EN Official Journal of the European Union C 148/7

Final Report of the Hearing Officer (1)

Case AT.40208 — International Skating Union's Eligibility Rules

(2018/C 148/05)

1. The draft decision concerns certain rules adopted by the International Skating Union (‘ISU’) (2) imposing sanctions on skaters participating in speed skating events that are not authorised by ISU (the ‘Eligibility Rules’) (3). According to the draft decision, the Eligibility Rules constitute a prohibited restriction of competition within the meaning of Article 101 TFEU and Article 53 of the EEA Agreement because they limit the skaters' commercial freedom to participate in non-authorised events, thereby foreclosing potential competitors that would like to organise and commercially exploit international speed skating events. In the draft decision, the Commission also takes the view that ISU's Appeals Arbitration rules (4) reinforce the restriction of competition caused by the Eligibility Rules.

2. The Commission's investigation followed a complaint lodged on 23 June 2014 by two Dutch professional speed skaters against the Eligibility Rules.

3. On 5 October 2015, the Commission initiated proceedings for the purposes of Article 11(6) of Council Regulation (EC) No 1/2003 (5) and pursuant to Article 2(1) of Commission Regulation (EC) No 773/2004 (6) (‘Opening Decision’).

4. On 29 September 2016, the Commission notified a statement of objections to ISU (the ‘SO’) setting out its preliminary view that the Eligibility Rules constitute a prohibited restriction of competition within the meaning of Article 101 TFEU and Article 53 of the EEA Agreement and that the Appeals Arbitration rules reinforce the restriction of competition.

5. On 11 October 2016, ISU was initially provided access to the file by means of a CD-ROM. Two additional documents, in particular notes of meetings between ISU and the Commission on 16 October 2014 and 16 December 2015 respectively, were made accessible to ISU by DG Competition on 14 November 2016, following ISU's request for further documents of 9 November 2016. No issues concerning access to the file have been brought to my attention.

6. Upon their request, I allowed the European Athletes Association (‘EU Athletes’) and the International Olympic Committee (‘IOC’) to be heard as interested third persons in the proceedings. I rejected a request from another organisation which did not seem to be directly affected by the conduct subject to the proceedings and therefore failed to show a sufficient interest within the meaning of Article 27(3) of Regulation (EC) No 1/2003, Article 13(1) of Regulation (EC) No 773/2004 and Article 5(2) of Decision 2011/695/EU (7).

7. ISU responded to the SO on 16 January 2017 and it took part in an oral hearing on 1 February 2017, together with the complainants, EU Athletes and IOC.

8. In its response to the SO and during the oral hearing, ISU raised two procedural issues. First, ISU claimed that its rights of defence have been breached because the allegations contained in the SO relating to ISU's Appeals Arbitration rules were not included in the Opening Decision. Second, ISU alleged that, prior to the Opening Decision, the Commission had created a misleading impression that the case at hand was ‘not a priority’ and that it would be closed following measures taken by ISU to address the Commission's concerns raised until then. By opening a formal investigation on 5 October 2015 without having given ISU the opportunity to address new or additional concerns, the Commission would have infringed ISU's procedural rights, in particular the right to be heard.

9. I do not consider that the above allegations amount to an infringement of ISU's procedural rights. With respect to the first procedural claim, it should be noted that the wording of the Opening Decision allows for a scope of investigation which also includes ISU's Appeals Arbitration rules. Moreover, a decision to initiate proceedings does not prejudge the outcome of the investigation (8) and, as such, it does not have a decisive effect on the potential liability of the undertakings concerned such that their rights of defence could be irremediably impaired (9). Concerning the second procedural issue mentioned in point 8 above, the draft decision rejects, on the basis of the available evidence, the allegation that the Commission would have ever provided any assurance that the case was not a priority. In any event, a decision on the priority status of the case is an internal decision, which the Commission can change without giving the undertakings concerned the opportunity to comment on the reasons for such change. It is only after the notification of the SO that undertakings should be heard on the matters to which the Commission has taken objections (10).

10. On 6 October 2017, the Commission addressed a Letter of Facts to ISU, enclosing additional evidence on which reliance by the Commission was envisaged. A further access to file with respect to the evidence added to the file since 29 September 2016 was provided to ISU on 9 October 2017 by means of a DVD. On 25 October 2017, ISU submitted its response to the Letter of Facts.

11. In a letter addressed to me ISU claimed that the Letter of Facts breaches ISU's procedural rights by (i) presenting additional evidence which was already identifiable prior to the issuing of the SO; (ii) adding new arguments to the SO; and (iii) failing to clearly explain how certain additional evidence supports the Commission's provisional findings.

12. In my response to ISU's letter, I took the view that the Commission's Letter of Facts fully respects ISU's procedural rights, as clarified by relevant case law of the Court of Justice (11). First, there is no basis to argue that the Commission would not be allowed to rely upon a letter of facts to inform the parties involved in the proceedings of additional evidence which was already available at the time of the SO but which was not included in the SO. Second, in my view, the Letter of Facts did not introduce additional objections or modify the intrinsic nature of the infringement with which ISU was charged in the SO. The documents which were referred to in the Letter of Facts are linked to specific preliminary findings in the SO and these findings are not modified but further underpinned with additional evidence. Finally, in the Letter of Facts, the Commission indicated the section of the SO, in particular the paragraph numbers, to which each of the additional documents relate and it explained in a sufficient manner the relevance of the documents to the objections already communicated. The Letter of Facts was issued precisely to allow ISU to make known its views on the value and relevance of the additional evidence that the Commission had identified in support of its preliminary conclusions in the SO.

13. In accordance with Article 16 of Decision 2011/695/EU, I have examined whether the draft decision deals only with objections in respect of which ISU has been afforded the opportunity of making known its views. I conclude that it does.

14. Overall, I consider that the effective exercise of procedural rights has been respected in this case.

Brussels, 30 November 2017. Joos STRAGIER

(1) Pursuant to Articles 16 and 17 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ L 275, 20.10.2011, p. 29) (‘Decision 2011/695/EU’).

(2) ISU is an international sport federation with its head offices in Lausanne, recognised by the International Olympic Committee as the body administering globally figure skating on ice and speed skating on ice.

(3) The Eligibility Rules are included in the ISU General Regulations. According to the Eligibility Rules, skaters could become ineligible for a period up to a lifetime to participate in ISU's international speed skating events if they participated in non-authorised speed skating events.

(4) ISU's Appeals Arbitration rules are contained in the ISU Constitution. They grant exclusive jurisdiction as regards certain decisions of the ISU, including those concerning the Eligibility Rules, to the Court of Arbitration for Sport (CAS).

(5) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ L 1, 4.1.2003, p. 1 (‘Regulation (EC) No 1/2003’).

(6) Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (OJ L 123, 27.4.2004, p. 18) (‘Regulation (EC) No 773/2004’).

(7) In particular, I considered that a general interest in the policy choices and legal reasoning which the Commission may develop in a potential decision or other more specific interests but not linked to the conduct which is the subject of the proceedings cannot confer a right to be heard.

(8) The decision to open proceedings signals a commitment on the part of the Commission to further investigate the case and thus to allocate resources to the case (see Commission notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU (OJ C 308, 20.10.2011, p. 6).

(9) Compare with Judgment in Nexans v Commission, T-135/09, EU:T:2012:596, e.g. paragraphs 41.

(10) See also Article 27(1) of Regulation (EC) No 1/2003 and Judgments in Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission, C-105/04 P, EU:C:2006:592, paragraphs 47, and in Dalmine v Commission, C-407/04 P, EU:C:2007:53, paragraph 59.

(11) See for instance Judgment in LR af v Commission, T-23/99, EU:T:2002:75, paragraphs 188-195.