Opinion of the Advocate General — ECLI:EU:C:2022:988
Date: 2022-12-15
Language of the case: English
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment - unfounded;Appeal - unfounded;Appeal - inadmissible;Appeal - successful

summary rejection, without examination, by the General Court of its various arguments and items of evidence relating to the intention that led it to adopt the prior authorisation and eligibility rules (paragraph 121 of the judgment under appeal) and to the application and effects of those rules on the relevant market and the related market of figure skating (paragraphs 115 to 117 of the judgment under appeal). However, that line of argument must be rejected in the light of the case-law referred to in paragraphs 98, 99, 106 and 107 of the present judgment. 148 Thus, the General Court did not commit any error of law or of legal characterisation of the facts in finding that the Commission had correctly classified the prior authorisation and eligibility rules as having as their object the restriction of competition, within the meaning of Article 101(1) TFEU. The fact that, as the ISU moreover submits, that court carried out a joint examination, inter alia in paragraphs 101 to 104 and 108 of the judgment under appeal, of the separate question of whether those rules could nevertheless be regarded, in the light of the case-law cited in paragraph 111 of the present judgment, as not falling within the scope of that provision, whereas that case-law is irrelevant in situations involving conduct having as its object the restriction of competition, as is apparent from paragraphs 113 and 114 of this judgment has, in any event, no bearing on the merits of the reasoning referred to in paragraph 140 of this judgment. 149 Consequently, the first ground of appeal must be rejected. B. The second ground of appeal 1. Arguments of the parties 150 By its second ground of appeal, the ISU complains that the General Court misconstrued and failed to examine the fourth plea in law and the items of evidence submitted in support of it, in disregard of its duty under Article 263 TFEU. 151 In that regard, it maintains, first, that that plea in law had a precise and limited purposeconsisting of claiming that its refusal to authorise the planned international event intended to be held in Dubai, which was submitted to it by a third-party organiser, did not fall within the scope of Article 101(1) TFEU, given that that refusal had a legitimate objective consisting of upholding the ban on betting set out in its Code of Ethics and could not be regarded as intending to exclude a potential competitor from the speed skating market, as the Commission found in the decision at issue. 152 Second, the ISU maintains that the General Court altered the scope of that plea in law by considering, in paragraph 99 of the judgment under appeal, that it entailed settling the general question whether the prior authorisation and eligibility rules were justified by an objective consisting in protecting the integrity of the sporting disciplines governed by the ISU. 153 Third, the ISU complains that the General Court, at the same time, acknowledged, in paragraph 102 of the judgment under appeal, that it was entitled to establish rules intended to prevent betting from distorting international skating events and refused, in paragraph 127 of that judgment, to rule on the lawfulness, in the light of Article 101(1) TFEU, of the application of those rules to the planned international event referred to in the decision at issue, on the ground that that application was not classified as an infringement by the Commission, but merely referred to in order to illustrate the way in which those rules could be applied in practice. It is apparent from the recitals and the operative part of that decision that the application of the prior authorisation and eligibility rules to the planned event in question was classified as an infringement of Article 101(1) TFEU, in the same way as their adoption, and that that legal classification was made by the Commission following an examination mainly, or exclusively, concerning the refusal of the ISU to authorise that planned event. In those circumstances, the General Court should have examined all the arguments and items of evidence submitted to it by the ISU in order to challenge that classification and to establish that its conduct was justified, which that court, however, failed to do. 154 The Commission, supported by Mr Tuitert, Mr Kerstholt and EU Athletes, disputes all of those arguments. 2. Findings of the Court 155 It must be noted, at the outset, that, even if the General Court was in error about the scope of the fourth plea in law raised by the ISU, in considering incorrectly that it was seised of the general question whether the prior authorisation and eligibility rules were justified by a legitimate objective and not the specific question whether the application of those rules to the international speed skating event referred to by that association was justified by such a legitimate objective, the present ground of appeal is, in any event, ineffective. 156 As is apparent from the reasoning set out above in the present judgment, the General Court was correct to confirm the merits of the Commission’s assessment to the effect that the prior authorisation and eligibility rules, considered as such and therefore independently of their application to specific cases, had as their object the restriction of competition. In addition, the existence of a potential legitimate objective, even if established, is irrelevant in that context, as follows from paragraphs 107, 113 and 114 of the present judgment. 157 Since the two grounds of appeal have been rejected, the appeal must therefore be dismissed in its entirety. IV. The cross-appeal 158 In support of their cross-appeal, Mr Tuitert, Mr Kerstholt and EU Athletes rely on two grounds of appeal alleging, in essence, errors of law in the interpretation and application in the present case of Article 101 TFEU. A. The first ground of appeal 1. Arguments of the parties 159 By their first ground of appeal, which contains two parts, Mr Tuitert, Mr Kerstholt and EU Athletes, supported by the Commission, claim that the General Court erred in law in finding that the arbitration rules established by the ISU could not be regarded as reinforcing the infringement of Article 101(1) TFEU, referred to in Article 1 of the decision at issue. 160 By the first part of that ground of appeal, Mr Tuitert, Mr Kerstholt and EU Athletes argue that the General Court’s finding that the arbitration rules could be justified by a legitimate interest relating to the specific nature of the sport is vitiated by errors of law. 161 In that regard, they submit, in the first place, that it follows from those rules that athletes who are affected by an ineligibility decision adopted by the ISU are required to bring their dispute with that association exclusively before the CAS. They also assert that those athletes are required to accept all rules adopted by the ISU, including those establishing such a dispute resolution mechanism, in order to be capable of being permitted to take part in international skating competitions organised by that association or by national skating associations that are members thereof. 162 In the second place, they maintain that the CAS is an arbitration body established outside the European Union, whose members are appointed by international sporting associations such as the ISU or, in practice, subject to the decisive influence of those associations and that appeals against the awards of that body may be brought exclusively before the Tribunal fédéral (Federal Supreme Court, Switzerland), whose review is limited to confirmation of the observance of public policy within the meaning defined by that court, which excludes EU competition rules. 163 They add that, while the national courts of the European Union theoretically retain a role to play in the enforcement of those awards, the judicial review that they may carry out in respect of those awards in such a context is, first, fragmented and therefore costly (in so far as an athlete must challenge the enforcement of the award concerning him or her in each of the Member States in which he or she intends to take part in a competition), second, belated and even ineffective (in so far as the ruling sought is generally delivered after the competition is held and where the athlete is prevented from applying for protective measures in the intervening period), third, limited or marginal (in so far as a ruling can only be regarded as contrary to EU public policy in the event of a flagrant, effective and concrete breach of the competition rules), and fourth and in any event, lacking actual force (in so far as the ISU has the power to enforce a ruling relating to a given athlete itself or to require its members to do so, by preventing him or her from taking part in the international events that it or they organise). 164 In the third and last place, Mr Tuitert, Mr Kerstholt and EU Athletes submit that the General Court erred in law in holding, in paragraph 156 of the judgment under appeal, that the mechanism established by the arbitration rules ‘may be justified by legitimate interests linked to the specific nature of the sport’. 165 They assert that the General Court, in essence, relied in an overall and abstract manner on the specific nature of sport in general, whereas the rules at issue in the present case apply in the specific context of speed skating as an economic activity. The exclusive and mandatory recourse to arbitration cannot be justified in the same way in both cases. Furthermore, the reasoning of the General Court is all the more problematic since, unlike national courts or the EU Courts, an arbitral tribunal outside the EU court system, such as the CAS, has no obligation to ensure compliance with the EU competition rules, which the CAS interprets and applies, moreover, in a manifestly incorrect way. 166 The Commission, which supports all of those arguments, submits, more generally, that the General Court’s reasoning disregards the specific arrangements under the arbitration mechanism established by the ISU. In particular, unlike a contractual arbitration mechanism freely agreed by the parties, the arbitration rules established by the ISU are in practice imposed on athletes unilaterally, exclusively and on pain of a ban on taking part in events organised by the ISU, a ban which equates, ultimately, to it being impossible for the parties concerned to carry out their profession. 167 By the second part of their ground of appeal, Mr Tuitert, Mr Kerstholt and EU Athletes claim that the General Court erred in law in holding, in essence, in paragraphs 157 to 164 of the judgment under appeal, that the arbitration rules were not capable of undermining the effectiveness of the EU competition rules or of making it more difficult for athletes affected by ineligibility decisions adopted on anticompetitive grounds to exercise their right to effective judicial protection, with the result that those rules could not be regarded as reinforcing the infringement identified in Article 1 of the decision at issue. 168 In that regard, in the first place, they submit that the CAS is an arbitration body outside the EU legal order, before adding that its actual independence and impartiality in relation to international sporting associations such as the ISU are doubtful. They also maintain that CAS awards can only be subject to marginal judicial review without the EU competition rules being taken into account in any way, before a court which, moreover, is not entitled to refer questions to the Court of Justice for a preliminary ruling. In addition, they reiterate that the arbitration rules are, in practice, imposed unilaterally on athletes. 169 In the light of those factors, they argue that those rules should have been considered by the General Court to be capable of adversely affecting compliance with Articles 101 and 102 TFEU, and of making it more difficult for athletes to exercise their right to effective judicial protection, thus reinforcing the infringement identified in Article 1 of the decision at issue. 170 In the second place, Mr Tuitert, Mr Kerstholt and EU Athletes claim that the General Court downplayed the effect of those rules on athletes’ right to effective judicial protection by referring to the opportunity they have to bring actions for damages before the national courts having jurisdiction in the event that they are affected by an ineligibility decision adopted on anticompetitive grounds. Although such actions may contribute to ensuring ex post judicial protection for individuals harmed by an infringement of the competition rules and to enforcing the effectiveness of those rules (judgments of 20 September 2001, Courage and Crehan, C‑453/99, EU:C:2001:465, and of 14 March 2019, Skanska Industrial Solutions and Others, C‑724/17, EU:C:2019:204), they cannot compensate for the absence of any legal means for them to obtain an effective ex ante remedy. 171 In addition, in the present case, Mr Tuitert, Mr Kerstholt and EU Athletes assert that it is apparent that that remedy consists, first and foremost, for a skater who is subject to an ineligibility decision adopted on anticompetitive grounds, in obtaining its annulment promptly along with the corresponding opportunity to resume his or her professional career and not merely to be awarded damages several years later in order to compensate for the unlawful ban on carrying out that activity and the loss of career and corresponding income. That is particularly the case since the CAS procedural rules prohibit applicants from seeking protective measures and several national courts have already dismissed actions for damages and the grounds that they should be regarded as falling within the exclusive jurisdiction conferred on that body under the arbitration rules. 172 In the third and last place, the cross-appellants claim that the General Court made a similar error of reasoning in holding that the opportunity for athletes concerned by an ineligibility decision adopted on anticompetitive grounds to lodge complaints before the Commission and the national competition authorities (‘the NCAs’) is satisfactory. It follows from settled case-law that the Commission and the NCAs have broad discretion to deal with complaints submitted to them and that they cannot therefore be required to investigate by classifying the facts complained of in the light of the competition rules (judgments of 18 October 1979, GEMA v Commission, 125/78, EU:C:1979:237, and of 19 September 2013, EFIM v Commission, C‑56/12 P, EU:C:2013:575). 173 The Commission supports all those arguments and submits that the General Court also clearly misunderstood the decision at issue, in paragraph 148 of the judgment under appeal, in finding that the reasoning in that decision consisted in classifying the arbitration rules as an ‘aggravating circumstance’ within the meaning accorded to that expression in the context of determining the fines that may be imposed in respect of an infringement of Articles 101 and 102 TFEU. Irrespective of the fact that no fine was imposed on the ISU in the present case, the Commission asserts that , in its examination of the merits, it merely stated that those rules reinforced the restriction of competition by object deriving from the prior authorisation and eligibility rules, by supporting the possibility that those rules give to that association to exclude all effective competition on the market on which international speed skating events are organised and marketed. 174 In response, the ISU which addresses the two parts of the ground of appeal together maintains, in the first place, that it is ineffective. As the General Court found in paragraphs 132 and 137 of the judgment under appeal, the Commission merely expressed its view on the arbitration rules in the decision at issue for the sake of completeness. 175 In the second place, the ISU maintains, in the alternative, that the ground of appeal should be dismissed as inadmissible in so far as it alters the subject matter of the dispute before the General Court. Neither that dispute nor the decision at issue concerned the very legitimacy of the conferral of exclusive jurisdiction on the CAS. At the very least, some of the arguments put forward in support of that ground of appeal should be rejected as inadmissible, either because they are new (such as those relating to the distinction to be made between the economic and non-economic aspects of the sport, the independence of the CAS or even the detailed rules governing the review of CAS awards by the Tribunal fédéral (Federal Supreme Court), or because they merely reproduced elements featuring in the decision at issue or in the first-instance pleadings without explaining how the General Court erred in law or distorted the facts in the judgment under appeal (such as those relating to the insufficient nature, in the light of the right to effective judicial protection, of the possibility that athletes have to bring actions for damages before the national courts or to lodge complaints before the Commission or the NCAs). 176 In the third and last place, the ISU asserts that that ground of appeal is, in any event, unfounded. Both the Commission, in the decision at issue, and the General Court, in the judgment under appeal, correctly acknowledged that the use of an exclusive and mandatory arbitration mechanism is a generally accepted method of resolving disputes and that it could, in the present case, be justified in the light of the need to ensure the uniform and effective application of the rules established by the ISU for all athletes practising skating. 2. Findings of the Court (a) The admissibility and effectiveness of the ground of appeal 177 An appellant is entitled to lodge an appeal relying on grounds which arise from the judgment under appeal itself and seek to criticise, in law, its correctness (judgments of 29 November 2007, Stadtwerke Schwäbisch Hall and Others v Commission, C‑176/06 P, EU:C:2007:730, paragraph 17, and of 25 January 2022, Commission v European Food and Others, C‑638/19 P, EU:C:2022:50, paragraph 77). 178 In the present case, the cross-appellants seek, by their first ground of appeal, to call into question the legal merits of the grounds by which the General Court held, in paragraphs 154 and 156 to 164 of the judgment under appeal, that the Commission had erred in law in finding that the arbitration rules reinforced the restriction of competition by ‘object’ to which the prior authorisation and eligibility rules gave rise. 179 Furthermore, the grounds of the judgment under appeal referred to in that first ground of the cross-appeal are those that led the General Court to uphold the sixth plea in law and, in part, the seventh plea in law raised at first instance. Therefore, those grounds constitute, as is apparent from paragraphs 171 to 174 and 180 of that judgment, support for the operative part of that judgment in so far as it annulled in part Article 2 of the decision at issue, to the extent that that article refers to the arbitration rules. Consequently, and contrary to what the ISU claims, that ground of appeal is not ineffective. 180 That being so, since the Court of Justice’s jurisdiction on an appeal is nonetheless limited to assessing the findings of law on the pleas argued before the General Court, it cannot rule, in this context, on grounds or arguments that were not put forward at first instance (see, to that effect, judgments of 30 March 2000, VBA v VGB and Others, C‑266/97 P, EU:C:2000:171, paragraph 79, and of 25 January 2022, Commission v European Food and Others, C‑638/19 P, EU:C:2022:50, paragraph 80). 181 In the present case, the ISU correctly contends that the arguments of the cross-appellants concerning the legal consequences that may arise from a potential lack of independence of the CAS do not form part of the arguments put forward before the General Court or, moreover, of those based on which the Commission adopted the decision at issue. 182 Those arguments must therefore be rejected as inadmissible. 183 By contrast, the other arguments, whose admissibility the ISU disputes, which relate to all the recitals of the decision at issue which the parties challenged at first instance and which the cross-appellants and the Commission complain that the General Court failed to take into account or incorrectly took into account when it ruled on the plea in law put forward by the ISU on the arbitration rules, are admissible. (b) Substance 184 In the first place, it should be noted that, in recitals 268 to 286 of the decision at issue and more particularly in recitals 269 to 271, 277 and 281 to 283 of that decision, the Commission considered that the arbitration rules, while they did not in themselves constitute an infringement of Article 101(1) TFEU, should however be regarded, given their content, their conditions for implementation and their scope, in the legal and economic context to which they belong, as reinforcing the infringement identified previously by the Commission. More specifically, the Commission found in those recitals, in essence, that by making judicial review, in the light of EU competition law, of arbitral awards by which the CAS rules on the validity of decisions adopted by the ISU by virtue of discretionary powers conferred on it by the prior authorisation and eligibility rules more difficult, the arbitration rules reinforced the infringement of EU law connected with the existence of such powers. In particular, the Commission found that that judicial review was entrusted to a court established in a third country, thus outside the European Union and its legal order, and that, according to the case-law of that court, such awards could not be reviewed in the light of the EU competition rules. In so doing, the Commission, ultimately, complained not of the existence, organisation or operation of the CAS as an arbitration body, but rather of the legal immunity enjoyed by the ISU, in its view, in the light of EU competition law, in the exercise of its decision-making and sanctioning powers, to the detriment of persons who may be affected by the lack of a framework for those powers and the discretionary nature which derives therefrom. 185 In the second place, there are, in essence, four grounds that led the General Court to take the view that that reasoning on the part of the Commission was vitiated by errors of law. First, that court held that the Commission had neither called into question the very possibility of recourse to arbitration to settle certain disputes nor considered that the conclusion of an arbitration clause in itself restricted competition (paragraph 154 of the judgment under appeal). Second, it stated that nor had the Commission considered that the arbitration rules infringed the right to a fair hearing as such (paragraph 155 of that judgment). Third, it considered that by conferring binding and exclusive jurisdiction on the CAS to review decisions adopted by the ISU by virtue of its powers in respect of prior authorisation and sanctions, the arbitration rules could be justified by legitimate interests linked to the specific nature of the sport, consisting of enabling a single, specialised court to rule, in a quick, economic and uniform manner, on a multiplicity of disputes, often having an international dimension, to which the exercise of high-level professional sporting activity may give rise (paragraph 156 of that judgment). Fourth, the General Court stressed that athletes and entities or undertakings that plan to organise international speed skating events in competition with those organised by the ISU could not only bring actions for damages before the national courts but also lodge complaints with the Commission and the NCAs for breach of the rules of competition (paragraphs 157 to 161 of that judgment). 186 It must be observed that the first two of those grounds, which are not disputed before the Court of Justice, are not such as to justify the decision to annul in part the decision at issue taken by the General Court since they do not concern the assessments that led the Commission to call into question the arbitration rules and they are therefore not such as to call into question the merits of those assessments. 187 By contrast, the cross-appellants and the Commission are correct in maintaining that the third and fourth of those grounds are incorrect in law. 188 First, the general and undifferentiated assessment that the arbitration rules may be justified by legitimate interests linked to the specific nature of the sport, in so far as they confer on the CAS mandatory and exclusive jurisdiction to review decisions that the ISU may adopt by virtue of its powers in respect of prior authorisation and sanctions, disregards, as the cross-appellants and the Commission essentially argue, the requirements that must be satisfied for an arbitration mechanism such as that at issue in the present case to be capable of being regarded, on the one hand, as allowing effective compliance with the public policy provisions that EU law contains to be ensured and, on the other hand, as being compatible with the principles underlying the judicial architecture of the European Union. 189 In that regard, it must be noted that, as is common ground between the parties and as the General Court observed in paragraphs 156, 159 and 160 of the judgment under appeal, the arbitration rules imposed by the ISU concern, in particular, two types of disputes which may arise in the context of economic activities consisting of (i) seeking to organise and market international speed skating events and (ii) seeking to take part in such competitions as a professional athlete. Those rules therefore apply to disputes concerning the exercise of a sport as an economic activity and, on that basis, come under EU competition law. Therefore, they must comply with EU competition law for the reasons set out in paragraphs 91 to 96 of the present judgment, in so far as they are implemented in the territory in which the EU and FEU Treaties apply, irrespective of the place where the entities that adopted them are established (judgments of 25 November 1971, Béguelin Import, 22/71, EU:C:1971:113, paragraph 11; of 27 September 1988, Ahlström Osakeyhtiö and Others v Commission, 89/85, 104/85, 114/85, 116/85, 117/85 and 125/85 to 129/85, EU:C:1988:447, paragraph 16; and of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraphs 43 to 45). 190 It is, consequently, only the implementation of such rules in the context of such disputes and in the territory of the European Union that is at issue in the present case and not the implementation of those rules in a territory other than the European Union, their implementation in other types of disputes, such as disputes concerning merely the sport as such and therefore not falling under EU law, or, a fortiori, the implementation of the arbitration rules in different areas. 191 Furthermore, as follows from paragraphs 181 and 184 of the present judgment, those rules are at issue, in the present case, not to the extent that they subject the review at first instance of decisions issued by the ISU to the CAS as an arbitration body, but only to the extent that they subject the review of the arbitral awards made by the CAS and the last-instance review of decisions of the ISU to the Tribunal fédéral (Federal Supreme Court), that is to say, a court of a third State. 192 In that regard, the Court of Justice has consistently held that Article 101 and 102 TFEU are provisions having direct effect which create rights for individuals which national courts must protect (judgments of 30 January 1974, BRT and Société belge des auteurs, compositeurs et éditeurs, 127/73, EU:C:1974:6, paragraph 16, and of 14 March 2019, Skanska Industrial Solutions and Others, C‑724/17, EU:C:2019:204, paragraph 24) and which are a matter of EU public policy (see, to that effect, judgment of 1 June 1999, Eco Swiss, C‑126/97, EU:C:1999:269, paragraphs 36 and 39). 193 That is why, while noting that an individual may enter into an agreement that subjects, in clear and precise wording, all or part of any disputes relating to it to an arbitration body in place of the national court that would have had jurisdiction to rule on those disputes under the applicable national law, and that the requirements relating to the effectiveness of the arbitration proceedings may justify the judicial review of arbitral awards being limited (see, to that effect, judgments of 1 June 1999, Eco Swiss, C‑126/97, EU:C:1999:269, paragraph 35, and of 26 October 2006, Mostaza Claro, C‑168/05, EU:C:2006:675, paragraph 34), the Court has nevertheless pointed out that such judicial review must, in any event, be able to cover the question whether those awards comply with the fundamental provisions that are a matter of EU public policy, which include Articles 101 and 102 TFEU (see, to that effect, judgment of 1 June 1999, Eco Swiss, C‑126/97, EU:C:1999:269, paragraph 37). Such a requirement is particularly necessary when such an arbitration mechanism must be regarded as being, in practice, imposed by a person governed by private law, such as an international sports association, on another, such as an athlete. 194 In the absence of such judicial review, the use of an arbitration mechanism is such as to undermine the protection of rights that subjects of the law derive from the direct effect of EU law and the effective compliance with Articles 101 and 102 TFEU, which must be ensured – and would therefore be ensured in the absence of such a mechanism – by the national rules relating to remedies. 195 Compliance with that requirement for effective judicial review applies in particular to arbitration rules such as those imposed by the ISU. 196 The Court of Justice has held previously that, while having legal autonomy entitling them to adopt rules relating, inter alia to the organisation of competitions, their proper functioning and the participation of athletes in those competitions (see, to that effect, judgments of 11 April 2000, Deliège, C‑51/96 and C‑191/97, EU:C:2000:199, paragraphs 67 and 68, and of 13 June 2019, TopFit and Biffi, C‑22/18, EU:C:2019:497, paragraph 60), sports associations cannot, in doing so, limit the exercise of rights and freedoms conferred on individuals by EU law (see, to that effect, judgments of 15 December 1995, Bosman, C‑415/93, EU:C:1995:463, paragraphs 81 and 83, and of 13 June 2019, TopFit and Biffi, C‑22/18, EU:C:2019:497, paragraph 52), which include the rights that underlie Articles 101 and 102 TFEU. 197 For that reason, rules such as the prior authorisation and eligibility rules must be subject to effective judicial review as is apparent from paragraphs 127 and 134 of the present judgment. 198 That requirement of effective judicial review means that, in the event that such rules contain provisions conferring mandatory and exclusive jurisdiction on an arbitration body, the court having jurisdiction to review the awards made by that body may confirm that those awards comply with Articles 101 and 102 TFEU. In addition, it entails that court’s satisfying all the requirements under Article 267 TFEU, so that it is entitled, or, as the case may be, required, to refer a question to the Court of Justice where it considers that a decision of the Court is necessary concerning a matter of EU law raised in a case pending before it (see, to that effect, judgments of 23 March 1982, Nordsee, 102/81, EU:C:1982:107, paragraphs 14 and 15, and of 1 June 1999, Eco Swiss, C‑126/97, EU:C:1999:269, paragraph 40). 199 Thus, the General Court erred in law by merely finding, in an undifferentiated and abstract manner, that the arbitration rules ‘may be justified by legitimate interests linked to the specific nature of the sport’, in so far as they confer on ‘a specialised court’ the power to review disputes relating to the prior authorisation and eligibility rules, without seeking to ensure that those arbitration rules complied with all the requirements referred to in the preceding paragraphs of the present judgment and thus allowed for an effective review of compliance with the EU competition rules, even though the Commission correctly relied on those requirements in recitals 270 to 277, 282 and 283 of the decision at issue in concluding that those rules reinforced the infringement identified in Article 1 of that decision. 200 Second, that court also erred in law in holding, in paragraphs 157 to 161 of the judgment under appeal, that the effectiveness of EU law was ensured in full, given, on the one hand, the existence of remedies allowing recipients of a decision refusing to allow them to participate in a competition or of an ineligibility decision to seek damages for the harm caused to them by that decision before the relevant national courts and, on the other hand, the possibility of lodging a complaint with the Commission or an NCA. 201 As essential as it may be (see, in that regard, judgments of 20 September 2001, Courage and Crehan, C‑453/99, EU:C:2001:465, paragraphs 26 and 27, and of 14 March 2019, Skanska Industrial Solutions and Others, C‑724/17, EU:C:2019:204, paragraphs 25, 43 and 44), the fact that a person is entitled to seek damages for harm caused by conduct liable to prevent, restrict or distort competition cannot compensate for the lack of a remedy entitling that person to bring an action before the relevant national court seeking, as appropriate following the grant of protective measures, to have that conduct brought to an end, or where it constitutes a measure, the review and annulment of that measure, if necessary following a prior arbitration procedure carried out under an agreement that provides for such a procedure. The same applies to persons practising professional sport, whose career may be especially short, in particular where they practise that sport at a high level. 202 In addition, that fact cannot justify that right’s being formally preserved but, in practice, deprived of an essential part of its scope, as would be the case if the judicial review that can be carried out in respect of the conduct or measure in question was excessively limited in law or in fact, in particular because it cannot concern the public policy provisions of EU law. 203 More especially, the possibility of lodging a complaint with the Commission or an NCA cannot be relied on in order to justify the lack of a remedy such as that referred to in paragraph 201 of the present judgment. It must, moreover, be pointed out, as regards the Commission, that, as that institution and the cross-appellants correctly assert, Article 7 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1) does not give a person who lodges an application under that article the right to insist that a final decision as to the existence or non-existence of the infringement he or she alleges be taken (see, to that effect, of 19 September 2013, EFIM v Commission, C‑56/12 P, EU:C:2013:575, paragraphs 57 and the case-law cited). 204 The first ground of appeal is therefore well founded in its entirety. Consequently, the judgment under appeal must be set aside in so far as it annulled in part Article 2 of the decision at issue, to the extent that that article concerns the arbitration rules. B. The second ground of appeal 1. Arguments of the parties 205 By their second ground of appeal, Mr Tuitert, Mr Kerstholt and EU Athletes, supported by the Commission, claim that the General Court erred in refusing to take into account, for the purposes of categorising a restriction of competition by object in the present case, the fact that the prior authorisation and eligibility rules aimed, inter alia, to ensure the protection of the ISU’s economic interests. 206 In that regard, they argue, in the first place, that the General Court committed a manifest error or assessment as to the facts in paragraph 107 of the judgment under appeal in refusing to acknowledge that that aim was apparent from those rules both in the version adopted in 2014 and in that adopted in 2016. 207 In the second place, they maintain that the General Court made an incorrect legal classification of the facts, in paragraphs 107 and 109 of the judgment under appeal, in finding that such an aim was not, in itself, anticompetitive in nature. While it is in general permissible for an undertaking or association of undertakings engaged in an economic activity to promote its own economic interests, that court failed to draw the inferences from its own findings and assessments relating to the relevant legal and economic content, inter alia those made in paragraphs 70 and 114 of the judgment under appeal, from which it followed that the ISU combined a monopolistic economic activity on the market for the organisation and marketing of international speed skating events with regulatory, decision-making, control and sanctioning powers which placed it in a situation of conflict of interests requiring appropriate obligations, restrictions and review to be put in place. The General Court should have taken that situation into account and found that, in the light of that situation, the objective at issue in the present case was relevant for the purpose of finding a restriction of competition by object, as the Commission did. 208 The ISU disputes all those arguments. 2. Findings of the Court 209 It should be noted, at the outset, that, while finding, in paragraphs 107 and 109 of the judgment under appeal, that certain of the Commission’s assessments were incorrect, the General Court nevertheless ultimately held, in paragraph 111 of that judgment, that those errors had no effect on the legally well-founded conclusion of that institution that the prior authorisation and eligibility rules had as their object the restriction of competition. For that reason, the General Court dismissed the action brought by the ISU, in so far as it was directed against that aspect of the decision at issue. 210 Thus, the present ground of appeal concerns reasons set out in the ground of appeal which are not only for the sake of completeness, but which also form part of the reasoning that led the General Court to dismiss part of the ISU’s claim, and thus to give satisfaction, to that extent, to the Commission and Mr Tuitert, Mr Kerstholt and EU Athletes. By that ground of appeal, the latter parties, consequently, seek to obtain a substitution of grounds that is not capable of procuring them any advantage. An application of that kind is inadmissible (judgments of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 42, and of 9 November 2017, TV2/Danmark v Commission, C‑649/15 P, EU:C:2017:835, paragraph 61). 211 That ground of appeal must therefore be rejected as being inadmissible. 212 Therefore the cross-appeal must be upheld to the extent stated in paragraph 204 of the present judgment. 213 Consequently, the judgment under appeal must be set aside to the extent that it annulled in part the decision at issue. V. The action in Case T‑93/18 214 The first paragraph of Article 61 of the Statute of the Court of Justice of the European Union provides that, if the appeal is well founded and the Court quashes the decision of the General Court, it may in itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment. 215 In the present case, given that the Court of Justice has dismissed the appeal brought by the ISU against the judgment under appeal in so far as it rejected its claim seeking annulment of the part of the decision at issue concerning the prior authorisation and eligibility rules, the action in Case T‑93/18 exists only in so far as it is directed against that part of that decision which concerns the arbitration rules. 216 Since the sixth and seventh pleas in law at first instance, alleging infringement of Article 101 TFEU in so far as that article was applied to the arbitration rules, were the subject of an exchange of arguments before the General Court and the examination of those pleas does not require any further measure of organisation of procedure or inquiry to be taken in the case, the state of the proceedings is such that the Court of Justice may give final judgment on those pleas and should do so (see, by analogy, judgments of 8 September 2020, Commission and Council v Carreras Sequeros and Others, C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraph 130, and of 2 December 2021, Commission and GMB Glasmanufaktur Brandenburg v Xinyi PV Products (Anhui) Holdings, C‑884/19 P and C‑888/19 P, EU:C:2021:973, paragraph 104). A. Arguments of the parties 217 By its sixth plea in law at first instance, the ISU maintains, in essence, that the Commission erred in finding that the arbitration rules reinforced the anticompetitive nature by object of the prior authorisation and eligibility rules. 218 The ISU asserts that the mandatory use of a contractual arbitration mechanism is a generally accepted method for the settlement of disputes. In addition, in the present case, the CAS plays a fundamental role in the uniform application of sporting rules. Furthermore, the conferral of powers on that body, which took place during the administrative procedure that led the Commission to adopt the decision at issue, constitutes progress in relation to the ISU internal appeals process that existed up to that point. Lastly, the parties concerned have the option of challenging the recognition and enforcement of the awards made by that body before the relevant national courts, which can refer questions to the Court of Justice for a preliminary ruling concerning the interpretation of the EU competition rules. 219 More generally, according to the ISU, the findings of the Commission in that regard are irrelevant, since that institution itself recognises that the arbitration rules do not, in themselves, constitute an infringement. 220 By its seventh plea at first instance, the ISU claims, in essence, that the Commission was not empowered to impose corrective measures on it concerning the arbitration rules, since there was no link between those rules and the prior authorisation and eligibility rules. B. Findings of the Court 221 As is clear from paragraphs 199 and 204 of the present judgment, the Commission correctly relied, in recitals 270 to 277, 282 and 283 of the decision at issue, on the requirements referred to in paragraphs 188 to 198 of the present judgment to support its finding that, in view of their content, the conditions of their implementation and scope, in the legal and economic context of which they form a part, the arbitration rules reinforced the powers, which are not subject to any obligations, restrictions or appropriate judicial review and which therefore have an anticompetitive nature by object, held by that association under the prior authorisation and eligibility rules. 222 None of the arguments put forward by the ISU permit the view that such a finding is vitiated by any error, or more especially, by a manifest error. 223 In that respect, it is apparent from, on the one hand, the recitals of the decision at issue referred to in paragraph 216 of the present judgment that the arbitration rules subject, exclusively and mandatorily, disputes relating to the implementation of the prior authorisation and eligibility rules to the jurisdiction of the CAS, an arbitration body whose awards are subject to judicial review by the Tribunal fédéral (Federal Supreme Court). The Commission contends, inter alia, that the review that that court can carry out in respect of those awards excludes the question whether they comply with the public policy provisions of Articles 101 and 102 TFEU. In addition, it asserts that the Tribunal fédéral (Federal Supreme Court) is not a court of a Member State, but a court outside the EU legal system, which is not empowered to refer a question to the Court of Justice for a preliminary ruling on that subject. Lastly, it submits that, according to the case-law of the Tribunal fédéral (Federal Supreme Court), athletes do not, in practice, have any choice other than to accept that disputes between them and the ISU are subject to the jurisdiction of the CAS, unless they no longer take part in any events organised by the ISU or the national skating associations that are its members, and therefore, ultimately, give up their profession. 224 On the other hand, the arbitration rules exclude the possibility, for applicants who have received an ineligibility decision or the entities or undertakings that have received a refusal to grant prior authorisation for a planned international speed skating competition, of seeking protective measures before the competent arbitration body and before the national courts which could be required to rule on the enforcement of awards made by that body. In addition, the Commission states that that enforcement can in general be handled by the ISU and by the national skating associations that are its members, without the need for the intervention of a national court for that purpose. 225 The ISU does not put forward any precise and substantiated argument that can permit the view that those various findings rely on an incorrect factual basis or are vitiated by one or more manifest errors of assessment. It must be held, on the contrary, that some of those findings, such as those relating to the lack of possibility of subjecting CAS awards to judicial review to ensure compliance with the provisions of public policy of EU law, if necessary using the procedure laid down in Article 267 TFEU, are correct, and others, such as those to the effect that the arbitration mechanism at issue in the present case is, in practice, imposed unilaterally by the ISU on athletes, reflect those of the European Court of Human Rights in that regard (ECtHR, 2 October 2018, Mutu and Pechstein v. Switzerland, CE:ECHR:2018:1002JUD004057510, §§ 109 to 115). 226 The sixth plea in law is therefore unfounded. 227 As regards the seventh plea in law, it must be noted that, where the Commission finds the existence of an infringement of Article 101 or Article 102 TFEU, it has the power to require, by means of a decision, the undertakings or associations of undertakings concerned to bring an end to that infringement (see, to that effect, judgment of 2 March 1983, GVL v Commission, 7/82, EU:C:1983:52, paragraph 23) and, to that end, impose on them a corrective measure that is proportionate to that infringement and necessary to bring it to an immediate end (judgment of 29 June 2010, Commission v Alrosa, C‑441/07 P, EU:C:2010:377, paragraph 39). 228 In the present case, the Commission was correct in finding that the arbitration rules reinforced the infringement identified in Article 1 of the decision at issue, by making judicial review, in the light of EU competition law, of CAS arbitral awards delivered after the decisions adopted by the ISU by virtue of the discretion conferred on it by the prior authorisation and eligibility rules more difficult. 229 In addition, the ISU, which merely relies incorrectly on the absence of a link between those different rules, does not effectively dispute the Commission’s findings relating to the need for the corrective measures imposed by that institution with regard to the arbitration rules. 230 In those circumstances, the seventh plea in law is also unfounded. 231 Accordingly, the action must be dismissed to the extent that it was not already dismissed in the judgment under appeal. VI. Costs 232 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded or where the appeal is well founded and the Court of Justice itself gives final judgment in the case, the Court is to make a decision as to the costs. 233 Under Article 138(1) of those rules, which are applicable to the procedure on appeal by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 234 Under Article 138(2) of those rules of procedure which also applies to appeal proceedings by virtue of Article 184(1) thereof, where there are several unsuccessful parties, the Court is to decide how the costs are to be shared. 235 In the present case, the ISU has been unsuccessful in Case C‑124/21 P and in the part of Case T‑93/18 referred to by the Court of Justice. 236 Furthermore, Mr Tuitert, Mr Kerstholt and EU Athletes, while unsuccessful in their second ground of appeal, have succeeded in their claim. 237 In those circumstances, the ISU must be ordered to pay the costs, both in Case C‑124/21 P and in the part of Case T‑93/18 referred to by the Court, in accordance with the forms of order sought by the Commission, Mr Tuitert, Mr Kerstholt and EU Athletes. On those grounds, the Court (Grand Chamber) hereby: 1. Dismisses the appeal; 2. Upholds the cross-appeal; 3. Sets aside the judgment of the General Court of the European Union of 16 December 2020, International Skating Union v Commission (T‑93/18, EU:T:2020:610), in so far as it annulled in part Article 2 of Decision C(2017) 8230 final of the European Commission of 8 December 2017 relating to proceedings under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.40208 – International Skating Union’s Eligibility rules); 4. Dismisses the action in Case T‑93/18 to the extent that it was not previously dismissed in the judgment referred to in point 3 of the present operative part; 5. Orders the International Skating Union to pay the costs in Case C‑124/21 P and in the part of Case T‑93/18 referred to in point 4 of the present operative part. Lenaerts Bay Larsen Arabadjiev Prechal Jürimäe Spineanu‑Matei Bonichot Safjan Rossi Jarukaitis Kumin Jääskinen Wahl Passer Gavalec Delivered in open court in Luxembourg on 21 December 2023. A. Calot Escobar K. Lenaerts Registrar President * Language of the case: English.