Appeal brought on 26 February 2021 by International Skating Union against the judgment of the General Court (Fourth Chamber, Extended Composition) delivered on 16 December 2020 in Case T-93/18, International Skating Union v European Commission

(Case C-124/21 P)

(2021/C 163/25)

Language of the case: English

Parties

Appellant: International Skating Union (represented by: J.-F. Bellis, avocat)

Other parties to the proceedings: European Commission, Mark Jan Hendrik Tuitert, Niels Kerstholt, European Elite Athletes Association

Form of order sought

The appellant claims that the Court should:

— set aside the judgment of the General Court of the European Union in International Skating Union v Commission (Case T-93/18) in so far as the appellants' action is dismissed;

— annul the Commission Decision of 8 December 2017 in Case AT. 40208 — International Skating Union's Eligibility rules, and

— order the Commission and the interveners at first instance to bear the costs of these proceedings and of the proceedings before the General Court.

Pleas in law and main arguments

First plea: The General Court infringes Article 263 TFEU and the case law of the Court of Justice on Article 101 TFEU by finding that the ISU Eligibility rules restrict competition by object

Part 1: The General Court fails to examine any of the appellant’s arguments challenging the Commission’s assessment of the facts supporting the finding of restriction of competition by object as set out in the Commission Decision of 8 December 2017 in Case AT. 40208 — International Skating Union's Eligibility rules (‘the contested decision’)

All the appellant’s arguments challenging the Commission’s assessment of the facts supporting the finding in Article 1 of the contested decision that the ISU infringed Article 101 TFEU by ‘adopting and enforcing’ the Eligibility rules were either wrongly held to be ineffective or irrelevant or were simply ignored.

Part 2: The General Court redefines the restriction of competition at issue in the case, in breach of its obligation not to substitute its own reasoning for that of the Commission, and wrongly classifies elements discussed by the Commission in Section 8.5 of the contested decision as being relevant to a finding of restriction of competition by object, in breach of the case law of the Court of Justice on Article 101 TFEU

Instead of reviewing the finding of infringement as established in the contested decision, the General Court constructed a new restriction of competition by object deduced from: 1) an abstract reading of the ISU Eligibility rules divorced from any examination of how they were applied in practice and 2) elements discussed by the Commission in Section 8.5 of the contested decision, which does not form part of the finding of infringement by object in the decision (Section 8.3).

Part 3: The General Court commits legal errors in its analysis of the four elements relied upon by the Commission to find that the ISU Eligibility rules are a by object restriction of competition

The content of the Eligibility rules: No conclusion on the alleged restrictive object of the rules can be deduced from the level of the sanctions enforcing them. There are adverse effects on competition resulting from sanctions only when a refusal to authorise an event is unjustified. The level of the sanctions as such says nothing about the content of the rules.

The objectives of the ISU Eligibility rules: From its recognition that the ISU pre- authorisation system pursues a legitimate objective, the General Court should have drawn the conclusion that the ISU Eligibility rules cannot restrict competition by object.

The legal and economic context of the ISU Eligibility rules: The General Court misinterprets Cartes Bancaires (C-67/13) in regarding as irrelevant the fact that all third party figure skating events were approved by the ISU on the ground that there are no ‘interactions’ between the figure skating market and the relevant speed skating market.

The ISU’s intention to restrict competition: The fact that intention is not a necessary factor in a ‘by object’ analysis does not allow the General Court to dismiss as ineffective the appellant’s arguments challenging the Commission’s assessment of the facts set out in recitals 175-178 of the contested ecision on which the Commission relied to find that the ISU infringed Article 101 TFEU through the adoption and enforcement of the Eligibility rules.

Second plea: The General Court errs in law by failing to address the appellant’s fourth plea of its application that the ISU’s decision not to approve the 2014 Dubai Icederby event falls outside the scope of Article 101 TFEU because this decision pursued a legitimate objective in line with the ISU’s Code of Ethics which prohibits all forms of support for betting

The General Court errs in law by mischaracterising the appellant’s plea as involving an abstract discussion of the legitimacy of the objective of protecting the integrity of speed skating. This plea challenged the Commission’s refusal to recognise the validity of the ISU’s ethical concerns about the concept of speed skating competitions combined with on-site betting due to be showcased at the Dubai event. The General Court ignores the evidence produced by the appellant, in particular the report about the debate in the Korean National Assembly rejecting that concept in view of the high risk of manipulations, thus confirming the validity of the ISU’s ethical concerns. The Dubai Icederby is the sole third event party skating event which was not approved under the ISU pre-authorisation system.