Judgment — ECLI:EU:C:2008:376
Date: 2008-07-01
Language of the case: Greek
Court formation: Grand Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition
Concepts: Public undertakings;Definition of undertaking
Procedure: Reference for a preliminary ruling
Origin: Greece

summary, it can be concluded that: A non-profit-making association that not only has an exclusive right of co-decision in the authorisation by a public body of motorcycling events but also itself organises such events and, in this connection, concludes sponsorship, advertising and insurance agreements, is an undertaking within the meaning of Articles 82 EC and 86 EC. It is for the national court, having regard to the case-law of the Court of Justice concerning Article 82 EC, to examine whether that association holds a dominant position on the market and whether the abuse of that position would be capable of appreciably affecting trade between Member States. C – Compatibility of ELPA’s dual role with Article 86(1) in conjunction with Article 82 EC (second question) 82. If, as I have proposed, the first question is to be answered in the affirmative, the second question also requires discussion. By the second question, the referring court wishes, in essence, to ascertain whether Articles 82 EC and 86 EC preclude a provision such as Article 49 of the Greek Road Traffic Code, under which a non-profit-making association that itself organises and markets motorcycling events is at the same time accorded an exclusive right of co-decision in the authorisation by a public body of such events, in which capacity it can refuse to give its consent without being subject to any restrictions, obligations or controls. 83. Essentially, the dual role, as referred to above, of an association such as ELPA must be measured against the criterion of Community law, in particular Article 86(1) EC in conjunction with Article 82 EC. 1. The requirements of Article 86(1) EC in conjunction with Article 82 EC 84. Under Article 86(1) EC, with regard to undertakings to which Member States grant special or exclusive rights, Member States must neither enact nor maintain in force any measure contrary to the rules of competition law. 85. The term ‘measure’ must be interpreted broadly in this connection. Even a legal provision such as Article 49 of the Greek Road Traffic Code is covered by it. (58) 86. Through the rules on consent laid down in that article, the Greek State accords to ELPA, as the official representative of the FIM in Greece, the exclusive right of co-decision in the authorisation of motorcycling events. 87. Such a provision infringes Article 86(1) EC in conjunction with Article 82 EC where the undertaking in question, merely by exercising the exclusive right granted to it, abuses its dominant position or where that right is liable to create a situation in which that undertaking commits such an abuse. (59) Whether any abuse actually occurs is immaterial. (60) 88. As I shall show below, not every exercise of ELPA’s right of co-decision in the authorisation of motorcycling events necessarily leads to an abuse of its dominant position, particularly if due account is taken of objective considerations such as the interests of sport (see in this regard subsection (a) below). However, a provision such as Article 49 of the Greek Road Traffic Code invites abuse because of the way in which it in fact operates (see subsection (b) below). a) Not every exercise of the right of co-decision is abuse per se 89. Certainly, not every exercise of the right of co-decision conferred on ELPA by Article 49 of the Road Traffic Code can automatically be regarded as abuse. If the behaviour of an undertaking in a dominant position can be objectively justified, it is not abuse. (61) In fact, in a case such as this, there may be objective reasons why an association such as ELPA refuses to give its consent to the authorisation of a motorcycling event. 90. The existence of such an objective reason is particularly evident where, at a planned motorcycling event, the safety of the racers and spectators would not be guaranteed because the organiser did not take the appropriate precautions. 91. However, in addition to the purely technical safety requirements, there may be other objective reasons for refusing consent which relate to the particular characteristics of the sport. (62) In a case such as this, it is worth bearing in mind the following considerations. 92. Firstly, it is in the interests of the sportspersons concerned, but also of the spectators and the public in general, that, for each sport, rules that are as uniform as possible apply and are observed so as to ensure that competitions are conducted in a regulated and fair manner. This applies not only to the frequently discussed anti-doping rules, but also to the ordinary rules of sport. If rules varied greatly from one organiser to another, it would be more difficult for sportspersons to participate in competitions and to compare their respective performances; the public’s interest in and recognition of the sport in question might also suffer. 93. Consequently, the fact that an organisation such as ELPA makes the grant of its consent to the authorisation of a motorcycling event subject to compliance with certain internationally recognised rules cannot automatically be regarded as abuse. (63) This is without prejudice, of course, to the substantive examination of each of those rules from the point of view of their compatibility with Community law, in particular its rules on competition. (64) 94. Secondly, it is in the interests of the sportspersons participating in the event, but also of the spectators and the public in general, that the individual competitions in a particular sport are incorporated into an overarching framework so that, for example, a specific timetable can be followed. It may make sense to prevent clashes between competitions so that both sportspersons and spectators can participate in as many such events as possible. 95. Consequently, the fact that an organisation such as ELPA makes the grant of consent to the authorisation of a motorcycling event subject to the requirement that the event must not clash with other events that have already been planned and authorised cannot automatically be regarded as an abuse. (65) However, it goes without saying in this regard that, when establishing a national Greek annual programme for motorcycling events, ELPA must not give preference to the events (co-)organised or marketed by it over those of other, independent organisers. 96. The pyramid structure (66) that has developed in most sports (67) helps to ensure that the special requirements of sport, such as uniform rules and a uniform timetable for competitions, are taken into account. An organisation such as ELPA, which is the official representative of the FIM in Greece, is part of that pyramid structure. Under its right of co-decision in the authorisation by a public body of motorcycling events, it may legitimately assert the interests of sport and, if necessary, refuse to give its consent. However, a refusal to grant consent becomes an abuse where it has no objective justification in the interests of sport, but is used arbitrarily to promote the organisation’s own economic interests, to the detriment of other service providers that would like to organise, and above all market, motorcycling events on their own responsibility. b) Legislation such as that in force in Greece invites abuse 97. Irrespective of whether any abuse actually exists, it is sufficient, for the purposes of establishing an infringement of Article 86(1) EC in conjunction with Article 82 EC, that a State measure merely creates a risk of abuse. (68) In the present case, the risk that ELPA will abuse its dominant position (69) in exercising its right of co-decision under Article 49 of the Greek Road Traffic Code is particularly high, for two reasons. 98. Firstly, rules on consent such as those in question here lead to a conflict of interest: (70) ELPA, which itself organises and markets motorcycling events, receives from the Greek State a right of co-decision in the authorisation of motorcycling events of other, independent service providers. ELPA thus not only has the legal means that allow it effectively to prevent other service providers from entering the Greek market, but also an economic interest in limiting access to the market by its competitors to its own advantage. 99. Secondly, ELPA is not subject, under those rules on consent, to any restrictions, obligations or controls in relation to the grant or refusal of its consent to the authorisation of motorcycling events. This makes it particularly easy for ELPA to refuse to give consent to the authorisation of the motorcycling events of other, independent service providers. As the present case clearly shows, the mere fact that ELPA omitted to act was sufficient to thwart the plans of another service provider – in this instance, MOTOE – in the year 2000. 100. However, a system of undistorted competition as provided for by the EC Treaty (71) can be guaranteed only if equality of opportunity is secured as between the various economic operators. (72) This is not the case where an undertaking such as ELPA, which itself organises and markets motorcycling events, receives from the State the power to determine at its discretion which motorcycling events may take place in Greece, since this gives it a distinct advantage over its competitors, as regards both the organisation of motorcycling events and their marketing. (73) 101. From the point of view of Community law, there can be no objection if the national legislature provides in certain cases that the relevant authorities should obtain expert advice before granting authorisation for an activity. Generally, it may therefore be appropriate to involve the sports associations concerned in decisions relating to sport. The particular characteristics of sport and of the sport in question can best be taken into account in this way. (74) 102. However, the maintenance of effective competition and the ensuring of transparency require a clear separation between the entity that participates in the authorisation by a public body of motorcycling events and, where appropriate, monitors them, on the one hand, and the undertakings that organise and market such events, on the other. (75) That principle of separation is breached where, in circumstances such as those in this case, one and the same entity, namely ELPA and the ETHEAM committee set up by it, not only participates in the public body’s authorisation of motorcycling events and is entrusted with monitoring their safety, but is also itself active – in competition with other, independent service providers – in organising and marketing such events. 103. It must also be ensured that the authorisation by a public body of a motorcycling event may be refused only in accordance with objective, non-discriminatory criteria. It must be possible, where appropriate, to obtain that authorisation for a motorcycling event without the consent of an entity called upon to participate, such as ELPA, where that entity arbitrarily refuses to give its consent. Moreover, the applicant must have an effective legal remedy against an adverse official decision; (76) this includes the adoption of interim measures. (77) 104. It is true that the Greek Government submits in this regard that – contrary to what is stated in the order for reference – ELPA is obliged to give its consent to the authorisation of a motorcycling event where that authorisation has been duly applied for and all the conditions applicable under the relevant national rules have been fulfilled. Moreover, the express or implicit non-grant of consent by ELPA is subject to judicial review by the Simvoulio tis Epikratias. (78) 105. However, it is not for the Court of Justice to adopt a position on the interpretation of the national law in this dispute. In accordance with the division of competences between the Community judicature and the courts of the Member States, the Court of Justice must proceed from the findings of the referring court in relation to the factual and legal context in which a request for a preliminary ruling is made. (79) The order for reference expressly assumes that, when granting consent, ELPA is not subject to any restrictions, obligations or controls. 106. All in all, therefore, it must be assumed that a provision such as Article 49 of the Greek Road Traffic Code is not in conformity with the requirements of Article 86(1) in conjunction with Article 82 EC, because it invites abuse. 2. The exceptions under Article 86(2) EC 107. Finally, it remains to be examined whether a provision such as Article 49 of the Road Traffic Code may be covered by the exceptions in Article 86(2) EC. Under that provision, undertakings entrusted with the operation of services of general economic interest (80) are to be subject to the rules contained in the EC Treaty, in particular the rules on competition, only to a limited extent; such undertakings are subject to the rules on competition only in so far as their application does not obstruct the performance, in law or in fact, of the particular tasks assigned to them. 108. In this regard, two categories of tasks must be distinguished within the activity of an association such as ELPA: the organisation and marketing of motorcycling events, on the one hand, and the participation in the official authorisation of such events under Article 49 of the Road Traffic Code, on the other. 109. As regards, firstly, the organisation and marketing of motorcycling events by an association such as ELPA, the question whether they constitute a service of general economic interest within the meaning of Article 86(2) EC, as the social significance of sport might perhaps suggest, can be left unanswered here. In any event, there is no evidence in this case that the Greek State has ‘entrusted’ ELPA with the organisation and marketing of sports events by means of an act of public authority. (81) Nor is it clear to what extent a preferential right such as that conferred by Article 49 of the Road Traffic Code, which enables it to keep other service providers out of the market, is necessary in order for ELPA to perform such a task. (82) In any event, the way in which that preferential right in fact operates, (83) which entitles ELPA to refuse to give its consent to the authorisation of motorcycling events of other service providers without restrictions, obligations or controls, is disproportionate. 110. As regards, finally, ELPA’s participationin the public body’s authorisation of motorcycling events, the association does not provide any service of general economic interest in this connection, but is involved in the exercise of public authority. Article 86(2) EC is not applicable here, since the precondition for the application of that provision is the existence of a service, that is to say an economic activity as an undertaking. (84) 111. In the light of the foregoing, Article 86(2) EC cannot be relied on in order to justify a provision such as Article 49 of the Road Traffic Code. 3. Interim finding 112. In summary, the following conclusion can be drawn: Articles 82 EC and 86 EC preclude a provision such as Article 49 of the Greek Road Traffic Code, under which a non-profit-making association which itself organises and markets motorcycling events is at the same time granted an exclusive right of co-decision in a public body’s authorisation of such events, in which capacity it may refuse to give its consent without being subject in this regard to any restrictions, obligations or controls. VI – Conclusion 113. For the foregoing reasons, I propose that the Court’s answer to the questions referred by the Diikitiko Efetio Athinon should be as follows: (1) A non-profit-making association that not only has an exclusive right of co-decision in the authorisation by a public body of motorcycling events but also itself organises such events and, in this connection, concludes sponsorship, advertising and insurance agreements, is an undertaking within the meaning of Articles 82 EC and 86 EC. It is for the national court, having regard to the case-law of the Court of Justice on Article 82 EC, to examine whether that association holds a dominant position on the market and whether the abuse of that position would be capable of appreciably affecting trade between Member States. (2) Articles 82 EC and 86 EC preclude a provision such as Article 49 of the Greek Road Traffic Code, under which a non-profit-making association which itself organises and markets motorcycling events is at the same time granted an exclusive right of co-decision in the public body’s authorisation of such events, in which capacity it may refuse to give its consent without being subject in this regard to any restrictions, obligations or controls. 1 Original language: German. 2 – Elliniki Leschi Aftokinitou kai Periigiseon. 3 – Ethniki Epitropi Agonon Motosikletas. 4 – Motosykletistiki Omospondia Ellados. 5 – FEK A’ 57. 6 – FEK A’ 121. 7 – Ethnikos Athlitikos Kanonismos Motosikletas. 8 – Administrative Court, Athens. 9 – According to the official euro exchange rate (EUR 1 = GRD 340.750), this corresponds to an amount of EUR 14 673.51. 10 – Administrative Appeal Court, Athens. 11 – Declaration No 29 in the Final Act of the Intergovernmental Conference on the Treaty of Amsterdam signed on 2 October 1997 (OJ 1997 C 340, p. 136). 12 – ‘Declaration on the specific characteristics of sport and its social function in Europe, of which account should be taken in implementing common policies’, Nice European Council (7, 8 and 9 December 2000), Presidency Conclusions (paragraph 52 and Annex IV, see in particular paragraphs 1, 7 and 17 of the declaration printed there). 13 – COM(2007) 391 final; see in particular there the introduction (p. 2) and section 4.1 (p. 14 et seq.); see also section 3.4 and section 4 of the Commission Working Document published with the White Paper on Sport, ‘Commission Staff Working Document – The EU and Sport: Background and Context’ of 11 July 2007, SEC(2007) 935. The White Paper and Working Document can be downloaded from http://ec.europa.eu/sport/index_en.html (last visited on 10 January 2008). 14 – Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed in Lisbon on 13 December 2007 (OJ 2007 C 306, p. 1). 15 – See in particular Article 6(e) and Article 165 of the future Treaty on the Functioning of the European Union; see to the same effect the existing Article I-17(e) and Article III-282 of the Treaty establishing a Constitution for Europe, signed in Rome on 29 October 2004 (OJ 2004 C 310, p. 1). 16 – Case C-519/04 P Meca-Medina [2006] ECR I-6991, paragraph 22 and the case-law cited there. 17 – That case-law has so far lost none of its relevance when it comes to defining the scope of the traditional fundamental freedoms of the EC Treaty or – as here – defining the scope of its competition rules. More generally, however, it should be remembered that the beginnings of that case-law date back to a time when the Community was essentially an economic community. As a result of the introduction of Union citizenship and many new policies, in particular in the areas of education and youth, the EC Treaty now also has non-economic links to sport. It is certainly the case that, on the entry into force of the Treaty of Lisbon, there will no longer be any doubt that the relevance of sport to Community law extends beyond its economic aspects; this is emphasised by the fact that sport is mentioned in Title XII, ‘Education, vocational training, youth and sport’, of the future Treaty on the Functioning of the European Union. 18 – On the fundamental freedoms of the EC Treaty, see Case 36/74 Walrave and Koch [1974] ECR 1405; Case 13/76 Donà [1976] ECR 1333; Case C-415/93 Bosman [1995] ECR I‑4921; Joined Cases C-51/96 and C-191/97 Deliège [2000] ECR I-2549; and Case C-176/96 Lehtonen and Castors Brainen [2000] ECR I‑2681; on corresponding provisions in the Association Agreements, see also Case C-438/00 Deutscher Handballbund [2003] ECR I‑4135, and Case C‑265/03 Simutenkov [2005] ECR I‑2579. 19 – See Meca-Medina, cited in footnote 16, and Case T-193/02 Piau v Commission [2005] ECR II‑209, upheld in Case C-171/05 P Piau v Commission [2006] ECR I-37. Some Advocates General had addressed these issues at an even earlier date; see in particular the Opinions of Advocate General Lenz in Bosman (points 253 to 286), Advocate General Cosmas in Deliège (points 103 to 114) and Advocate General Alber in Lehtonen and Castors Braine (points 101 to 114), each cited in footnote 18. 20 – Case C-280/06 Ente Tabacchi Italiani and Others [2007] ECR I-0000, paragraph 38. 21 – See, inter alia, Case C-41/90 Höfner and Elser [1991] ECR I-1979, paragraph 21; Joined Cases C-264/01, C-306/01, C-354/01 and C-355/01 AOK Bundesverband and Others [2004] ECR I‑2493, paragraph 46; Case C-222/04 Cassa di Risparmio di Firenze [2006] ECR I‑289, paragraph 107; Case C-237/04 Enirisorse [2006] ECR I-2843, paragraph 28; and Ente Tabacchi Italiani and Others (cited in footnote 20, paragraph 38). 22 – Case C-309/99 Wouters [2002] ECR I-1577, paragraph 112. 23 – Case C-35/96 Commission v Italy [1998] ECR I-3851, paragraph 36; Joined Cases C-180/98 to C-184/98 Pavlov and Others [2000] ECR I-6451, paragraph 75; Case C-475/99 Ambulanz Glöckner [2001] ECR I‑8089, paragraph 19; Cassa di Risparmio di Firenze (cited in footnote 21, paragraph 108); and Enirisorse (cited in footnote 21, paragraph 29). 24 – See to this effect Enirisorse (cited in footnote 21, paragraph 30). 25 – As ELPA itself created ETHEAM for this purpose, ETHEAM’s activity must be attributed to ELPA (see in this regard Cassa di Risparmio di Firenze, cited in footnote 21, paragraph 110 et seq.). 26 – Joined Cases C-482/01 and C-493/01 Orfanopoulos and Oliveri [2004] ECR I-5257, paragraph 42; Case C-28/04 Tod’s [2005] ECR I‑5781, paragraph 14; and Case C-246/04 Turn- und Sportunion Waldburg [2006] ECR I-589, paragraph 21. 27 – See also points 24 to 27 of this Opinion, above. 28 – Bosman (paragraph 106), Deliège (paragraph 41) and Lehtonen and Castors Braine (paragraph 32), each cited in footnote 18; see also the White Paper on Sport (cited in footnote 13), section 2 of which looks at the social role of sport. 29 – The fact that each individual activity must be examined is also shown by Meca-Medina (cited in footnote 16, paragraphs 28 to 31). 30 – Case C-244/94 Fédération française des sociétés d’assurance and Others [1995] ECR I‑4013, paragraphs 17 and 18; Case C-67/96 Albany [1999] ECR I-5751, paragraphs 84 to 87; and Cassa di Risparmio di Firenze (cited in footnote 21, paragraph 123). 31 – Cassa di Risparmio di Firenze (cited in footnote 21, paragraphs 120 and 121). 32 – Wouters (cited in footnote 22, paragraph 57). 33 – On the meaning of marketing, see points 33 and 34 of this Opinion, above. 34 – On the pursuit of a social objective, see Pavlov (cited in footnote 23, paragraph 118); Case C‑218/00 Cisal [2002] ECR I‑691, paragraph 37; and Cassa di Risparmio di Firenze (cited in footnote 21, paragraph 124); as well as, similarly, Enirisorse (cited in footnote 21, paragraph 34); on the absence of a profit-making aim see Joined Cases 209/78 to 215/78 and 218/78 van Landewyck and Others v Commission [1980] ECR 3125, paragraph 88; Fédération française des sociétés d’assurance and Others (cited in footnote 30, paragraph 21); Albany (cited in footnote 30, paragraph 85); Pavlov (cited in footnote 23, paragraph 117); Cassa di Risparmio di Firenze (cited in footnote 21, paragraph 123); and Case C-119/06 Commission v Italy [2007] ECR I-0000, paragraph 37. 35 – Opinion of Advocate General Lenz in Bosman (cited in footnote 18, point 255). 36 – Joined Cases C-159/91 and C-160/91 Poucet and Pistre [1993] ECR I-637; Cisal (cited in footnote 34); and AOK Bundesverband (cited in footnote 21). 37 – Poucet and Pistre (cited in footnote 36, paragraphs 18 and 19); Cisal (cited in footnote 34, paragraph 45); and AOK Bundesverband (cited in footnote 21, in particular paragraphs 47 and 49). 38 – Case C-364/92 SAT Fluggesellschaft [1994] ECR I‑43, paragraphs 30 and 31; Case C-343/95 Calì [1997] ECR I-1547, paragraphs 22 and 23; and Wouters (cited in footnote 22, paragraph 57). 39 – See to this effect Case 118/85 Commission v Italy [1987] ECR 2599, paragraph 7; Calì (cited in footnote 38, paragraphs 16 and 18); and Case C-82/01 P Aéroports de Paris v Commission [2002] ECR I‑9297, paragraphs 74 and 75, second sentence; see also my Opinion in Case C‑134/03 Viacom Outdoor [2005] ECR I‑1167, point 72. 40 – Case C-260/89 ERT [1991] ECR I‑2925, paragraph 31; see to the same effect Case C-203/96 Dusseldorp and Others [1998] ECR I-4075, paragraph 60; Case C-462/99 Connect Austria [2003] ECR I‑5197, paragraph 79; and Case T-228/97 Irish Sugar v Commission [1999] ECR II‑2969, paragraph 99. Even component territories of Member States may constitute a substantial part of the common market; see Ambulanz Glöckner (cited in footnote 23, paragraph 38). 41 – Case 27/76 United Brands v Commission [1978] ECR 207, paragraph 65; Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, paragraph 38; Case 322/81 Michelin v Commission [1983] ECR 3461, paragraph 30; and 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. 42 – See in this regard point 56 of this Opinion, above. 43 – Joined Cases 56/64 and 58/64 Consten and Grundig v Commission [1966] ECR 299, 341; Joined Cases 6/73 and 7/73 Commercial Solvents v Commission [1974] ECR 223, paragraph 31; and Ambulanz Glöckner (cited in footnote 23, paragraph 47). 44 – Ambulanz Glöckner (cited in footnote 23, paragraph 48), as well as – in relation to Article 81 EC – Case 31/80 L’Oréal [1980] ECR 3775, paragraph 18; Case C-295/04 Manfredi [2006] ECR I‑6619, paragraph 42; Case C-238/05 Asnef-Equifax [2006] ECR I‑11125, paragraph 34; and Case C-407/04 P Dalmine v Commission [2007] ECR I‑829, paragraph 90. 45 – Michelin v Commission (cited in footnote 41, paragraph 104), Höfner and Elser (cited in footnote 21, paragraph 32) and Case C-55/96 Job Centre [1997] ECR I-7119, paragraph 36. 46 – Commission Notice ‘Guidelines on the effect on trade concept contained in Articles 81 and 82 of the Treaty’ (OJ 2004 C 101, p. 81, the ‘Commission Guidelines’), paragraph 43. 47 – See, for example, Manfredi (paragraphs 47 and 48) and Asnef-Equifax (paragraphs 39 and 40), cited in footnote 44. 48 – Article 10.7 of the EAKM rules governing the sport of motorcycling (see point 10 of this Opinion). 49 – Joined Cases C-215/96 and C-216/96 Bagnasco and Others [1999] ECR I‑135, paragraph 60; Ambulanz Glöckner (cited in footnote 23, paragraph 48), as well as – in relation to Article 81 EC – Case 22/71 Béguelin Import [1971] ECR 949, paragraph 16; Case C-306/96 Javico [1998] ECR I‑1983, paragraph 16; Manfredi (cited in footnote 44, paragraph 42); Asnef-Equifax (cited in footnote 44, paragraph 34); and Dalmine v Commission (cited in footnote 44, paragraph 90). 50 – Bagnasco (cited in footnote 49, paragraph 47), Manfredi (cited in footnote 44, paragraph 43) and Asnef-Equifax (cited in footnote 44, paragraph 35). 51 – Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraph 371; Case C-179/90 Merci convenzionali porto di Genova [1991] ECR I‑5889, paragraph 15, second sentence); and Case C-163/96 Raso and Others [1998] ECR I‑533, paragraph 26, second sentence. The overall volume of the market, considered in isolation, is likewise by no means decisive in determining whether a substantial part of the common market is affected. In the present case, as has been said, it follows not least from the geographical extent of the markets concerned, that is to say the territory of a Member State, that a substantial part of the common market is affected (see also in this regard point 57 of this Opinion and the case-law cited there). 52 – See to this effect Javico (cited in footnote 49, paragraph 26). See also the Commission Guidelines, in paragraph 52 of which – concerning Article 81 EC – the decisive factors are said to be the market share and annual turnover of the undertakings concerned in relation to the markets and/or goods affected by an agreement. 53 – See also in this regard the Commission Guidelines, paragraph 45. 54 – Case 22/78 Hugin Kassaregister and Hugin Cash Registers v Commission [1979] ECR 1869, paragraph 17; Ambulanz Glöckner (cited in footnote 23, paragraphs 47 and 49); Manfredi (cited in footnote 44, paragraph 41); Asnef-Equifax (cited in footnote 44, paragraph 33); and Dalmine v Commission (cited in footnote 44, paragraphs 89 and 91); see to the same effect Case 30/87 Bodson [1988] ECR 2479, paragraph 24; and Case 247/86 Alsatel [1988] ECR 5987, paragraph 11. 55 – See to the same effect – although in relation to cartels extending over the entire territory of a Member State – Case 8/72 Vereeniging van Cementhandelaren v Commission [1972] ECR 977, paragraph 29; Manfredi (cited in footnote 44, paragraph 45); and Asnef-Equifax (cited in footnote 44, paragraph 37); see, similarly, Case C-94/04 Cipolla [2006] ECR I‑11421, paragraph 45. 56 – Case C-202/88 France v Commission (‘Telecommunications Terminals Equipment’) [1991] ECR I‑1223, paragraph 24. 57 – For the sake of simplicity, I shall henceforth use only the term exclusive right. 58 – See to this effect, for example, Job Centre (cited in footnote 45, paragraph 29). 59 – Höfner and Elser (cited in footnote 21, paragraph 29); ERT (cited in footnote 40, paragraph 37); Merci convenzionali porto di Genova (cited in footnote 51, paragraph 17); Case C-323/93 Centre d’insémination de la Crespelle [1994] ECR I‑5077, paragraph 18; Rasoand Others (cited in footnote 51, paragraph 27 and 28); Albany (cited in footnote 30, paragraph 93); Pavlov (cited in footnote 23, paragraph 127); Ambulanz Glöckner (cited in footnote 23, paragraph 39); and Case C-380/05 Centro Europa7 [2008] ECR I-0000, paragraph 60; see, similarly, Connect Austria (cited in footnote 40, paragraph 80). 60 – Job Centre (cited in footnote 45, paragraph 36) and Rasoand Others (cited in footnote 51, paragraph 31). 61 – See to this effect Case C-95/04 P British Airways v Commission [2007] ECR I‑2331, paragraphs 84 and 85; see to the same effect – in relation to Article 81 EC – Wouters (cited in footnote 22, paragraph 97). 62 – On the question of taking into account the particular characteristics of sport in the application of Community law, see the two Declarations on Sport and the White Paper on Sport (cited in footnotes 11 to 13). 63 – See in this regard paragraphs 2 to 4 of ELPA/ETHEAM’s letter to MOTOE, reproduced in point 17 of this Opinion. 64 – Meca-Medina (cited in footnote 16, paragraphs 28, 31 and 42 to 55). 65 – See also in this regard paragraph 4 of ELPA/ETHEAM’s letter to MOTOE, reproduced in point 17 of this Opinion. 66 – See in this regard the White Paper on Sport (cited in footnote 13, section 4.1). 67 – Pyramid structure does not necessarily mean a single association structure: in boxing, for example, a number of international associations co-exist. 68 – See in this regard point 87 of this Opinion, above, and the case-law cited in footnote 59. 69 – On ELPA’s dominant position, see points 59 and 61 of this Opinion, above. 70 – See in this regard Raso and Others (cited in footnote 51, paragraph 28). 71 – The concept of undistorted competition is expressly referred to in Article 3(1)(g) EC, but also underlies the rules on competition contained in Articles 81 EC to 89 EC. 72 – France v Commission (‘Telecommunications Terminals Equipment’, cited in footnote 56, paragraph 51), and Case C-18/88 GB-Inno-BM [1991] ECR I‑5941, paragraph 25; see to the same effect ERT (cited in footnote 40, paragraph 37) and Raso and Others (cited in footnote 51, paragraphs 29 to 31). 73 – See to the same effect France v Commission (‘Telecommunications Terminals Equipment’, cited in footnote 56, paragraph 51) and GB-Inno-BM (cited in footnote 72, paragraph 25). 74 – See in this regard points 90 to 95 of this Opinion, above. 75 – See to this effect France v Commission (‘Telecommunications Terminals Equipment’, cited in footnote 56, paragraph 52) and GB-Inno-BM (cited in footnote 72, paragraph 26). 76 – See to this effect Albany (cited in footnote 30, paragraphs 117 and 121); on an effective legal remedy, see also Case 222/86 Heylens and Others [1987] ECR 4097, paragraphs 14 and 15, and Case C-432/05 Unibet [2007] ECR I‑2271, paragraphs 37 and 38. However, Community law does not require an individual legal remedy against acts which are merely preparatory to an official authorisation, for example, against the grant or refusal of consent by an association such as ELPA (see to this effect Heylens, paragraph 16). 77 – Case C-213/89 Factortame and Others [1990] ECR I-2433, paragraph 21; Case C-226/99 Siples [2001] ECR I-277, paragraph 19; and Unibet (cited in footnote 76, paragraph 67). 78 – Greek Council of State. 79 – See in this regard the case-law cited in footnote 26. 80 – The revenue-producing monopolies also referred to in Article 86(2) EC are not relevant in a case such as this. 81 – See in this regard Case 127/73 BRT and Société belge des auteurs, compositeurs et éditeurs, ‘BRT II’, [1974] ECR 313, paragraph 20; Case 66/86 Ahmed Saeed Flugreisen and Silver Line Reisebüro [1989] ECR 803, paragraph 55; and Case C-159/94 Commission v France [1997] ECR I‑5815, paragraph 65. 82 – On the criterion of the necessity of the preferential right, see Case C-320/91 Corbeau [1993] ECR I‑2533, paragraphs 13 and 14; Case C-157/94 Commission v Netherlands [1997] ECR I‑5699, paragraph 53; Case C-209/98 Sydhavnens Sten & Grus [2000] ECR I‑3743, paragraph 77; and Ambulanz Glöckner (cited in footnote 23, paragraph 57). 83 – Article 16 EC also refers to the concrete operation of services of general economic interest; it provides that the Commission and the Member States must ‘take care that such services operate on the basis of principles and conditions which enable them to fulfil their missions’. 84 – On the distinction between economic and public activities, see SAT Fluggesellschaft (paragraphs 30 and 31), Calì (paragraphs 22 and 23) and point 49 of this Opinion.