren samenwerkingsondernemingen (wetten.overheid.nl), para. 15.
5
Cases and Materials European Union Law, De minimis Notice, para. 2.
6
Concurrences, Anticompetitive object or effect (concurrences.com).
7
Juzgado De Lo Mercantil de Madrid, 20 April 2021, 150/2021-0001, p. 7.
8
CJEU, 16 December 2020, T-93/18, ECLI:EU:T:2020:610 (ISU).
9
CJEU, 27 April 1966, Cases 56 and 58-64, ECLI:EU:C:1966:19 (Consten and Grundig).
10
CJEU, 30 June 1966, Case 56/65, ECLI:EU:C:1966:38 (Société Technique Minière summary), para. 5.
11
CJEU, 28 February 1991, C-234/89, ECLI:EU:C:1991:91 (Delimitis), para. 14.
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