Opinion of the Advocate General — ECLI:EU:C:2023:676
Date: 2023-09-14
Language of the case: German
Subject matter: Principles, objectives and tasks of the Treaties;Data protection
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Austria

Translation C-115/22 – 1 
Case C-115/22 
Request for a preliminary ruling 
Date lodged: 
17 February 2022 
Referring court: 
Unabhängige Schiedskommission Wien (Austria) 
Date of the decision to refer: 
21 December 2021 
Applicant: 
E.N. 
      
 
UNABHÄNGIGE SCHIEDSKOMMISSION 
(INDEPENDENT ARBITRATION COMMITTEE) 
[…] 
ORDER 
In accordance with the Anti-Doping-Bundesgesetz 2021 (2021 Federal law on 
anti-doping; ‘the 2021 ADBG’), the Unabhängige Schiedskommission 
(Independent Arbitration Committee; ‘the USK’), in the proceedings relating to 
the request made by E.N., […] to refrain from informing the general public of the 
decision of the Arbitration Committee finding a specific doping violation on the 
part of the applicant and therefore disqualifying and banning the applicant from all 
(national and international) competitions for a period of four years, under 
Paragraph 23(14) of the 2021 ADBG, is referring […] the following questions to 
the Court of Justice of the European Union (‘the Court’) for a preliminary ruling 
pursuant to Article 267 TFEU: 
I. Does the information that a certain person has committed a specific 
doping violation, as a result of which that person has been banned 
from taking part in (national and international) competitions, constitute 
‘data concerning health’ within the meaning of Article 9 of Regulation 
(EU) 2016/679 of the European Parliament and of the Council of 
27 April 2016 on the protection of natural persons with regard to the 
processing of personal data and on the free movement of such data, 
EN 
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and repealing Directive 95/46/EC (‘the General Data Protection 
Regulation’)? 
II. Does the General Data Protection Regulation – particularly in the light 
of the second subparagraph of Article 6(3) thereof – preclude a 
national provision that provides for the disclosure of the name of the 
persons concerned by the decision of the Independent Arbitration 
Committee, the duration of the ban and the reasons for it, without it 
being possible to infer the health data of the person concerned? Is it 
relevant that disclosure of that information to the general public can 
only be omitted under the national provision if the person concerned is 
a recreational athlete, a minor or a person who has contributed 
significantly to the detection of potential anti-doping violations by 
disclosing information or other indications? 
III. Does the General Data Protection Regulation – particularly in the light 
of the principles in Article 5(1)(a) and (c) thereof – in any case prior to 
the disclosure, require a balancing of interests between the personal 
interests of the person concerned that will be affected by the 
disclosure, on the one hand, and the interest of the general public in 
being informed of the anti-doping violation committed by an athlete, 
on the other? 
IV. Does the disclosure of the information that a certain person has 
committed a specific doping violation, as a result of which that person 
has been banned from taking part in (national and international) 
competitions, constitute the processing of personal data relating to 
criminal convictions and offences within the meaning of Article 10 of 
the General Data Protection Regulation? 
V. If Question IV is answered in the affirmative: Is the Independent 
Arbitration Committee established under Paragraph 8 of the 2021 
ADBG an official authority within the meaning of Article 10 of the 
General Data Protection Regulation? 
GROUNDS 
I. Succinct presentation of the facts and procedure in the main proceedings 
1 On 19 February 2021, the Unabhängige Dopingkontrolleinrichtung (Independent 
Anti-Doping Agency; ‘the NADA’) submitted a request for examination to the 
Österreichische Anti-Doping-Rechtskommission (Austrian Anti-Doping Legal 
Committee; ‘the ÖADR’) in accordance with Paragraph 18 of the 2021 ADBG 
because it was of the opinion, based on the results of an investigation by the 
Bundeskriminalamt (Federal Criminal Police Office), that the athlete E.N. had 
violated anti-doping rules. 
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2 From 1998 to 2015, E.N. engaged in running as a competitive sport. She 
specialised in long sprints/middle-distance running, namely the 400 metres and 
the 800 metres. She took part, inter alia, as a member of the Austrian Athletics 
Federation team in the 2015 European Athletics Team Championships (third 
league) on 21 and 22 June 2015 as part of the European Games. Since 2014, E.N. 
has also been chair of the club ‘T.R.’, which is a member of the Wiener 
Leichtathletikverband (Vienna Athletics Association; ‘the WLV’), which, in turn, 
is a member of the Österreichischer Leichtathletikverband (Austrian Athletics 
Federation; ‘the ÖLV’). The ÖLV is a member of the International Association of 
Athletics Federations (the IAAF; since 2020: World Athletics). During the period 
that is the subject of these proceedings, E.N. was also, until recently, chair of the 
club ‘A.T.T.V.’. This club is a member of the Österreichischer Triathlonverband 
(Triathlon Austria; ‘the ÖTRV’). The ÖTRV is a member of the International 
Triathlon Union (the ITU; since October 2020: World Triathlon). The applicant is 
also a registered trader under the company name ‘T.’. 
3 By decision of 21 February 2021 (file reference: RK 1-2021/03), the ÖADR 
instituted proceedings against E.N. concerning the imposition of disciplinary 
measures for the ÖLV. 
4 By decision of 31 May 2021, the ÖADR – after conducting oral hearings on 
11 March 2021 and 28 May 2021 – declared E.N. guilty of having violated the 
anti-doping provisions of Rule 32.2 (b) and (f) of the IAAF Competition Rules 
Chapter 3 – Anti-Doping & Medical Rules 2015 and Articles 2.2 and 2.6 of the 
IAAF Anti-Doping Rules 2017. It stated that, between May 2015 and April 2017, 
E.N. possessed the substances erythropoietin (EPO), Genotropin or Omnitrope 
and Testosterol (in the form of Androgel) that were banned in accordance with the 
WADA Prohibited Lists of 2015 to 2017 and used them at least in part in 2015. 
The ÖADR declared all of the results she achieved between 10 May 2015 and the 
date of entry into force of its decision invalid and revoked any entry fees and/or 
prize money. The ÖADR also banned E.N. from participating in sporting 
competitions of any kind for a period of four years starting from 31 May 2021. 
The ÖADR rejected the request made by E.N. for the decision in the proceedings 
before the ÖADR not to be disclosed to the general public, pursuant to 
Paragraph 21(3) of the 2021 ADBG, and in particular for the name and other 
individual characteristics of E.N. not to be disclosed or published. 
5 In accordance with Paragraph 23 of the 2021 ADBG, E.N. submitted a request for 
review of the ÖADR’s decision of 31 May 2021 to the Independent Arbitration 
Committee within the period specified. In that request, E.N. asks that the ÖADR’s 
decision be amended to the effect that the person concerned was only accused of 
possessing banned substances and that the general public not be informed of the 
doping violations and the imposed penalty through publication of the full name of 
the person concerned on a freely accessible website. 
6 After conducting an oral hearing, the Independent Arbitration Committee 
confirmed, by decision of 21 December 2021, the annulment of all competition 
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results obtained and any titles, medals, prizes, entry fees and prize money as of 
10 May 2015 and the ban on E.N. competing in any (national or international) 
competitions for a period of four years starting from 31 May 2021. The decision 
on the request to refrain from publishing the doping violations on the part of E.N. 
that were confirmed by the decision of the Independent Arbitration Committee 
and the resulting disciplinary measures to the general public in accordance with 
Paragraph 23(14) of the 2021 ADBG was reserved for separate deliberations by 
the Independent Arbitration Committee. Those proceedings before the 
Independent Arbitration Committee are stayed pending a ruling by the Court on 
the present request for a preliminary ruling. 
II. National legal position: 
1. The provisions of the 2021 ADBG (BGBl. I 152/2020) of relevance to the 
referring Arbitration Committee in the present case read as follows: 
‘Definitions 
Paragraph 2 For the purposes of this federal law, the following definitions 
shall apply: 
[…] 
4. ‘vulnerable person’ means an athlete or other natural person who, at the 
time of the violation of anti-doping rules, 
a) has not yet reached the age of 16 or 
b) has not yet reached the age of 18, does not belong to the top 
segment of a test pool and has never competed in an open category of 
an international competition or 
c) is considered not to be legally competent for reasons other than 
age; 
[…] 
14. ‘recreational athlete’ means an athlete (point 26) who, within the five 
years before committing a violation of anti-doping rules, 
a) has not participated in any international competition or national 
competition at the competitive level of a national league, national 
championship or higher; or 
b) has participated in no more than five competitions at national 
level; or 
c) does not belong to a test pool; or 
NADA AND OTHERS 
 
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d) has not already committed a violation of anti-doping rules; 
[…] 
Other procedural provisions 
Paragraph 21 […] 
(3) The ÖADR must inform the Bundes-Sportorganisation (Sport Austria; 
‘the BSO’), sports organisations, athletes, other persons, competition 
organisers and the general public of any protective measures imposed (e.g. 
suspensions) and decisions in anti-doping proceedings, stating the name of 
the person concerned, the duration of the ban and the reasons for it, without 
it being possible to infer any health data of the person concerned, no later 
than 20 days after the decision has become final. The disclosure of this 
information may be omitted in the case of vulnerable persons, recreational 
athletes and persons who have contributed significantly to the detection of 
potential anti-doping violations by disclosing information or other 
indications. In the case of recreational athletes, the information must be 
disclosed for public health reasons if an anti-doping violation in accordance 
with points 3 and 9 to 11 of Paragraph 1(2) has been established. 
[…] 
Proceedings before the Independent Arbitration Committee 
Paragraph 23 (1) The parties under paragraph 2 may request that the USK 
review decisions under Paragraph 20 within four weeks of their notification. 
The decision is to be reviewed by the USK in terms of lawfulness and, if it is 
found to be unlawful, may be reversed without replacement or amended in 
any way. The request for review does not have a suspensive effect on the 
decision under Paragraph 20 unless such an effect is established by the USK. 
(2) The parties to the proceedings before the USK are 
1. the person concerned by the decision of the ÖADR or the legal entity 
of the team concerned, 
2. the Independent Anti-Doping Agency and 
3. the persons authorised by the applicable anti-doping rules of the 
competent international sports federation. 
(3) The provisions of Paragraphs 580(1) and (2), 588(2), 592(1) and (2), 
594 and 595, 597 to 602, 604, 606(1) to (5), 608(1) and (2) and 610 of the 
Zivilprozessordnung (Code of civil procedure; ‘the ZPO’), RGBl. 
No 113/1895, apply mutatis mutandis to proceedings before the USK. The 
USK must conduct the proceedings in accordance with the applicable anti-
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doping rules of the competent international sports federation. Public 
proceedings may be requested by the parties to the case under paragraph 2, 
with the consent of the party under point 1 of paragraph 2 being required in 
any case. In individual cases, the USK may decide to exclude the public 
entirely or in part on objective grounds. Paragraph 21(4) applies mutatis 
mutandis to proceedings before the USK. In addition, the USK must adopt 
rules of procedure containing more detailed provisions on the course of the 
proceedings. The rules of procedure must be made available to the general 
public in an appropriate manner. 
(4) Within six weeks of receiving the request for review, the USK must 
either take a decision or schedule a hearing. After the oral procedure, the 
final decision must be issued in writing within four weeks, stating the 
reasons. The proceedings must be concluded within six months of receiving 
the request for review, with delays caused by the party under point 1 of 
paragraph 2 to be included in this time limit. If the votes are evenly divided, 
the chair shall have the deciding vote. Decisions must be made in writing, 
stating the reasons. Notwithstanding the USK’s arbitration award, the World 
Anti-Doping Agency (WADA), the International Olympic Committee, the 
International Paralympic Committee and the competent international sports 
federation may appeal the decision of the USK before the Court of 
Arbitration for Sport (CAS). In cases relating to participation in an 
international competition or cases involving international athletes, decisions 
may be challenged directly before the CAS. For the resolution of civil 
disputes, the civil appeals process remains open after exhausting the internal 
appeals process in anti-doping proceedings. 
[…] 
(10) The USK must, without prejudice to its competence under paragraph 1, 
decide: 
1. on the finding of a failure to test or to report, in accordance with 
Paragraph 5(7), without undue delay and no later than 12 weeks from 
receiving the review request, unless the parties under point 1 of 
paragraph 11 agree on a longer period; […] 
2. on the non-granting of a medical exemption, in accordance with 
Paragraph 12(7), without undue delay and no later than two weeks after 
receiving the review request, unless the parties under point 2 of 
paragraph 11 agree on a longer period; […] 
3. on the determination of costs, in accordance with Paragraph 21(1), 
without undue delay and no later than twelve weeks after receiving the 
review request, unless the parties under point 3 of paragraph 11 agree on a 
longer period; […] 
(11) The parties in the matters under paragraph 10 are: 
NADA AND OTHERS 
 
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1. with regard to decisions on the finding of a failure to test or to report, 
the person concerned by the finding and the Independent Anti-Doping 
Agency and, with regard to the associated costs, the competent national 
sports federation, unless it has requested the assignment thereof; 
[…] [national law irrelevant to the present case] 
(14) The USK must inform the BSO, sports organisations, athletes, other 
persons, competition organisers and the general public of its decisions, 
stating the name of the persons concerned, the duration of the ban and the 
reasons for it, without it being possible to infer any health data of the person 
concerned. The disclosure of this information may be omitted in the case of 
vulnerable persons, recreational athletes and persons who have contributed 
significantly to the detection of potential anti-doping violations by 
disclosing information or other indications. In the case of recreational 
athletes, the information must be disclosed for public health reasons if an 
anti-doping violation in accordance with points 3 and 9 to 11 of 
Paragraph 1(2) has been established. 
[…] 
Transitional provisions 
Paragraph 36 (1) Any proceedings on the violation of anti-doping rules that 
are pending at the end of 31 December 2020 shall be governed by the law in 
force at the time of the violation of anti-doping rules, unless the law in force 
at the time of the decision would be more favourable to the person or team 
concerned. 
(2) Proceedings regarding infringements of the 2007 ADBG, BGBl. I 
No 30/2007, shall be governed by the procedural provisions in force at the 
time of the infringement, unless the law in force at the time of the decision 
would be more favourable to the person or team concerned. 
[…]’ 
2. Paragraph 15a(3) of the Bundesgesetz über die Bekämpfung von Doping im 
Sport (Anti-Doping-Bundesgesetz 2007) (2007 Federal law on anti-doping; ‘the 
2007 ADBG’), BGBl. I 30/2007, which ceased to have effect on 1 January 2021, 
reads as follows: 
‘(3) The ÖADR must inform the BSO, sports organisations, athletes, 
coaches, competition organisers and the general public of any protective 
measures imposed (e.g. suspensions) and decisions in anti-doping 
proceedings, stating the name of the person concerned, the duration of the 
ban and the reasons for it, without it being possible to infer any health data 
of the person concerned. In the case of minors, the disclosure of that 
information must be omitted.’ 
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III. Provisions of European law relied on: 
Articles 4(15), 5, 6, 9 and 10 of Regulation (EU) 2016/679 of the European 
Parliament and of the Council of 27 April 2016 on the protection of natural 
persons with regard to the processing of personal data and on the free movement 
of such data, and repealing Directive 95/46/EC (General Data Protection 
Regulation) read as follows: 
‘Article 4 
Definitions 
For the purposes of this Regulation: 
[…] 
(15) ‘data concerning health’ means personal data related to the physical or 
mental health of a natural person, including the provision of health care 
services, which reveal information about his or her health status; 
[…] 
Article 5 
Principles relating to processing of personal data 
1. Personal data shall be: 
(a) processed lawfully, fairly and in a transparent manner in relation to the 
data subject (‘lawfulness, fairness and transparency’); 
(b) collected for specified, explicit and legitimate purposes and not further 
processed in a manner that is incompatible with those purposes; further 
processing for archiving purposes in the public interest, scientific or 
historical research purposes or statistical purposes shall, in accordance with 
Article 89(1), not be considered to be incompatible with the initial purposes 
(‘purpose limitation’); 
(c) adequate, relevant and limited to what is necessary in relation to the 
purposes for which they are processed (‘data minimisation’); 
(d) accurate and, where necessary, kept up to date; every reasonable step 
must be taken to ensure that personal data that are inaccurate, having regard 
to the purposes for which they are processed, are erased or rectified without 
delay (‘accuracy’); 
(e) kept in a form which permits identification of data subjects for no 
longer than is necessary for the purposes for which the personal data are 
processed; personal data may be stored for longer periods in so far as the 
NADA AND OTHERS 
 
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personal data will be processed solely for archiving purposes in the public 
interest, scientific or historical research purposes or statistical purposes in 
accordance with Article 89(1) subject to implementation of the appropriate 
technical and organisational measures required by this Regulation in order to 
safeguard the rights and freedoms of the data subject (‘storage limitation’); 
(f) processed in a manner that ensures appropriate security of the personal 
data, including protection against unauthorised or unlawful processing and 
against accidental loss, destruction or damage, using appropriate technical or 
organisational measures (‘integrity and confidentiality’). 
2. The controller shall be responsible for, and be able to demonstrate 
compliance with, paragraph 1 (‘accountability’). 
Article 6 
Lawfulness of processing 
1. Processing shall be lawful only if and to the extent that at least one of 
the following applies: 
(a) the data subject has given consent to the processing of his or her 
personal data for one or more specific purposes; 
(b) processing is necessary for the performance of a contract to which the 
data subject is party or in order to take steps at the request of the data subject 
prior to entering into a contract; 
(c) processing is necessary for compliance with a legal obligation to which 
the controller is subject; 
(d) processing is necessary in order to protect the vital interests of the data 
subject or of another natural person; 
(e) processing is necessary for the performance of a task carried out in the 
public interest or in the exercise of official authority vested in the controller; 
(f) processing is necessary for the purposes of the legitimate interests 
pursued by the controller or by a third party, except where such interests are 
overridden by the interests or fundamental rights and freedoms of the data 
subject which require protection of personal data, in particular where the 
data subject is a child. 
Point (f) of the first subparagraph shall not apply to processing carried out 
by public authorities in the performance of their tasks. 
2. Member States may maintain or introduce more specific provisions to 
adapt the application of the rules of this Regulation with regard to 
processing for compliance with points (c) and (e) of paragraph 1 by 
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determining more precisely specific requirements for the processing and 
other measures to ensure lawful and fair processing including for other 
specific processing situations as provided for in Chapter IX. 
3. The basis for the processing referred to in point (c) and (e) of 
paragraph 1 shall be laid down by: 
(a) Union law; or 
(b) Member State law to which the controller is subject. 
The purpose of the processing shall be determined in that legal basis or, as 
regards the processing referred to in point (e) of paragraph 1, shall be 
necessary for the performance of a task carried out in the public interest or in 
the exercise of official authority vested in the controller. That legal basis 
may contain specific provisions to adapt the application of rules of this 
Regulation, inter alia: the general conditions governing the lawfulness of 
processing by the controller; the types of data which are subject to the 
processing; the data subjects concerned; the entities to, and the purposes for 
which, the personal data may be disclosed; the purpose limitation; storage 
periods; and processing operations and processing procedures, including 
measures to ensure lawful and fair processing such as those for other 
specific processing situations as provided for in Chapter IX. The Union or 
the Member State law shall meet an objective of public interest and be 
proportionate to the legitimate aim pursued. 
4. Where the processing for a purpose other than that for which the 
personal data have been collected is not based on the data subject’s consent 
or on a Union or Member State law which constitutes a necessary and 
proportionate measure in a democratic society to safeguard the objectives 
referred to in Article 23(1), the controller shall, in order to ascertain whether 
processing for another purpose is compatible with the purpose for which the 
personal data are initially collected, take into account, inter alia: 
(a) any link between the purposes for which the personal data have been 
collected and the purposes of the intended further processing; 
(b) the context in which the personal data have been collected, in 
particular regarding the relationship between data subjects and the 
controller; 
(c) the nature of the personal data, in particular whether special categories 
of personal data are processed, pursuant to Article 9, or whether personal 
data related to criminal convictions and offences are processed, pursuant to 
Article 10; 
(d) the possible consequences of the intended further processing for data 
subjects; 
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(e) the existence of appropriate safeguards, which may include encryption 
or pseudonymisation. 
[…] 
Article 9 
Processing of special categories of personal data 
1. Processing of personal data revealing racial or ethnic origin, political 
opinions, religious or philosophical beliefs, or trade union membership, and 
the processing of genetic data, biometric data for the purpose of uniquely 
identifying a natural person, data concerning health or data concerning a 
natural person’s sex life or sexual orientation shall be prohibited. 
2. Paragraph 1 shall not apply if one of the following applies: 
(a) the data subject has given explicit consent to the processing of those 
personal data for one or more specified purposes, except where Union or 
Member State law provide that the prohibition referred to in paragraph 1 
may not be lifted by the data subject; 
(b) processing is necessary for the purposes of carrying out the obligations 
and exercising specific rights of the controller or of the data subject in the 
field of employment and social security and social protection law in so far as 
it is authorised by Union or Member State law or a collective agreement 
pursuant to Member State law providing for appropriate safeguards for the 
fundamental rights and the interests of the data subject; 
(c) processing is necessary to protect the vital interests of the data subject 
or of another natural person where the data subject is physically or legally 
incapable of giving consent; 
(d) processing is carried out in the course of its legitimate activities with 
appropriate safeguards by a foundation, association or any other not-for-
profit body with a political, philosophical, religious or trade union aim and 
on condition that the processing relates solely to the members or to former 
members of the body or to persons who have regular contact with it in 
connection with its purposes and that the personal data are not disclosed 
outside that body without the consent of the data subjects; 
(e) processing relates to personal data which are manifestly made public 
by the data subject; 
(f) processing is necessary for the establishment, exercise or defence of 
legal claims or whenever courts are acting in their judicial capacity; 
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(g) processing is necessary for reasons of substantial public interest, on the 
basis of Union or Member State law which shall be proportionate to the aim 
pursued, respect the essence of the right to data protection and provide for 
suitable and specific measures to safeguard the fundamental rights and the 
interests of the data subject; 
(h) processing is necessary for the purposes of preventive or occupational 
medicine, for the assessment of the working capacity of the employee, 
medical diagnosis, the provision of health or social care or treatment or the 
management of health or social care systems and services on the basis of 
Union or Member State law or pursuant to contract with a health 
professional and subject to the conditions and safeguards referred to in 
paragraph 3; 
(i) processing is necessary for reasons of public interest in the area of 
public health, such as protecting against serious cross-border threats to 
health or ensuring high standards of quality and safety of health care and of 
medicinal products or medical devices, on the basis of Union or Member 
State law which provides for suitable and specific measures to safeguard the 
rights and freedoms of the data subject, in particular professional secrecy; 
(j) processing is necessary for archiving purposes in the public interest, 
scientific or historical research purposes or statistical purposes in accordance 
with Article 89(1) based on Union or Member State law which shall be 
proportionate to the aim pursued, respect the essence of the right to data 
protection and provide for suitable and specific measures to safeguard the 
fundamental rights and the interests of the data subject. 
3. Personal data referred to in paragraph 1 may be processed for the 
purposes referred to in point (h) of paragraph 2 when those data are 
processed by or under the responsibility of a professional subject to the 
obligation of professional secrecy under Union or Member State law or rules 
established by national competent bodies or by another person also subject 
to an obligation of secrecy under Union or Member State law or rules 
established by national competent bodies. 
4. Member States may maintain or introduce further conditions, including 
limitations, with regard to the processing of genetic data, biometric data or 
data concerning health. 
Article 10 
Processing of personal data relating to criminal 
convictions and offences 
Processing of personal data relating to criminal convictions and offences or 
related security measures based on Article 6(1) shall be carried out only 
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under the control of official authority or when the processing is authorised 
by Union or Member State law providing for appropriate safeguards for the 
rights and freedoms of data subjects. Any comprehensive register of 
criminal convictions shall be kept only under the control of official 
authority.’ 
IV. Capacity to refer and preliminary observations 
(1) In accordance with Paragraph 25(1) of the 2021 ADBG, athletes (as defined 
in Paragraph 2(26) of the 2021 ADBG) are subject to the anti-doping rules of the 
respective national sports federation and of the respective international 
competition, and to the provisions of the Federal law on anti-doping. By becoming 
a member of a sports organisation within the meaning of Paragraph 2(27) of the 
2021 ADBG or participating in corresponding competitions, the athlete submits to 
the system for the imposition of disciplinary measures in the event of a violation 
of the anti-doping rules applicable to him or her. 
(2) In accordance with Paragraph 20 of the 2021 ADBG, the – independent and 
autonomous – Austrian Anti-Doping Legal Committee (the ÖADR) is responsible 
for deciding on penalties at first instance in the event of a violation of anti-doping 
rules (for the respective national sports federation). 
The parties may request that the Independent Arbitration Committee review 
decisions of the ÖADR under Paragraph 20 of the 2021 ADBG within four weeks 
of their notification (Paragraph 23(1) of the 2021 ADBG). In accordance with 
Paragraph 23(2) of the 2021 ADBG, the parties to these arbitration proceedings 
include the persons concerned by the decision of the ÖADR (e.g. athletes) and the 
Independent Anti-Doping Agency (Paragraph 5 of the 2021 ADBG), which issued 
the request for examination (Paragraph 18 of the 2021 ADBG) on the basis of 
which the proceedings before the ÖADR were initiated. 
The decision of the ÖADR is to be reviewed by the Independent Arbitration 
Committee in terms of lawfulness and, if it is found to be unlawful, may be 
reversed without replacement or amended in any way. 
(3) The Independent Arbitration Committee is a committee established in 
accordance with Paragraph 8 of the ADBG 2021 that is independent of public 
authorities, private individuals and the Independent Anti-Doping Agency. The 
chair and the permanent members of the Independent Arbitration Committee are 
appointed by the Federal Minister for the Arts, Culture, the Civil Service and 
Sport for a term of four years, subject to the conditions set out in Paragraph 8(2) 
of the 2021 ADBG, with reappointments being permissible. 
In accordance with Paragraph 23(4) of the 2021 ADBG, ‘notwithstanding the 
arbitration award’ of the Independent Arbitration Committee, the parties to 
arbitration proceedings ‘shall continue to have recourse to the civil appeals 
process after exhausting the internal appeals process in anti-doping proceedings’. 
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According to the case-law of the Oberster Gerichtshof (Supreme Court), recourse 
to the civil courts in matters of doping violations, as a civil dispute arising within 
an association, requires the decision of the ÖADR to have first been appealed 
before the Independent Arbitration Committee […]. 
(4) The Independent Arbitration Committee is a permanent (institutionalised) 
arbitration tribunal established by law through the 2021 Federal law on anti-
doping (and already by the 2007 ADBG), which functions as the highest Austrian 
arbitration tribunal for associations for all violations of the 2021 ADBG under 
sports law. The Independent Arbitration Committee is required to rule completely 
independently in the context of proceedings seeking to issue a decision that, in 
essence, should be regarded as case-law. In accordance with the case-law of the 
Court (C-200/98, X and Y, […] paragraphs 14 and 15; C-134/97, Victoria Film, 
[…] paragraph 14; and C-54/96, Dorsch Consult Ingenieursgesellschaft v 
Bundesbaugesellschaft Berlin, paragraph 23), the Independent Arbitration 
Committee is therefore a ‘court or tribunal’ within the meaning of the second 
paragraph of Article 267 TFEU. 
(5) The present case is based on a request for review of a decision of the ÖADR 
finding certain doping violations on the part of the applicant E.N. concerning the 
possession and use of banned substances and therefore disqualifying and banning 
the applicant from all (national and international) competitions for four years, due 
to a violation of Rule 32.2 (b) and (f) of the IAAF Competition Rules Chapter 3 – 
Anti-Doping & Medical Rules 2015 and Articles 2.2 and 2.6 of the IAAF Anti-
Doping Rules 2017. During the course of these proceedings, the athlete concerned 
requested that the ÖADR and the Independent Arbitration Committee refrain from 
publishing the decision of the ÖADR and the Independent Arbitration Committee 
to the general public (making it accessible to the general public) pursuant to 
Paragraph 23(14) of the 2021 ADBG as it would infringe her right to data 
protection. 
(6) The Independent Arbitration Committee is called on to rule on this request 
made by the athlete concerned and considers several questions concerning the 
interpretation of the General Data Protection Regulation to be of relevance to its 
decision in these proceedings, as a result of which the questions set out above are 
referred to the Court for a preliminary ruling under Article 267 TFEU. 
V. Questions referred for a preliminary ruling: 
The national provision of Paragraph 23(14) of the 2021 ADBG requires the 
Independent Arbitration Committee to inform the general public of its decisions, 
stating the name of the persons concerned, the duration of the ban and the reasons 
for it, without it being possible to infer any health data of the person concerned. 
The disclosure of this information may be omitted in the case of vulnerable 
persons, recreational athletes and persons who have contributed significantly to 
the detection of potential anti-doping violations by disclosing information or other 
NADA AND OTHERS 
 
15 
indications. Paragraph 2 of the 2021 ADBG defines the terms ‘recreational 
athlete’ and ‘vulnerable person’ in more detail. 
Question I: When applying Paragraph 23(14) of the 2021 ADBG in the light of the 
provisions of the General Data Protection Regulation, the Independent Arbitration 
Committee is first faced with the question of whether the publication of the 
information that a certain person has violated an anti-doping rule (and has 
therefore been banned) constitutes ‘data concerning health’ within the meaning of 
Article 9 of the General Data Protection Regulation read in conjunction with 
Article 4(15) thereof. The Independent Arbitration Committee considers it to be 
particularly relevant that the obligation to disclose an anti-doping violation that 
has been committed generally – as is the case in the main proceedings (see point 
I.4. above) – includes information regarding which performance-enhancing 
substance was taken by the athlete. The Court’s answer to this question is of 
importance for the referring Independent Arbitration Committee in so far as, in 
this case, the requirements of Article 9 of the General Data Protection Regulation 
apply and the national provision only provides for the decision to be published in 
anonymised form (‘without it being possible to infer any health data of the person 
concerned’). 
Question II: The question also arises as to whether the General Data Protection 
Regulation – particularly in the light of the second subparagraph of Article 6(3) 
thereof – precludes a national provision that provides for the disclosure of the 
name of the persons concerned by the decision of the Independent Arbitration 
Committee, the duration of the ban and the reasons for it, without it being possible 
to infer the health data of the person concerned. In view of the requirements 
regarding the legal basis for data processing as a justifying circumstance under 
Article 6(1)(e) of the General Data Protection Regulation, the Independent 
Arbitration Committee questions whether the aforementioned national provision 
adequately safeguards the principle of the proportionality of data processing set 
out in that regulation. This is especially true since the national provision of 
Paragraph 23(14) of the 2021 ADBG only provides for a balancing of interests in 
individual cases if the person concerned is a recreational athlete, a minor or a 
person who has contributed significantly to the detection of potential anti-doping 
violations by disclosing information or other indications. 
Question III must also be understood in the light of that observation. In the present 
proceedings concerning the disclosure of the disciplinary measure against E.N., 
the question arises for the Independent Arbitration Committee as to whether the 
General Data Protection Regulation – particularly in the light of the principles in 
Article 5(1)(a) and (c) thereof – requires a balancing of interests between the 
personal interests of the person concerned that will be affected by the disclosure, 
on the one hand, and the interest of the general public in being informed of the 
anti-doping violation committed by an athlete, on the other. 
Question IV: In Case C-439/19, Latvijas Republikas Saeima, paragraphs 73 to 94, 
the Court emphasised that the terms ‘criminal convictions’ and ‘offences’ in 
REQUEST FOR A PRELIMINARY RULING OF 21. 12. 2021 – CASE C-115/22 
 
16  
Article 10 of the General Data Protection Regulation must be given an 
autonomous interpretation. Even in the case of offences which are not classified as 
‘criminal’ by national law, the intrinsic nature of the offence in question and the 
degree of severity of the penalties to which it is liable to give rise may result in its 
being criminal in nature (see, to that effect, judgment of 20 March 2018, Garlsson 
Real Estate and Others, C-537/16, EU:C:2018:193, paragraphs 28 and 32). 
The 2021 Federal law on anti-doping (the 2021 ADBG) stipulates that, if an 
athlete belonging to a certain sports federation structure or an athlete competing in 
competitions organised by sports federations is subject to anti-doping rules of the 
international sports federations, the penalties set out in those rules are legally 
binding. In the present case, the penalty involves the revocation of titles and prize 
money and a four-year ban from all (national and international) competitions. 
Depending on the nature of the doping violation, such competitive bans can 
extend up to lifetime bans. The consequence of such a ban is ultimately the 
(temporary) prohibition of pursuing sporting activities, even and especially if this 
serves or served the purpose of earning income. In accordance with 
Paragraph 24(4) of the 2021 ADBG, sports organisations must not ‘deploy’ 
persons banned under anti-doping law, that is to say they cannot offer them 
gainful employment. 
Against that background, the question arises for the Independent Arbitration 
Committee as to whether the disclosure of the name of the persons concerned by 
the decision of the Independent Arbitration Committee, the duration of the ban 
and the reasons for it is subject to the requirements of Article 10 of the General 
Data Protection Regulation. 
Question V: If Question IV is answered in the affirmative, the question arises as to 
whether the Independent Arbitration Committee is an official authority within the 
meaning of Article 10 of the General Data Protection Regulation. To this end, 
reference is made to the information regarding the legal basis, organisation and 
function of the Independent Arbitration Committee set out in points IV.2-IV.4 
above. 
[…]