**Case T-193/02**

**Laurent Piau**

**v**

**Commission of the European Communities**

(Fédération internationale de football association (FIFA) Players’ Agents Regulations – Decision by an association of undertakings – Articles 49 EC, 81 EC and 82 EC – Complaint – No Community interest – Rejection)

Judgment of the Court of First Instance (Fourth Chamber), 26 January 2005

Summary of the Judgment

1.     *Procedure – Intervention – Plea of inadmissibility not raised by the defendant – Inadmissibility – Absolute bar to proceeding
– To be considered of the Court’s own motion*

*(Statute of the Court of Justice, Arts 40, fourth para., and 53; Rules of Procedure of the Court of First Instance, Arts 113
and 116(3))*

2.     *Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Decision closing a
procedure initiated under Regulation No 17 following a complaint – Maker of the complaint – Other undertaking recognised as
having a legitimate interest in submitting comments in the administrative procedure – Admissibility*

*(Arts 81 EC, 82 EC and 230, fourth para., EC; Council Regulation No 17)*

3.     *Competition – Community rules – Associations of undertakings – Definition – National football associations – Included*

*(Arts 2 EC and 81 EC)*

4.     *Competition – Community rules – Associations of undertakings – Definition – Fédération internationale de football – Included*

*(Art. 81 EC)*

5.     *Competition – Agreements, decisions and concerted practices – Decisions of associations of undertakings – Definition – Regulations
governing the activity of players’ agents adopted by the Fédération internationale de football – Included*

*(Art. 81 EC)*

6.     *Competition – Administrative procedure – Examination of complaints – Complaint against the regulation of an economic activity
with no sport-related object by a private-law body not having been delegated power by a public authority – Decision closing
the administrative procedure – Judicial review limited to the assessments made by the Commission from the point of view of
the rules on competition*

*(Council Regulation No 17)*

7.     *Competition – Administrative procedure – Examination of complaints – Taking into account the Community interest in investigating
a case – Criteria of assessment – Discretion of the Commission – Limits – Judicial review*

*(Arts 81 EC, 82 EC and 85(1) EC)*

8.     *Competition – Agreements, decisions and concerted practices – Not allowed – Exemptions – Regulations governing the activity
of players’ agents adopted by the Fédération internationale de football – Introduction of a licence as a condition for carrying
on the occupation – Objective of raising professional standards and collective organisation of agents – Whether permissible*

*(Art. 81(3) EC)*

9.     *Competition – Dominant position – Collective dominant position – Definition – Collective entity – Conditions*

*(Art. 82 EC)*

10.   *Competition – Dominant position – Collective dominant position – Conditions – Position of the Fédération internationale de
football in the market for players’ agents’ services*

*(Art. 82 EC)*

1.     An application to intervene must be limited to supporting the form of order sought by one of the parties. An intervener is
not therefore entitled to raise a plea of inadmissibility that is not relied on by the party in support of whose form of order
it was granted leave to intervene.

However, under Article 113 of the Rules of Procedure, the Court may at any time, of its own motion, consider whether there
exists any absolute bar to proceeding with a case, including any raised by the interveners.

(see paras 35-37)

2.     The Commission’s refusal to continue with a procedure carried out on the basis of a complaint lodged under Regulation No 17
and the rejection of that complaint adversely affect its originator, who must be able to institute proceedings in order to
protect his legitimate interests. Similarly, another undertaking which the Commission has recognised as having a legitimate
interest in submitting comments in such a procedure is entitled to bring proceedings against the decision definitively closing
it.

(see para. 38)

3.     National associations which are groupings of football clubs for which the practice of football is an economic activity and
are therefore undertakings within the meaning of Article 81 EC are associations of undertakings within the meaning of that
provision.

The fact that those national associations are groupings of ‘amateur’ clubs alongside ‘professional’ clubs is not capable of
calling that assessment into question. In this regard, the mere fact that a sports association or federation unilaterally
classifies sportsmen or clubs as ‘amateur’ does not in itself mean that they do not engage in economic activities within the
meaning of Article 2 EC.

(see paras 69-70)

4.     The Fédération internationale de football (FIFA) constitutes an association of undertakings within the meaning of Article 81 EC.
It is a grouping of national associations which are themselves both associations of undertakings, since their members are
clubs which carry on an economic activity, and undertakings, since they themselves carry on an economic activity in that they
are required, under FIFA’s statutes, to participate in competitions organised by it, must pay back to it a percentage of the
gross receipts for each international match, and are recognised by those statutes, with FIFA, as being holders of exclusive
broadcasting and transmission rights for the sporting events in question.

Article 81 EC applies to associations in so far as their own activities or those of the undertakings belonging to them are
calculated to produce the results to which it refers. The legal framework within which decisions are taken by undertakings
and the classification given to that framework by the various national legal systems are irrelevant as far as the applicability
of the Community rules on competition is concerned.

(see paras 71-72)

5.     The regulations adopted by the Fédération internationale de football (FIFA) to govern the activity of players’ agents, an
economic activity involving the provision of services which does not fall within the scope of the specific nature of sport
as defined by the case-law of the Court of Justice, constitutes a decision by an association of undertakings within the meaning
of Article 81(1) EC, which must comply with the Community rules on competition where it has effects in the Community.

On the one hand, the regulations were adopted by FIFA of its own authority and not on the basis of rule-making powers conferred
on it by public authorities in connection with a recognised task in the general interest concerning sporting activity, and,
on the other hand, since those regulations are binding on national associations that are members of FIFA, which are required
to draw up similar rules that are subsequently approved by that federation, and on clubs, players and players’ agents, they
are the reflection of FIFA’s resolve to coordinate the conduct of its members with regard to the activity of players’ agents.

(see paras 73-75)

6.     Regulation which constitutes policing of an economic activity and touches on fundamental freedoms falls in principle within
the competence of the public authorities. The very principle of regulation of an economic activity concerning neither the
specific nature of sport nor the freedom of internal organisation of sports associations by a private-law body which has not
been delegated any such power by a public authority cannot from the outset be regarded as compatible with Community law.

Judicial review in the context of an action concerning the lawfulness of a decision taken by the Commission following a procedure
carried out on the basis of a complaint lodged under Regulation No 17, for the treatment of which the Commission could not
apply any powers other than those it holds in this context, is necessarily limited to the rules on competition and the assessment
made by the Commission of the alleged infringements of those rules by the decision complained of. This review can therefore
extend to compliance with other provisions of the Treaty only in so far as any infringement of them reveals a concomitant
breach of the rules on competition. Moreover, it can relate to a possible breach of fundamental principles only in the event
that that breach resulted in an infringement of the rules on competition.

(see paras 76-79)

7.     When the Commission examines a complaint in a competition matter from the point of view of the Community interest, the assessment
of that interest depends on the factual and legal circumstances of each case, which may differ considerably from case to case,
and not on predetermined criteria which must be applied. The number of criteria of assessment the Commission may refer to
should not therefore be limited, nor conversely should it be required to have recourse exclusively to certain criteria.

Second, the Commission, entrusted by Article 85(1) EC with the task of ensuring application of Articles 81 EC and 82 EC, is
responsible for defining and implementing Community competition policy and for that purpose has a discretion as to how it
deals with complaints. That discretion is not unlimited, however, and the Commission must assess in each case the seriousness
and duration of the interferences with competition and the persistence of their consequences.

Furthermore, review by the Community judicature of the exercise by the Commission of the discretion conferred on it in this
regard must not lead it to substitute its assessment of the Community interest for that of the Commission, but focuses on
whether or not the contested decision is based on materially incorrect facts or is vitiated by an error of law, a manifest
error of appraisal or misuse of powers.

(see paras 80-81, 120)

8.     The players’ agent’s licence, required by a rule of the Fédération internationale de football (FIFA) and a condition for carrying
on that occupation, constitutes a barrier to access to that economic activity and therefore necessarily affects competition.

However, in view of the fact that, first, FIFA pursues a dual objective of raising professional and ethical standards for
the occupation of players’ agent in order to protect players, who have a short career; second, competition is not eliminated
by the licence system, which appears to result in a qualitative selection, appropriate for the attainment of the objective
of raising professional standards for the occupation of players’ agent, rather than a quantitative restriction on access thereto;
and, finally, the current conditions governing the exercise of the occupation of players’ agent are characterised by there
being virtually no national rules and no collective organisation for players’ agents, the restrictions stemming from the compulsory
nature of the licence might benefit from an exemption on the basis of Article 81(3) EC.

(see paras 101-104)

9.     Article 82 EC deals with the conduct of one or more economic operators abusing a position of economic strength and thus hindering
the maintenance of effective competition on the relevant market by allowing that operator to behave to an appreciable extent
independently of its competitors, its customers and, ultimately, consumers.

The expression ‘one or more undertakings’ in that article implies that a dominant position may be held by two or more economic
entities legally independent of each other, provided that from an economic point of view they present themselves or act together
on a particular market as a collective entity.

Three cumulative conditions must be met for a finding of collective dominance: first, each member of the dominant oligopoly
must have the ability to know how the other members are behaving in order to monitor whether or not they are adopting the
common policy; second, the situation of tacit coordination must be sustainable over time, that is to say, there must be an
incentive not to depart from the common policy on the market; thirdly, the foreseeable reaction of current and future competitors,
as well as of consumers, must not jeopardise the results expected from the common policy.

(see paras 109-111)

10.   The Fédération internationale de football (FIFA) holds a collective dominant position on the market for players’ agents’ services,
in that its rules governing their activity may, when implemented, result in the undertakings operating on the market in question,
namely the clubs, being so linked as to their conduct on a particular market that they present themselves on that market as
a collective entity vis-à-vis their competitors, their trading partners and consumers.

Because the regulations are binding for national associations that are members of FIFA and the clubs forming them, these bodies
appear to be linked in the long term as to their conduct by rules that they accept and that other actors (players and players’
agents) cannot break on pain of sanctions that may lead to their exclusion from the market, in particular in the case of players’
agents. Such a situation therefore characterises a collective dominant position for clubs on the market for the provision
of players’ agents’ services, since, through the rules to which they adhere, the clubs lay down the conditions under which
the services in question are provided.

The fact that FIFA is not itself an economic operator that buys players’ agents’ services on the market in question and that
its involvement stems from rule-making activity, which it has assumed the power to exercise in respect of the economic activity
of players’ agents, is irrelevant as regards the application of Article 82 EC, since FIFA is the emanation of the national
associations and the clubs, the actual buyers of the services of players’ agents, and it therefore operates on this market
through its members.

(see paras 112-116)


JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber)

26 January 2005 ([\*](#Footnote*))

(Fédération internationale de football association (FIFA) Players’ Agents Regulations – Decision by an association of undertakings – Articles 49 EC, 81 EC and 82 EC – Complaint –No Community interest – Rejection)

In Case T-193/02,

**Laurent Piau,** residing in Nantes (France), represented by M. Fauconnet, lawyer,

applicant,

v

**Commission of the European Communities,** represented by O. Beynet and A. Bouquet, acting as Agents, with an address for service in Luxembourg,

defendant,

supported by

**Fédération internationale de football association (FIFA),** established in Zurich (Switzerland), represented by F. Louis and A. Vallery, lawyers,

intervener,

APPLICATION for annulment of the Commission’s decision of 15 April 2002 rejecting the complaint lodged by the applicant concerning
the Fédération internationale de football association (FIFA) Players’ Agents Regulations,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fourth Chamber),

composed of H. Legal, President, V. Tiili and M. Vilaras, Judges,

Registrar: I. Natsinas, Administrator,

having regard to the written procedure and further to the hearing on 22 April 2004,

gives the following

**Judgment**

**Background to the dispute**

1       The Fédération internationale de football association (FIFA) is an association governed by Swiss law founded on 21 May 1904.
Under its statutes, in the version which entered into force on 7 October 2001, its members are national associations (Article 1),
which are groupings of football clubs classified as amateur or professional, the latter having specific associations known
as ‘professional leagues’. National associations may also form confederations (Article 9). Players in national associations
affiliated to FIFA are either amateur or non-amateur (Article 61).

2       Under its statutes, FIFA’s objects are to promote football, to foster friendly relations among national associations, confederations,
clubs and players, and to draw up and monitor regulations and methods concerning the laws of the game and the practice of
football (Article 2).

3       FIFA’s statutes, regulations and decisions are binding on its members (Article 4). FIFA has legislative, executive and administrative
bodies, namely the Congress, the Executive Committee and the general secretariat, as well as standing and ad hoc committees
(Article 10). FIFA’s ‘judicial’ bodies are the Disciplinary Committee and the Appeal Committee (Article 43). The Arbitration
Tribunal for Football, initially envisaged as the sole mandatory body for the settlement of disputes exceeding a value fixed
by the Congress (Article 63), has not been set up. Under an agreement between FIFA and the International Council of Arbitration
for Sport, the jurisdiction of the Arbitration Tribunal for Football is exercised by the Court of Arbitration for Sport, a
body set up by the International Olympic Committee with its seat in Lausanne (Switzerland), which rules on the basis of FIFA
rules, the Code of Sports-related Arbitration and, additionally, Swiss law. Actions for annulment may be lodged against its
decisions before the Swiss Federal Court.

4       The regulations governing the application of the statutes provide that players’ agents must possess an agent’s licence issued
by FIFA (Article 16) and authorise the Executive Committee to draw up binding rules for agents (Article 17).

5       On 20 May 1994 FIFA adopted the Players’ Agents Regulations, which were amended on 11 December 1995 and entered into force
on 1 January 1996 (‘the original regulations’).

6       The original regulations made the exercise of this occupation subject to the possession of a licence issued by the competent
national association and reserved the occupation for natural persons (Articles 1 and 2). The procedure prior to obtaining
the licence provided for an interview to ascertain the candidate’s knowledge (in particular of law and sport) (Articles 6,
7 and 8). The candidate also had to have regard to certain incompatibilities and moral conditions, such as having no criminal
record (Articles 2, 3 and 4). They also had to deposit a bank guarantee of 200 000 Swiss francs (CHF) (Article 9). Relations
between the agent and the player had to be governed by a contract for maximum period of two years, which was renewable (Article 12).

7       A sanctions mechanism was laid down for agents, players and clubs in the event of infringement of the regulations. Agents
could face a caution, censure or warning, a fine of an unspecified amount, or withdrawal of their licence (Article 14). Players
and clubs could be fined up to CHF 50 000 and CHF 100 000 respectively. Players could also be liable to disciplinary suspensions
(of up to 12 months). Suspension measures or bans on transfers could also be applied to clubs (Articles 16 and 18). A ‘Players’
Status Committee’ was designated as FIFA’s supervisory and decision-making body (Article 20).

8       On 23 March 1998 Mr Piau lodged a complaint with the Commission in which he challenged the original regulations. He alleged,
first of all, that the regulations were contrary to ‘Article [49] et seq. of the [EC] Treaty concerning free competition with
regard to services’, because of the restrictions on access to the occupation imposed by opaque examination procedures and
by the requirement of a guarantee and because of the controls and sanctions provided for. Secondly, he considered that the
regulations were likely to give rise to discrimination between citizens of the Member States. Thirdly, he complained that
the regulations did not include any legal remedies against decisions or applicable sanctions.

9       Previously, on 20 February 1996, Multiplayers International Denmark had lodged a complaint with the Commission challenging
the compatibility of the regulations with Articles 81 EC and 82 EC. The Commission had also been notified of petitions lodged
with the European Parliament by German and French nationals, which were declared admissible by the European Parliament on
29 October 1996 and 9 March 1998 respectively and which also concerned these rules.

10     The Commission initiated a procedure under Regulation No 17 of the Council of 6 February 1962, First Regulation implementing
Articles [81] and [82] of the Treaty (OJ, English Special Edition 1959-1962, p. 87) and sent FIFA a statement of objections
on 19 October 1999. The statement of objections stated that the [original] regulations constituted a decision by an association
of undertakings within the meaning of Article 81 EC and called into question the compatibility with that article of the restrictions
contained in the regulations relating to the licence requirement, the exclusion of legal persons from the award of a licence,
the prohibition on clubs and players using unlicensed agents, the requirement of a bank guarantee and the sanctions.

11     In its reply to the statement of objections, dated 4 January 2000, FIFA disputed that the regulations could be classified
as a decision by an association of undertakings. It justified the restrictions contained in the regulations in the interests
of raising ethical standards and levels of professional qualification and claimed that they could be exempted under Article 81(3)
EC.

12     A hearing was held at the Commission on 24 February 2000 and was attended by the representatives of Mr Piau and of FIFA, as
well as representatives of the international professional players’ trade union, FIFPro, which expressed the interest of players
in the regulation of agents.

13     Following the administrative procedure initiated by the Commission, on 10 December 2000 FIFA adopted new Players’ Agents Regulations,
which entered into force on 1 March 2001 and were amended again on 3 April 2002.

14     The new FIFA regulations (‘the amended regulations’) maintain the obligation, in order to exercise the occupation of players’
agent, which is still reserved for natural persons, to hold a licence issued by the competent national association for an
unlimited period (Articles 1, 2 and 10). The candidate, who must satisfy the requirement of having an ‘impeccable reputation’
(Article 2), must take a written examination (Articles 4 and 5). The examination consists in a multiple-choice test to verify
the candidate’s knowledge of the law and sport (Annex A). The agent must also take out a professional liability insurance
policy or, failing that, deposit a bank guarantee to the amount of CHF 100 000 (Articles 6 and 7).

15     The relations between the agent and the player must be the subject of a written contract for a maximum period of two years,
which may be renewed. The contract must stipulate the agent’s remuneration, which is calculated on the basis of the player’s
basic gross salary and, if the parties cannot reach agreement, is fixed at 5% of the salary. A copy of the contract must be
sent to the national association, whose register of contracts must be made available to FIFA (Article 12). Licensed players’
agents are required, inter alia, to adhere to FIFA’s statutes and regulations and to refrain from approaching a player who
is under contract with a club (Article 14).

16     A system of sanctions against clubs, players and agents is set up. They may all be punished, in the event of failure to comply
with the above rules, by a caution, censure, or warning, or by a fine (Articles 15, 17 and 19). Players’ agents may have their
licence suspended or withdrawn (Article 15). Players may be suspended for up to 12 months (Article 17). Clubs may also be
punished by suspension measures and bans on transfers of at least three months (Article 19). Fines may also be imposed on
players’ agents, players and clubs. For players’ agents, the amount of the fine is not specified, as in the original regulations,
while in the case of players and clubs minimum amounts of CHF 10 000 and CHF 20 000 respectively are now provided for (Articles 15,
17 and 19). All these sanctions are cumulative (Articles 15, 17 and 19). Disputes are dealt with by the competent national
association or the ‘Players’ Status Committee’ (Article 22). Transitional measures allow licences granted under the former
provisions to be validated (Article 23). A code of professional conduct and a standard representation contract are also annexed
to the amended regulations (Annexes B and C).

17     The amendments made on 3 April 2002 state that nationals of the European Union or the European Economic Area (EEA) must make
their application for a licence to the national association of their home country or the country of domicile without any condition
relating to length of residence and that they may take out the required insurance policy in any country of the European Union
or the EEA.

18     On 9 and 10 July 2001 the European Parliament declared that the files opened following the petitions mentioned in paragraph 9
above were closed.

19     On 3 August 2001 the Commission sent Mr Piau a letter under Article 6 of Commission Regulation (EC) No 2842/98 of 22 December 1998
on the hearing of parties in certain proceedings under Articles [81] and [82] of the EC Treaty (OJ 1998 L 354, p. 18). In
that letter, the Commission pointed out that its representation to FIFA had resulted in the elimination of the main restrictive
aspects of the Players’ Agents Regulations and that there was no longer any Community interest in continuing with the procedure.

20     The Commission sent a similar letter to Multiplayers International Denmark on 12 November 2001, to which that complainant
did not reply.

21     In response to the letter of 3 August 2001 mentioned in paragraph 19 above, on 28 September 2001 Mr Piau informed the Commission
that he was maintaining his complaint. He claimed that the infringements of Article 81(1) EC still remained in the amended
regulations with respect to the examination and professional liability insurance and that new restrictions had been introduced
in the form of rules relating to professional conduct, the standard contract and the determination of remuneration. In the
view of the complainant, these restrictions could not be covered by an exemption on the basis of Article 81(3) EC. In addition,
Mr Piau stated that the Commission had not examined the rules in question having regard to Article 82 EC.

22     By a decision of 15 April 2002 (‘the contested decision’), the Commission rejected Mr Piau’s complaint. The Commission stated
that there was no Community interest in continuing with the procedure in so far as the most important restrictive provisions
at issue in the complaint had been repealed, whilst the licence requirement could be justified, the remaining restrictions
could enjoy an exemption under Article 81(3) EC, and Article 82 EC was not applicable in the present case.

**Procedure and forms of order sought by the parties**

23     By an application lodged on 14 June 2002, Mr Piau brought the present action.

24     On 5 November 2002 FIFA applied to intervene in support of the form of order sought by the Commission. By order of the President
of the First Chamber of the Court of First Instance of 5 December 2002, that intervention was allowed.

25     By decision of the Court of First Instance of 2 July 2003, the Judge-Rapporteur was assigned, from 1 October 2003, to the
Fourth Chamber, to which the case was therefore reassigned.

26     By a measure of organisation of procedure notified on 11 March 2004, the Court of First Instance asked the Commission and
FIFA questions about professional liability insurance, remuneration of players’ agents and legal remedies provided for under
the amended regulations, and asked Mr Piau questions regarding the steps he had taken with a view to carrying on the occupation
of players’ agent.

27     FIFA, the Commission and Mr Piau answered the questions asked by the Court by letters received on 1, 2 and 5 April 2004 respectively.

28     The parties presented oral argument and replied to the Court’s questions at the hearing on 22 April 2004.

29     The applicant claims that the Court should:

–       annul the contested decision;

–       order the Commission to pay the costs.

30     The Commission contends that the Court should:

–       dismiss the action;

–       order the applicant to pay the costs.

31     FIFA claims that the Court should:

–       declare the action inadmissible and, in any event, unfounded;

–       order the applicant to pay the costs.

**Admissibility**

*Arguments of the parties*

32     FIFA questions the admissibility of the action. It claims that the applicant does not have a legal interest in bringing proceedings
since he has never taken any official steps with a view to carrying on the occupation of players’ agent and the French law
applicable to his situation is stricter than the FIFA regulations.

33     The Commission states that it did not raise a plea of inadmissibility with regard to the application because it considered
that Mr Piau had links with the football world and that he had wished to carry on the occupation of players’ agent.

34     Mr Piau contends that his action, which was brought against the Commission’s decision rejecting his complaint, is admissible.
He asserts that he has wished to carry on the occupation of players’ agent since 1997 and that there are inconsistencies between
the FIFA rules and the French legislation.

*Findings of the Court*

35     The Commission has not raised a plea of inadmissibility. An application to intervene must be limited to supporting the form
of order sought by one of the parties (Article 40, last paragraph, of the Statute of the Court of Justice, applicable to the
Court of First Instance under Article 53 of that Statute).

36     FIFA is not therefore entitled to raise a plea of inadmissibility that is not relied on by the party in support of whose form
of order it was granted leave to intervene. The Court is not therefore bound to consider the pleas on which it relies in this
regard (Case C‐313/90 *CIRFS and Others* v *Commission* [1993] ECR I‐1125, paragraph 22).

37     However, under Article 113 of the Rules of Procedure, the Court may at any time, of its own motion, consider whether there
exists any absolute bar to proceeding with a case, including any raised by the interveners (Case T-239/94 *EISA* v *Commission* [1997] ECR II-1839, paragraph 26).

38     It is common ground that Mr Piau is the person to whom a Commission decision that definitively closes a procedure initiated
on the basis of Regulation No 17 was addressed and that he duly brought an action against that decision. The refusal to continue
with such a procedure and the rejection of a complaint adversely affect its originator who, according to settled case-law,
should be able to institute proceedings in order to protect his legitimate interests (Case 26/76 *Metro* v *Commission* [1977] ECR 1875, paragraph 13, and Case T-37/92 *BEUC**and**NCC* v *Commission* [1994] ECR II-285, paragraph 36). The Court has also ruled that another undertaking which the Commission has recognised as
having a legitimate interest in submitting comments in a procedure pursuant to Regulation No 17 is entitled to bring proceedings
(*Metro* v *Commission*, paragraphs 6, 7 and 11 to 13).

**Substance**

1.     *The treatment of the complaint*

*Arguments of the parties*

39     Mr Piau claims, first, that the Commission has failed to comply with its obligations in dealing with a complaint lodged under
Article 3 of Regulation No 17. Although FIFA had not notified the original regulations, the Commission had refrained from
taking a position on the alleged infringement and presumed that the regulations were possibly exempt. Its actions are contrary
to the principle of good faith which must govern relations between citizens and the Community and the principle of legal certainty.

40     He submits, second, that the Commission did not conduct an inquiry or state reasons for the contested decision with reference
to Article 82 EC, although his complaint also concerned that article, as can be seen inter alia from the letters of 31 January and
30 March 2001 exchanged between the applicant and the Commission. The investigation did not relate to Article 82 EC, which
was not mentioned in the statement of objections. The Commission therefore harmed Mr Piau’s legitimate expectations by failing
to examine his complaint in this regard.

41     The Commission claims, first, that the failure to notify does not mean that the unnotified measure is illegal under Community
law.

42     Second, the defendant contends that it was not required to conduct an inquiry or to state reasons for its decision with reference
to Article 82 EC, which was not mentioned in the complaint but was relied on belatedly (on 28 September 2001) by the applicant,
as there was nothing to suggest that that provision had been infringed.

43     FIFA maintains that the contested decision did not require a statement of reasons with reference to Article 82 EC, which was
not mentioned in the complaint and was relied on belatedly by the applicant. In any case, the Commission, which could reject
the complaint solely on the ground that there was no Community interest, gave an adequate statement of reasons in the contested
decision with reference to Article 82 EC.

*Findings of the Court*

44     First, as regards the treatment of the complaint under Regulation No 17, it should be pointed out that the Commission has
broad discretion in this area (see, to that effect, Case C‐119/97 P *Ufex and Others* v *Commission* [1999] ECR I‐1341, paragraphs 88 and 89).

45     In the present case, Mr Piau lodged a complaint on 23 March 1998 concerning the FIFA Players’ Agents Regulations, drafted
as a summary outline, which referred to ‘Article [49] et seq. of the [EC] Treaty concerning free competition with regard to
services’, but did not mention Regulation No 17. The Commission, which had received another complaint concerning the same
regulations (see paragraph 9 above), considered that the facts adduced raised certain questions of competition law and considered
Mr Piau’s complaint to have been lodged under Article 3 of Regulation No 17.

46     The Commission then conducted the administrative procedure laid down for infringements in competition matters, conducting
an inquiry, sending a statement of objections to FIFA on 19 October 1999 and holding a hearing of the interested parties on
24 February 2000. It is common ground that this procedure eventually resulted in FIFA adopting amended Players’ Agents Regulations
on 10 December 2000. Since it was satisfied with the amendments made by FIFA to the rules in question, the Commission then
considered that no further steps should be taken in the procedure, and notified Mr Piau of this by sending him a letter on
3 August 2001 under Article 6 of Regulation No 2842/98 and then rejecting his complaint on 15 April 2002.

47     It is apparent that the Commission properly applied, from a procedural point of view, the powers conferred on it by Regulation
No 17, which was applicable at that time, to conduct an inquiry into a complaint in a competition matter, having regard to
its discretion in this area. The Commission did not therefore fail to comply with its obligations in this regard. The fact
that the original regulations had not been notified to the Commission does not affect the lawfulness of the procedure, since
the sole effect of the failure to give notification was to deprive the Commission of the opportunity to take a decision concerning,
in particular, a possible exemption for the regulations under Article 81(3) EC, in the absence of an application by FIFA to
that effect. Lastly, the applicant has not adduced any evidence to show that, in dealing with his complaint, the Commission
failed to act in good faith or breached the principle of legal certainty.

48     Second, as regards the inquiry into the complaint and statement of reasons for the contested decision with reference to Article 82 EC,
it can be seen from the documents before the Court that the complaint lodged on 23 March 1998 did not mention Article 82 EC.
However, Mr Piau did rely on that provision in his letter of 28 September 2001 which stated, in response to the Commission’s
communication under Article 6 of Regulation No 2842/98, that he was maintaining his complaint (see paragraph 21 above). In
that letter, the complainant argued that, in his view, the case had not been investigated with reference to Article 82 EC,
even though FIFA was abusing a dominant position, and that, in a letter of 30 March 2001, the Commission had stated that his
complaint related primarily to Articles 81 EC and 82 EC.

49     The applicant cannot rely on the principle of protection of legitimate expectations with respect to information contained
in the requests for information sent by the Commission to FIFA on 11 November 1998 and 19 July 1999, which envisaged the possibility
of infringements of Articles 81 EC and 82 EC. Such information cannot be equated with precise assurances that may give rise
to reasonable expectations (see, for example, Joined Cases T‐485/93, T‐491/93, T‐494/93 and T‐61/98 *Dreyfus and Others* v *Commission* [2000] ECR II-3659, paragraph 85). Furthermore, subsequently, in the statement of objections of 19 October 1999, the Commission
did not identify any infringements with reference to Article 82 EC, but only with reference to Article 81 EC.

50     The Commission cannot, for its part, claim that the belated mention by the applicant of Article 82 EC in the course of the
administrative procedure relieved it of the obligation to conduct an inquiry and state reasons for the contested decision
in this regard. As long as the administrative procedure had not been concluded and a decision had not been taken on Mr Piau’s
complaint, the Commission could still conduct fresh investigations if new objections, whose relevance it had to assess, were
raised.

51     On the other hand, in so far as, after examining the points of fact and of law relating to the application of Article 82 EC,
the Commission decided that an investigation of the complaint was unwarranted or unnecessary in this regard, it was not required
to pursue the investigation on this point (Case T‐74/92 *Ladbroke* v *Commission* [1995] ECR II‐115, paragraph 60).

52     With regard to its statement of reasons having regard to Article 82 EC, the contested decision states that Mr Piau’s comments
on that provision ‘are vague with regard to the market on which FIFA is said to have a dominant position and the alleged abuse’.
It explains that FIFA is not active on the market for provision of advice [to players] in which players’ agents operate and
concludes that ‘Article 82 EC does not apply in the present case as described by the complainant’. In the circumstances of
the present case, such information satisfies the Commission’s obligation to give a statement of reasons (Case T‐74/92 *Ladbroke* v *Commission*, cited above, paragraph 60).

53     It follows from the above considerations that Mr Piau is not justified in claiming that the Commission failed to comply with
its obligations in dealing with the complaint referred to it. The applicant’s pleas pertaining to that claim must therefore
be rejected.

2.     *Community interest*

*Arguments of the parties*

54     Mr Piau claims that his complaint was of Community interest. The market is ‘cross-border in nature’, the most important restrictive
provisions of the original regulations have not been repealed and the amended regulations cannot be the subject of an exemption
under Article 81(3) EC. The anti-competitive effects will remain, since agents licensed under the original regulations will
retain the market shares that they have acquired. In addition, Article 82 EC is applicable. Lastly, Mr Piau cannot obtain
adequate protection before the national courts.

55     He submits, first, that the Commission made an error of assessment with regard to the FIFA Players’ Agents Regulations. The
obligation, on pain of sanctions, to comply with the FIFA regulations constitutes an obstacle to ‘free competition with regard
to services’ and freedom of establishment and prevents any unlicensed players’ agents from gaining market access. The provision
contained in the amended regulations relating to remuneration of players’ agents amounts to fixing of an imposed price, which
restricts competition. The requirement of a standard contract infringes the principle of freedom of contract and the obligation
imposed on the national association to send a copy to FIFA does not guarantee the protection of personal data. The code of
professional conduct annexed to the regulations leaves scope for arbitrary action. The amended regulations are not compatible
with the French legislation governing the occupation; however, the French football federation had given preference to the
regulations and awarded licences in contravention of national legislation. The amended regulations also prohibit recourse
to the ordinary courts.

56     Second, Mr Piau claims that the amended regulations cannot enjoy an exemption on the basis of Article 81(3) EC, since none
of the conditions set out in that provision is satisfied. The restrictions are neither essential, appropriate nor proportionate.
On the contrary, those regulations eliminate any competition, since FIFA alone is authorised to grant a licence. He submits
that, behind the declared objective of protecting players and raising ethical standards in the occupation of players’ agent,
FIFA’s real intention is to take complete control of the occupation of players’ agent in breach of the freedom to carry on
a business and the principle of non-discrimination. Mr Piau also argues that the ‘specific nature of sport’, which makes it
possible to derogate from Community competition law, cannot be relied on in the present case, since the activity in question
is not linked directly to sport.

57     Third, Mr Piau submits that FIFA holds a dominant position on the ‘football market’ and is abusing its dominant position on
the related market of services provided by players’ agents. FIFA is an association of undertakings and the amended regulations
constitute a decision by an association of undertakings. Representing the interests of all buyers, FIFA is acting as a monopsony,
a single buyer imposing its conditions on sellers. The abuses of the dominant position are the result of the binding provisions
of the regulations. Licensed players’ agents also hold, jointly, a collective dominant position which they are abusing through
the FIFA rules. The market in the services provided by players’ agents is reserved for members of the association of undertakings
and unlicensed agents are prohibited from having access.

58     Fourth, Mr Piau submits that, by making access to the occupation of players’ agent subject to the possession of a licence,
the amended regulations are an obstacle to freedom to provide services and freedom to carry on a business. He argues that
FIFA does not have any legitimacy to lay down rules governing an economic activity and that the Commission thus implicitly
delegated it a power to regulate an activity of providing services in contravention of the competences conferred on the Member
States.

59     The Commission submits, principally, that there was no Community interest to justify continuing with the procedure, that the
complaint was rightly rejected on that ground, and that Mr Piau’s action is consequently unfounded. The ‘cross-border nature’
of the market does not necessarily mean that there is a Community interest. The most important restrictions had been removed
in the amended regulations. Any persistent effects of the original regulations can be regarded as transitional measures guaranteeing
the acquired rights of agents licensed under the old system. The fact that a complaint challenges alleged abuses of a dominant
position does not in itself allow the conclusion that there is a Community interest. Contrary to his assertions, the applicant
is not prevented from referring the matter to an ordinary law court.

60     In the alternative, the Commission submits, first, that the applicant’s arguments, based on provisions not falling within
the scope of competition law, are inadmissible or unfounded, since it does not derive from Regulation No 17, or from any other
legal basis, the power to act with regard to an association of undertakings on bases other than compliance with rules of Community
competition law. The Commission also submits that Community law accepts the recognition of acquired rights and that the applicant’s
fears over protection of personal data are unfounded. It argues that, while the organisation of the occupation of players’
agent has not been harmonised at Community level, the FIFA regulations, which lay down uniform conditions for access at world
level, are not liable to restrict the free movement of players’ agents.

61     Second, the Commission submits that it did not make an error of assessment with regard to the rules in question, which seek
to protect players and to ensure that agents are qualified. In the absence of an internal organisation of the occupation,
the licence system imposes justified, essential and proportionate qualitative restrictions. In addition, the main restrictions
have been removed, in particular concerning conditions of access to the occupation and examination procedures. The amended
regulations are proportionate to the objectives set out and take into account the specific nature of sport. The provision
relating to agents’ remuneration merely lays down a subsidiary rule, allowing the parties a large degree of freedom. The standard
contract does not hamper the parties’ freedom and the limitation of its duration to two years promotes competition. The alleged
prohibition on having recourse to ordinary law courts is not proven to exist. The rules of professional conduct, which can
be justified by the general interest, are proportionate and compatible with Community competition law. Lastly, the binding
nature of the regulations and the sanctions provided for therein are inherent in the existence of rules.

62     Third, the Commission submits that the amended regulations satisfy the conditions for an exemption laid down by Article 81(3) EC.
The restrictions entailed, which are intended to raise ethical and professional standards, are proportionate. Competition
is not eliminated. The very existence of regulations promotes a better operation of the market and therefore contributes to
economic progress.

63     Fourth, the Commission submits that Article 82 EC, which concerns only economic activities, is not applicable to the present
case, which relates to a purely regulatory activity. FIFA cannot be described as an ‘economic power’ or a monopsony and no
abuse has been shown to exist on a market related to the ‘football market’. FIFA does not represent the economic interests
of clubs and players. Licensed players’ agents are a fairly scattered occupation, without any structural links, and do not
therefore abuse a collective dominant position. On the other hand, the Commission submits that FIFA is an association of undertakings
and that the regulations at issue constitute a decision by an association of undertakings.

64     FIFA submits, first, that the Commission was right to reject Mr Piau’s complaint on grounds of lack of Community interest.
The restrictive provisions retained in the amended regulations have a qualitative purpose. They do not include any restrictions
prohibited by Article 81(1) EC and are justified under Article 81(3) EC. The anti-competitive effects that allegedly persist
do not result from the rules in question, but from the activity of agents. The ‘cross-border nature’ of the market has no
bearing on the likely Community interest of a case.

65     Second, FIFA submits that the amended regulations cannot be classified as a decision by an association of undertakings, since
professional clubs, which may be regarded as undertakings, form only a minority of the members of the national associations,
which are the members of the international organisation. The regulations adopted by FIFA are not therefore the expression
of the will of professional clubs. The amended regulations do not contain any considerable restrictions of competition. The
procedures for obtaining a licence are now satisfactory. Professional liability insurance, whose amount is determined objectively,
is an appropriate means to settle disputes. The provisions relating to agents’ remuneration are not comparable with a price-fixing
mechanism. The standard contract contains conventional stipulations and does not in any way violate privacy. The rules of
professional conduct, the sanctions mechanism and the dispute settlement system are not contrary to Article 81 EC.

66     Third, FIFA submits that the amended regulations could have been the subject of an exemption under Article 81(3) EC. Those
rules are necessary in the absence of organisation of the occupation and of national legislation and because of the global
dimension of football. They raise professional and ethical standards for the occupation of players’ agent, the increasing
number of whom shows that the rules in question are not restrictive.

67     Fourth, FIFA submits that Article 82 EC is not applicable and that it has not abused a dominant position. It states that it
is not an association of undertakings and argues that, in exercising its regulatory power, which is at issue in this case,
it does not carry on economic activities. It argues that the applicant never mentioned the ‘football market’ in the course
of the administrative procedure and that the fact that it exercises a regulatory power over economic actors in a certain market
does not mean that it is active on that market or, a fortiori, that it holds a dominant position. Furthermore, the market
for the provision of advice at issue in the present case is not connected with any market where FIFA is active. Its situation
cannot be classified as a monopsony either, since FIFA does not represent either clubs or players in their relations with
agents. Similarly, licensed agents do not exercise a collective dominant position which they abuse through the FIFA rules.

*Findings of the Court*

 The nature of the FIFA Players’ Agents Regulations

68     Without classifying on the basis of Community law either the nature of the Players’ Agents Regulations or FIFA as the author
of those regulations, in the contested decision the Commission examined Mr Piau’s complaint with reference to the Community
rules on competition, in particular Article 81 EC. That provision and the powers conferred on the Commission to ensure compliance
concern decisions, agreements or practices on the part of undertakings or associations of undertakings, since Community law
applies only in so far as the acts or conduct in question and the authors of such acts or conduct fall within the scope of
that provision. In the present proceedings, the Commission has pointed out that, in its opinion, FIFA constituted an association
of undertakings and the regulations at issue were a decision by an association of undertakings, thereby confirming the view
it took in the statement of objections, a view shared by Mr Piau, but contested by FIFA.

69     As regards, first, the concept of an association of undertakings, and without it being necessary to rule on the admissibility
of the arguments put forward by an intervener which go against the claims made by the party in support of which it is intervening,
it is common ground that FIFA’s members are national associations, which are groupings of football clubs for which the practice
of football is an economic activity. These football clubs are therefore undertakings within the meaning of Article 81 EC and
the national associations grouping them together are associations of undertakings within the meaning of that provision.

70     The fact that the national associations are groupings of ‘amateur’ clubs, alongside ‘professional’ clubs, is not capable of
calling that assessment into question. In this regard, it should be noted that the mere fact that a sports association or
federation unilaterally classifies sportsmen or clubs as ‘amateur’ does not in itself mean that they do not engage in economic
activities within the meaning of Article 2 EC (see, to that effect, Joined Cases C‐51/96 and C‐191/97 *Deliège* [2000] ECR I‐2549, paragraph 46).

71     Furthermore, the national associations, which are required, under FIFA’s statutes, to participate in competitions organised
by it, must pay back to it a percentage of the gross receipts for each international match and are recognised, by those statutes,
with FIFA, as being holders of exclusive broadcasting and transmission rights for the sporting events in question, also carry
on an economic activity in this regard (see Case T‐46/92 *Scottish Football* v *Commission* [1994] ECR II‐1039). They therefore also constitute undertakings within the meaning of Article 81 EC.

72     Since the national associations constitute associations of undertakings and also, by virtue of the economic activities that
they pursue, undertakings, FIFA, an association grouping together national associations, also constitutes an association of
undertakings within the meaning of Article 81 EC. That provision applies to associations in so far as their own activities
or those of the undertakings belonging to them are calculated to produce the results to which it refers (Case 71/74 *Frubo* v *Commission* [1975] ECR 563, paragraph 30). The legal framework within which decisions are taken by undertakings and the classification
given to that framework by the various national legal systems are irrelevant as far as the applicability of the Community
rules on competition is concerned (Case 123/83 *BNIC* [1985] ECR 391, paragraph 17).

73     As regards, second, the concept of a decision by an association of undertakings, it is apparent from the documents before
the Court that the purpose of the occupation of players’ agent, under the very wording of the amended regulations, is ‘for
a fee, on a regular basis [to introduce] a player to a club with a view to employment or [to introduce] two clubs to one another
with a view to concluding a transfer contract’. This is therefore an economic activity involving the provision of services,
which does not fall within the scope of the specific nature of sport, as defined by the case-law (Case 13/76 *Donà* [1976] ECR 1333, paragraphs 14 and 15, Case C-415/93 *Bosman* [1995] ECR I‐4921, paragraph 127, *Deliège*, paragraphs 64 and 69, and Case C‐176/96 *Lehtonen**and**Castors Braine* [2000] ECR I‐2681, paragraphs 53 to 60).

74     On the one hand, the Players’ Agents Regulations were adopted by FIFA of its own authority and not on the basis of rule-making
powers conferred on it by public authorities in connection with a recognised task in the general interest concerning sporting
activity (see, by analogy, Case C‐309/99 *Wouters and Others* [2002] ECR I‐1577, paragraphs 68 and 69). Those regulations do not fall within the scope of the freedom of internal organisation
enjoyed by sports associations either (*Bosman*, paragraph 81, and *Deliège*, paragraph 47).

75     On the other hand, since they are binding on national associations that are members of FIFA, which are required to draw up
similar rules that are subsequently approved by FIFA, and on clubs, players and players’ agents, those regulations are the
reflection of FIFA’s resolve to coordinate the conduct of its members with regard to the activity of players’ agents. They
therefore constitute a decision by an association of undertakings within the meaning of Article 81(1) EC (Case 45/85 *Verband der Sachversicherer* v *Commission* [1987] ECR 405, paragraphs 29 to 32, and *Wouters and Others*, paragraph 71), which must comply with the Community rules on competition, where such a decision has effects in the Community.

76     With regard to FIFA’s legitimacy, contested by the applicant, to enact such rules, which do not have a sport-related object,
but regulate an economic activity that is peripheral to the sporting activity in question and touch on fundamental freedoms,
the rule-making power claimed by a private organisation like FIFA, whose main statutory purpose is to promote football (see
paragraph 2 above), is indeed open to question, in the light of the principles common to the Member States on which the European
Union is founded.

77     The very principle of regulation of an economic activity concerning neither the specific nature of sport nor the freedom of
internal organisation of sports associations by a private-law body, like FIFA, which has not been delegated any such power
by a public authority, cannot from the outset be regarded as compatible with Community law, in particular with regard to respect
for civil and economic liberties.

78     In principle, such regulation, which constitutes policing of an economic activity and touches on fundamental freedoms, falls
within the competence of the public authorities. Nevertheless, in the present dispute, the rule-making power exercised by
FIFA, in the almost complete absence of national rules, can be examined only in so far as it affects the rules on competition,
in the light of which the lawfulness of the contested decision must be assessed, while considerations relating to the legal
basis that allows FIFA to carry on regulatory activity, however important they may be, are not the subject of judicial review
in this case.

79     The present action concerns the lawfulness of a decision taken by the Commission following a procedure carried out on the
basis of a complaint lodged under Regulation No 17, for the treatment of which the Commission could not apply any powers other
than those it holds in this context. Judicial review is necessarily limited to the rules on competition and the assessment
made by the Commission of the alleged infringements of those rules by the FIFA regulations. This review can therefore extend
to compliance with other provisions of the Treaty only in so far as any infringement of them reveals a concomitant breach
of the rules on competition. Moreover, it can relate to a possible breach of fundamental principles only in the event that
that breach resulted in an infringement of the rules on competition.

 Assessment of the Community interest of the complaint

80     The contested decision rejects Mr Piau’s complaint on grounds of lack of Community interest in continuing with the procedure.
It should be pointed out, first, that the assessment of the Community interest raised by a complaint in competition matters
depends on the factual and legal circumstances of each case, which may differ considerably from case to case, and not on predetermined
criteria which must be applied (see, to that effect, *Ufex and Others* v *Commission*, paragraphs 79 and 80). Second, the Commission, entrusted by Article 85(1) EC with the task of ensuring application of Articles 81 EC
and 82 EC, is responsible for defining and implementing Community competition policy and for that purpose has a discretion
as to how it deals with complaints. That discretion is not unlimited, however, and the Commission must assess in each case
the seriousness and duration of the interferences with competition and the persistence of their consequences (see, to that
effect, *Ufex and Others* v *Commission*, paragraphs 88, 89, 93 and 95).

81     Furthermore, review by the Community judicature of the exercise, by the Commission, of the discretion conferred on it in this
regard must not lead it to substitute its assessment of the Community interest for that of the Commission but focuses on whether
or not the contested decision is based on materially incorrect facts, or is vitiated by an error of law, a manifest error
of appraisal or misuse of powers (Case T‐115/99 *SEP* v *Commission* [2001] ECR II‐691, paragraph 34).

82     In the present case, three kinds of considerations form the basis for the Commission’s assessment regarding lack of Community
interest, namely the repeal of the most restrictive provisions contained in the original regulations, the eligibility of the
amended regulations for an exemption under Article 81(3) EC, and the inapplicability of Article 82 EC.

–       Repeal of the most restrictive provisions contained in the original regulations

83     The contested decision starts by noting that the most important restrictive provisions that were part of the regulations adopted
on 20 May 1994 were deleted in the regulations adopted on 20 December 2000. It examines the provisions of the FIFA regulations
under five headings, relating to the examination, insurance, the code of professional conduct, the setting of remuneration
for players’ agents and the standard contract.

84     First, as regards the examination, the Commission states in the contested decision that candidates must now take a written
examination, consisting in a multiple-choice test, the procedures and dates for which, as set out in the annex to the amended
regulations, are uniform throughout the world. It notes that a two-stage appeal system is now envisaged and that the two-year
residence requirement for European Union nationals was removed by an amendment to the regulations on 3 April 2002. The contested
decision states that the requirement of an ‘impeccable reputation’ for obtaining the licence, which must be interpreted in
accordance with national laws, would be construed in France, where Mr Piau is resident, as having no criminal conviction.
In the final analysis, the Commission did not consider the applicant’s claims of arbitrariness to be well founded.

85     Second, in the contested decision, the Commission notes that a professional liability insurance policy, required of everyone,
whose base relates to the objective criterion of the turnover of the players’ agent, replaced the requirement of lodging a
guarantee and that it can be taken out with various insurance companies in all the countries of the Union. On this point,
in response to the Court’s questions mentioned in paragraph 26 above, FIFA produced examples of professional liability insurance
contracts offered to players’ agents by 12 insurance companies within the European Union or the EEA. The contested decision
also points out that the required guarantee, which must cover all risks liable to result from the representation activity,
does not appear to be disproportionate to the risks covered, for example, by professional insurance in the liberal professions.

86     Third, as far as the code of professional conduct is concerned, in the contested decision the Commission considers that the
elementary principles of good professional conduct set out in that code, annexed to the amended regulations, which refer in
particular to rules relating to professional conscientiousness, truthfulness, fairness, objectivity, transparency, sincerity,
justice and equity, do not impose a disproportionate obligation on players’ agents.

87     Fourth, as regards setting the remuneration of players’ agents, in the contested decision the Commission examined Article 12
of the regulations, which provides that the agent’s salary is calculated on the basis of the player’s basic gross salary and
will be 5% of the salary if the parties cannot reach agreement. It considers that this provision refers to an objective, transparent
criterion (the player’s basic gross salary) and is merely a (subsidiary) mechanism for the settlement of disputes.

88     Fifth, the contested decision states that Mr Piau’s complaint concerning the breach of privacy stemming from the fact that
a copy of the contract signed between a player and an agent is sent to the relevant national association for registration
is not a problem capable of being caught by the Community rules on competition.

89     The contested decision does not therefore show that the principles stemming from the case-law referred to in paragraphs 80
and 81 above regarding the extent of its obligations were breached by the Commission, which closely examined the evidence
put forward by the applicant.

90     The Commission did not make a manifest error of assessment with regard to the provisions of the amended regulations examined
in paragraphs 84 to 88 above by considering that the examination offered satisfactory guarantees of objectivity and transparency,
that the professional liability insurance obligation did not constitute a disproportionate requirement and, with regard to
the provisions of the regulations relating to remuneration for players’ agents, by implicitly excluding a classification as
the fixing of imposed prices from the point of view of competition law (Joined Cases T‐213/95 and T‐18/96 *SCK and FNK* v *Commission* [1997] ECR II‐1739, paragraphs 158, 159 and 161 to 164).

91     The arguments outlined by Mr Piau in this case relating to the content of the amended regulations, which concern the obligation
under the regulations to comply with FIFA rules, the content of the standard contract, the sanctions system and legal remedies,
do not call that assessment into question.

92     First, the obligation imposed on players’ agents to comply with the FIFA rules concerning, among other things, transfers of
players does not appear in itself to be contrary to the rules on competition, as the FIFA rules on transfers of players, which
were not the object of Mr Piau’s complaint, cannot be examined in the present dispute, since they fall outside its scope.
When asked about this point at the hearing, the applicant did not explain, any more than he did in his written pleadings,
how the obligation to comply with FIFA rules might affect competition.

93     Second, the provisions on the content of the contract between the agent and the player, under which the contract, in writing,
must set out the criteria and details of the agent’s remuneration and cannot have a term of longer than two years, although
that term is renewable, do not reveal any interference with competition. The limitation of the duration of contracts to two
years, which does not preclude the renewal of the commitment, seems likely to encourage the fluidity of the market and, as
a result, competition. In fact, this relatively limited framing of contractual relations seems likely to help to make the
parties’ financial and legal relations more secure, without jeopardising competition.

94     Third, the sanctions system, summarised in paragraph 16 above, in so far as it can affect the rules on competition, does not
appear to be open to criticism. The amended regulations provide that the sanctions applicable to agents, players and clubs
are caution, censure, warning, suspension or withdrawal of licence for agents, suspension of up to 12 months for players and
suspension measures or bans on transfers for at least three months for clubs, which cannot be regarded as manifestly excessive
for a system of professional sanctions. Furthermore, the amounts of the fines for players and clubs were reduced from those
in the original regulations. In addition, Mr Piau has not produced any evidence to show that this mechanism is applied in
an arbitrary and discriminatory manner, thereby interfering with competition.

95     Fourth, with respect to legal remedies available in the ordinary courts, and assuming that the provisions of the amended regulations
may have an effect on the rules on competition in this regard, it is apparent from the answers given by FIFA and by the Commission
to the questions asked by the Court (see paragraph 26 above) that, irrespective of the system of remedies against decisions
by national associations or by the Players’ Status Committee, which is competent in matters involving players’ agents, before
the Court of Arbitration for Sport, interested parties can always have recourse to the ordinary courts, in particular in order
to assert their rights under national law or under Community law, and actions for annulment can also be brought before the
Swiss Federal Court against decisions by the Court of Arbitration for Sport. The applicant, who, at the hearing, reported
difficulties and slow progress affecting national court proceedings, has not however established that he was deprived of all
remedies before the ordinary courts or, a fortiori, that competition was thereby affected.

96     It follows from the above considerations that the pleas in law and arguments put forward by Mr Piau based on competition law
do not call into question the conclusion that the Commission was entitled to consider that the most restrictive provisions
of the regulations in question had been repealed. The applicant’s arguments in this regard must therefore be rejected.

97     The pleas in law and arguments put forward by the applicant which are not related to competition law should also be rejected,
since they do not indicate any infringements in this regard. Mr Piau has not shown that his pleas in law and arguments regarding
the breach of contractual freedom, the incompatibility of the FIFA regulations with the French legislation and the interference
with the protection of personal data disclose an infringement of the rules on competition. His pleas in law and arguments,
which are not, moreover, accompanied by corroborative evidence, must therefore be rejected as irrelevant in a competition
matter.

98     In addition, the argument put forward by Mr Piau that, since agents licensed under the original regulations retained their
licences, anti-competitive effects persisted cannot be accepted. On the one hand, the applicant does not establish that this
fact would in itself give rise to anti-competitive effects. On the other hand, it is contrary to the principle of legal certainty
to call into question legal positions which are not shown to have been unlawfully acquired (see, by analogy, Case T‐498/93
*Dornonville de la Cour* v *Commission* [1994] ECR-SC I‐A‐257 and II‐813, paragraphs 46 to 49 and 58). Moreover, as the Court has held with regard to transitional
measures relating to recognition of diplomas – this case-law being applicable to the present case – it is permitted to preserve
acquired rights in similar cases (Case C‐447/93 *Dreessen* [1994] ECR I‐4087, paragraph 10, and Joined Cases C‐69/96 to C‐79/96 *Garofalo and Others* [1997] ECR I‐5603, paragraphs 29 to 33).

99     In the light of all the foregoing considerations, the Commission did not commit a manifest error in its assessment of the
rules in question or with regard to the alleged persistence of the anti-competitive effects of the original regulations, the
reason for Mr Piau’s complaint. The applicant is not therefore justified in claiming that the most restrictive provisions
of the original regulations were not abolished and that anti-competitive effects persisted because those provisions were retained
in the amended regulations.

–       Eligibility of the provisions of the amended regulations for an exemption under Article 81(3) EC

100   In the contested decision, the Commission considers that the compulsory nature of the licence might be justified and that
the amended regulations could be eligible for an exemption under Article 81(3) EC. It explains that the licence system, which
imposes restrictions that are more qualitative than quantitative, seeks to protect players and clubs and takes into consideration,
in particular, the risks incurred by players, who have short careers, in the event of poorly negotiated transfers. It considers
that, since there is at present no organisation of the occupation of players’ agent and no generalised national rules, the
restriction inherent in the licence system is proportionate and essential.

101   The actual principle of the licence, which is required by FIFA and is a condition for carrying on the occupation of players’
agent, constitutes a barrier to access to that economic activity and therefore necessarily affects competition. It can therefore
be accepted only in so far as the conditions set out in Article 81(3) EC are satisfied, with the result that the amended regulations
might enjoy an exemption on the basis of this provision if it were established that they contribute to promoting economic
progress, allow consumers a fair share of the resulting benefit, do not impose restrictions which are not indispensable to
the attainment of these objectives, and do not eliminate competition.

102   Various legal and factual circumstances have been relied on to justify the adoption of the regulations and the actual principle
of the compulsory licence, which lies at the heart of the mechanism in question. It seems that, first of all, within the Community,
France alone has adopted rules governing the occupation of sports agent. Furthermore, it is not contested that, collectively,
players’ agents do not, at present, constitute a profession with its own internal organisation. It is not contested either
that certain practices on the part of players’ agents could, in the past, have harmed players and clubs, financially and professionally.
FIFA explained that, in laying down the rules in question, it was pursuing a dual objective of raising professional and ethical
standards for the occupation of players’ agent in order to protect players, who have a short career.

103   Contrary to the claims made by the applicant, competition is not eliminated by the licence system. That system appears to
result in a qualitative selection, appropriate for the attainment of the objective of raising professional standards for the
occupation of players’ agent, rather than a quantitative restriction on access to that occupation. On the contrary, the quantitative
opening up of this occupation is corroborated by statistics communicated by FIFA at the hearing. FIFA stated, without being
contradicted, that while it recorded 214 players’ agents in 1996, when the original regulations entered into force, it estimated
that there were 1 500 at the beginning of 2003 and that 300 candidates had passed the examination at sessions held in March
and September of that year.

104   In view of the circumstances set out in paragraphs 102 and 103 above and the current conditions governing the exercise of
the occupation of players’ agent, where there are virtually no national rules and no collective organisation for players’
agents, the Commission did not commit a manifest error of assessment by considering that the restrictions stemming from the
compulsory nature of the licence might benefit from an exemption on the basis of Article 81(3) EC, and, moreover, by rightly
reserving the right to review the rules in question. The arguments put forward by Mr Piau in this regard must therefore be
rejected.

105   Similarly, the applicant’s argument that the ‘specific nature of sport’ may not be relied on to justify a derogation from
the rules on competition must be rejected as irrelevant. The contested decision is not based on such an exception and envisages
the exercise of the occupation of players’ agent as an economic activity, without claiming that it should be accepted as falling
within the scope of the specific nature of sport, which in fact it does not.

106   Mr Piau’s arguments relating to the breaches of freedom to conduct business and freedom to provide services should also be
rejected, since the applicant has not shown that they disclose a concomitant infringement of the rules on competition that
precludes an exemption for the amended regulations on the basis of Article 81(3) EC.

–       Inapplicability of Article 82 EC

107   The contested decision states that Article 82 EC does not apply in the present case, as described by the applicant, since
FIFA is not active on the market for the provision of advice to players.

108   Article 82 EC prohibits any abuse by one or more undertakings of a dominant position within the common market or in a substantial
part of it.

109   That provision deals with the conduct of one or more economic operators abusing a position of economic strength and thus hindering
the maintenance of effective competition on the relevant market by allowing that operator to behave to an appreciable extent
independently of its competitors, its customers and, ultimately, consumers (Joined Cases C‐395/96 P and C‐396/96 P *Compagnie maritime belge transports and Others* v *Commission* [2000] ECR I‐1365, paragraph 34).

110   The expression ‘one or more undertakings’ in Article 82 EC implies that a dominant position may be held by two or more economic
entities legally independent of each other, provided that from an economic point of view they present themselves or act together
on a particular market as a collective entity (*Compagnie maritime belge transports and Others* v *Commission*, paragraph 36).

111   Three cumulative conditions must be met for a finding of collective dominance: first, each member of the dominant oligopoly
must have the ability to know how the other members are behaving in order to monitor whether or not they are adopting the
common policy; second, the situation of tacit coordination must be sustainable over time, that is to say, there must be an
incentive not to depart from the common policy on the market; thirdly, the foreseeable reaction of current and future competitors,
as well as of consumers, must not jeopardise the results expected from the common policy (Case T‐342/99 *Airtours* v *Commission* [2002] ECR II‐2585, paragraph 62, and Case T‐374/00 *Verband der freien Rohrwerke and Others* v *Commission* [2003] ECR II-0000, paragraph 121).

112   In the present case, the market affected by the rules in question is a market for the provision of services where the buyers
are players and clubs and the sellers are agents. In this market FIFA can be regarded as acting on behalf of football clubs
since, as has already been stated (see paragraphs 69 to 72 above), it constitutes an emanation of those clubs as a second-level
association of undertakings formed by the clubs.

113   A decision like the FIFA Players’ Agents Regulations may, where it is implemented, result in the undertakings operating on
the market in question, namely the clubs, being so linked as to their conduct on a particular market that they present themselves
on that market as a collective entity vis-à-vis their competitors, their trading partners and consumers (*Compagnie maritime belge transports and Others* v *Commission*, paragraph 44).

114   Because the regulations are binding for national associations that are members of FIFA and the clubs forming them, these bodies
appear to be linked in the long term as to their conduct by rules that they accept and that other actors (players and players’
agents) cannot break on pain of sanctions that may lead to their exclusion from the market, in particular in the case of players’
agents. Within the meaning of the case-law cited in paragraphs 110 and 111 above, such a situation therefore characterises
a collective dominant position for clubs on the market for the provision of players’ agents’ services, since, through the
rules to which they adhere, the clubs lay down the conditions under which the services in question are provided.

115   It seems unrealistic to claim that FIFA, which is recognised as holding supervisory powers over the sport-related activity
of football and connected economic activities, such as the activity of players’ agents in the present case, does not hold
a collective dominant position on the market for players’ agents’ services on the ground that is not an actor on that market.

116   The fact that FIFA is not itself an economic operator that buys players’ agents’ services on the market in question and that
its involvement stems from rule-making activity, which it has assumed the power to exercise in respect of the economic activity
of players’ agents, is irrelevant as regards the application of Article 82 EC, since FIFA is the emanation of the national
associations and the clubs, the actual buyers of the services of players’ agents, and it therefore operates on this market
through its members.

117   As regards abuse of the alleged dominant position, however, it follows from the above considerations regarding the amended
regulations and the possible exemption under Article 81(3) EC that such an abuse has not been established. It has been found
that those regulations did not impose quantitative restrictions on access to the occupation of players’ agent that could be
detrimental to competition, but qualitative restrictions that may be justified in the present circumstances. The abuses of
the dominant position that, according to the applicant, stem from the regulations are not therefore established and his arguments
in this regard must be rejected.

118   Lastly, Mr Piau’s argument that licensed players’ agents are abusing their collective dominant position within the meaning
of Article 82 EC must also be rejected in the absence of structural links between these agents, the existence of which Mr Piau
has failed to establish. The holding of the same licence, the use of the same standard contract and the fact that agents’
remuneration is determined on the basis of the same criteria do not prove the existence of a dominant position for licensed
players’ agents, and the applicant does not show that the parties concerned adopt an identical approach or that they implicitly
divide up the market.

119   Consequently, although the Commission wrongly considered that FIFA did not hold a dominant position on the market for players’
agents’ services, the other findings contained in the contested decision, namely that the most restrictive provisions of the
regulations had been deleted and that the licence system could enjoy an exemption decision under Article 81(3) EC, would accordingly
lead to the conclusion that there was no infringement under Article 82 EC and to the rejection of the applicant’s arguments
in this regard. Therefore, despite the error in law made by the Commission in taking the view that Article 82 EC was not applicable,
its application could not, in any event, have resulted in a finding of an abuse of a dominant position based on the other
findings that had rightly been made from the examination of the regulations. Thus, the lawfulness of the rejection of the
complaint on the ground of lack of Community interest in continuing with the procedure is not affected.

120   In the light of the foregoing considerations, the Commission did not commit a manifest error of assessment in deciding to
reject Mr Piau’s complaint on the ground of lack of Community interest in continuing with the procedure. The ‘cross-border
nature’ of the market, which is not disputed, is irrelevant in this regard, since this fact alone does not confer a Community
interest on a complaint. In view of the fact that the assessment of the Community interest raised by a complaint depends on
the circumstances of each case, the number of criteria of assessment the Commission may refer to should not be limited, nor
conversely should it be required to have recourse exclusively to certain criteria (*Ufex and Others* v *Commission*, paragraphs 79 and 80).

121   The action brought by Mr Piau must therefore be dismissed.

**Costs**

122   Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been
applied for in the successful party’s pleadings.

123   Since the applicant has been unsuccessful and the Commission has applied for costs, the applicant must be ordered to bear
his own costs and pay those incurred by the Commission.

124   Under the third subparagraph of Article 87(4) of the Rules of Procedure, the Court may order an intervener other than the
Member States and the institutions to bear its own costs.

125   In the circumstances of the present case, FIFA must be ordered to bear its own costs in connection with its intervention.

On those grounds,

THE COURT OF FIRST INSTANCE (Fourth Chamber)

hereby:

1.      **Dismisses the application;**

2.      **Orders the applicant to bear his own costs and pay those incurred by the Commission;**

3.      **Orders the Fédération internationale de football association to bear its own costs.**

| | | |
| --- | --- | --- |
| Legal | Tiili | Vilaras |

Delivered in open court in Luxembourg on 26 January 2005.

| | | |
| --- | --- | --- |
| H. Jung | | H. Legal |

| | | |
| --- | --- | --- |
| Registrar | | President |

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[\*](#Footref*) Language of the case: French.