Judgment — ECLI:EU:T:2005:22
Date: 2005-01-26
Language of the case: French
Court formation: Fourth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Freedom to provide services;Dominant position
Concepts: Applications by natural or legal persons;Intervention;Conditions for exemption;Bringing matters before the Commission;Definition of undertaking;Agreements of undertakings, decisions by associations of undertakings and concerted practices;Definition
Procedure: Action for annulment - unfounded
Origin: France

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 LehtonenandCastors 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 * Language of the case: French.