Communication made pursuant to Article 19(3) of Council Regulation No 17 concerning request for negative clearance or for exemption pursuant to Article 81(3) of the EC Treaty (Case No 37.632 - UEFA rule on 'integrity of the UEFA club competitions: independence of clubs'(Text with EEA relevance)
Date: 1999-12-17
Institutions: European Commission
Subjects: economic concentration, joint venture, merger control, professional sport, sporting event, sports body

C 363/2

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Official Journal of the European Communities

17.12.1999

Communication made pursuant to Article 19(3) of Council Regulation No 17 concerning request
for negative clearance or for exemption pursuant to Article 81(3) of the EC Treaty (Case No 37.632
(cid:151) UEFA rule on (cid:145)integrity of the UEFA club competitions: independence of clubs(cid:146)

(1999/C 363/02)

(Text with EEA relevance)

I. THE FACTS

1. THE NOTIFICATION

1. On 14 October 1999 the Union des Associations Euro-
pØennes de Football (UEFA) applied for negative clearance
or, failing this, for exemption pursuant to Article 81(3)
of the EC Treaty in respect of the rule named (cid:145)Integrity
of the UEFA club competitions:
independence of the
clubs(cid:146).

2. UEFA is an association which has its seat in Nyon,
Switzerland.
It is the governing body responsible for
European football. Membership of UEFA is open to all
Eurpean national football associations. UEFA currently
consists of 51 members associations, eighteen of which
are located inside the territory of the European Union.
As a rule, there is a single association in each Member
State of the EU and EEA, which organises the sport at
level. An exception is the United Kingdom,
national
where for historical reasons England, Wales, Scotland
and Northern Ireland each have their own association.
As the confederation of FIFA (FØdØration Internationale de
Football Association) for Europe, UEFA regulates football
throughout Europe. UEFA also organises and conducts
international
football competitions and international
tournaments at European level. Until the 1998/1999
European football season, UEFA has organised three
main club competitions: the Chamnpions’
league, the
Cup Winners Cup and the UEFA Cup. Recently, UEFA
has cancelled the Cup Winners’ Cup. Therefore, from
the 1999/2000 season on, only the Champions’ league
(giving access to a great number of clubs) and the UEFA
Cup will be organised.

2. THE NOTIFIED RULE

3. The notified rule was adopted by the UEFA Executive
Committee on 19 May 1998. On 24 November 1998,
an Extraordinary Conference of the Presidents of UEFA
Member
a
Resolution in which the associations confirmed their
(cid:145)unqualified support
the UEFA rule, and the
sporting principles which underlie it(cid:146).

unanimously

Associations

adopted

for

4. The

rule

competitions:
follows:

named

(cid:145)Integrity

the UEFA club
of
independence of the clubs(cid:146) provides as

(cid:145)A. General Principle

is of

fundamental

It
the sporting
integrity of UEFA club competitions be protected. To
achieve this aim, UEFA reserves the right to intervene

importance that

and take appropriate action in any situation in which it
transpires that the same individual or legal entity is in a
position to influence the management, administration
and/or sporting performance of more than one team
participating in the same UEFA club competition.

B. Criteria

to

regard

With
the UEFA club
competitions, the following criteria are applicable in
addition to the respective competition regulations.

admission

to

1. No club participating in a UEFA club competition

may, either directly or indirectly:

(a) hold or deal in the securities or shares of any

other club, or

(b) be a member of any other club, or

(c) be involved in any capacity whatsoever in the
sporting

administration and/or

management,
performance of any other club, or

(d) have any power whatsoever in the management,
administration and/or sporting performance of
any other club

participating in the same UEFA club competition.

2. No person may at the same time, either directly or
indirectly, be involved in any capacity whatsoever in
the management, administration and/or
sporting
performance of more than one club participating
in the same UEFA club competition.

3. In the case of two or more clubs which are under
common control, only one may participate in the
same competition. In this connection, an individual
or legal entity has control of a club where he/she/it:

(a) holds a majority of

the shareholders’ voting

rights, or

(b) has the right to appoint or remove a majority of
the members of the administrative, management
or supervisory body, or

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(c) is a shareholder and alone controls a majority of
the shareholders’ voting rights pursuant to an
agreement entered into with other shareholders
of the club in question.

4. The Committee of the UEFA Club Competitions will
take a final decision with regard to the admission of
clubs to these competitions. It furthermore reserves
the right to act vis-(cid:224)-vis clubs which cease to meet
the
course of ongoing
in the
competition.(cid:146)

criteria

above

may fill the place thus rendered vacant with another of
its clubs. As a rule, this vacant place should go to the
club which finished the domestic league championship
immediately below the club that is not admitted (for the
UEFA Champions league and UEFA Cup). In the UEFA
Cup Winners’ Cup, the domestic cup runner-up or, if
necessary, one of
the semi-finalists, can be entered
instead of the team not admitted. The Committee for
the UEFA Club Competitions has the right to confirm
the admission of the replacement club.(cid:146)

5. The UEFA Club Competitions Committee defined the
criteria for selecting the club which may participate in
the competition, when two or more clubs under
(cid:145)common control(cid:146) are put forward to play in a UEFA
competition. The selection criteria provides as follows:

6. In conclusion the rule establishes that: 1. no club should
have a financial or management interest in another club
which participates in the same UEFA competition; 2. no
person should be involved in the management of more
same UEFA
than on club participating
competition and 3. no person or company may
control more than one club participating in the same
UEFA competition.

in the

(cid:145)Admission Criteria

If two or more clubs are affected by the new regulations
the UEFA club
to
safeguard
of
the
integrity
the Committee
competitions,
the UEFA club
for
shall apply the following criteria in
competitions
sequence, to determine which club is admitted to the
competition in question:

A. Admission of a club

I. UEFA Club Coefficient (cumulative coefficient of the

last five seasons):

The club with the highest club coefficient is admitted to
the UEFA competition in question.

II. UEFA National Association Coefficient
coefficient of the last five seasons):

(cumulative

If two or more clubs have the same club coefficient (see
I above), the current UEFA coefficient of the respective
national associations is taken into consideration. The
club whose association has the highest coefficient is
admitted to the UEFA club competition in question.

III. Drawing of lots

two or more clubs also have the same national
(see II above), a decision is

If
association coefficient
taken by the drawing of lots.

B. Filling of vacant place

The national association of a club which is not admitted
to a UEFA club competition under the above criteria

3. THE UEFA ARGUMENTS FOR NEGATIVE CLEARANCE

seeks

two (or more)

7. According to UEFA the rule: 1. is designed to preserve
the integrity of competition and the uncertainty of
outcome in the international club competitions
it
organises, 2.
this objective by
to achieve
avoiding the (cid:145)conflict of interests(cid:146) which would result
if an individual or a company was able to influence
the sporting performance of
teams
participating in the same competition and which
is not
might lead to the manipulation of results. 3.
concerned with economic or commercial activities but
is concerned with football as a sport, 4. the rule falls
outside the scope of the competition provisions of the
EC Treaty because it pursues a sporting objective; the
rule does not restrict competition but even if it was
held to restrict
for
ownership interests in football clubs capable of taking
part in UEFA competitions, the rule whould not still
violate Article 81 of the EC Treaty as it is needed for
the proper functioning of sporting competition.

competition on the market

8. In this last respect UEFA considers in line with the
award pronounced on 20 August 1999 by the Court
of Arbitration for Sport
in case CAS 98/200 AEK
Athens and Slavia Prague/UEFA, point 150) that the
actual effect of the rule is to place some limitation on
mergers between European high level football clubs, and
thus
economic
competition between club owners and economic and
sporting competition between clubs. On the basis of
the same CAS award (point 154) UEFA also point out,
that contrary to other types of business, in the sports
business consumer welfare requires that numerous clubs
remain on the market and achieve the highest possible
economic and sporting balance between them.

even enhances

it preservers

or

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the
Furthermore, UEFA refers to Paragraph 107 of
Opinion of Advocate-General Alber in case C-176/96,
Lehtonen (delivered on 22 June 1999). Here Mr Alber
reminds, on the basis of the case law of the Court of
Justice, that EC competition rules shall not be assessed
in the abstract and that they are always depending of
the economic conditions in the relevant markets. Rules
restricting freedom of action which by their effect are
necessary to the creation of competition on the relevant
market, can therefore be compatible with Articles 81
and 82 of
they are
necessary and appropriate to attain this objective.

the EC Treaty,

so long as

investment

9. In the submission of UEFA, the rule is a balanced and
proportionate measure to ensure that competition is
genuine and is seen to be genuine because it does not
prevent
in clubs (from other than clubs
participating in UEFA competitions or owners of such
clubs), but
simply prohibits clubs under common
control from playing in the same UEFA competition.
Moreover, according to UEFA, the definition of (cid:145)control(cid:146),
based on EU law (1), constitutes the minimum regu-
latory measure necessary to ensure that the public is
fully confident in the integrity of the competitions it
organises. UEFA mentions also that any investor may
acquire a shareholding of up to 50 % in any two or
more European football clubs participating in UEFA
competitions without ever being affected by the rule
in question, provided that the investor is not a club
or a person involved in the management, administration
and/or sporting performance of another club partici-
pating in UEFA competitions. Furthermore, UEFA
stresses that several sporting bodies and some state
legislators have issued stricter regulations to deal with
the same issue.

II. THE COMMISSION’S INTENTION

in the view of
football

recognised in the Bosman Case as

10. The Commission considers that the notified rule can be
qualified as a decision of an association of undertakings
or an agreement between associations of undertakings
inside UEFA, in the meaning of Article 81 of the EC
Treaty. Taking into account what the Court of Justice
has
legitimate
objectives (2)
the considerable social
importance of
the
Commission considers that the restrictions imposed by
the rule may escape to the prohibition laid down in
Article 81(1) of
to establish
whether this preliminary conclusion can be upheld or
not, the Commission has to know if such restrictions
are limited to what is necessary to preserve the integrity
of the UEFA club competitions and to ensure the uncer-
tainty as to results. In other words, the Commission
must confirm whether there are or not less restrictive
means to achieve the same objective.

in the Community,

the Treaty.

In order

11. In this view, the Commission invites third parties to
send their observations within one month of the publi-
cation of this notice to the following address, quoting
the reference (cid:145)COMP/37.632 (cid:151) UEFA rule on the
protection of integrity of competitions(cid:146):

European Commission,
Directorate-General for Competition,
Directorate D,
Rue de la Loi/Wetstraat 200
B-1049 Brussels
Fax (32-2) 295 30 80

(1) In particular, Council Directive 88/627/EC of 12 December 1988

(2) Judgement of 15 December 1995, case C-415/93,

[1995] ECR

(OJ L 342, 17.12.1998, p. 62).

I-4921, point 106.