Accounting for the specificities of sport in EU law: Old and new directions in the 21 December 2023 judgments

This article reflects on sport interests as accounted for by the European Court of Justice in the three judgments delivered on the 21st of December 2023: Case C-333/21 European Superleague Company SL v FIFA, UEFA, Case C-680/21 UL, SA Royal Antwerp Football Club v URBSFA, UEFA and Case C-124/21 P International Skating Union v Commission. In the cases, the Court does not treat sport as a special interest that would justify excluding the application of European Union (EU) substantive law to the situations at hand. Rather, the Court adopts a strict reading of Article 165 TFEU as a provision that does not shield the sport sector from the application of EU law. However, the paper demonstrates that the Court does recognise the particularities of sport and accounts for them in the application of EU free movement and competition law. This is especially when characterising rules as object or effect restrictions, but also when exploring the defence under Article 102 TFEU, the justifications under Article 101(3) TFEU as well as under free movement law. The Court guides and encourages the referring courts to pay attention to the specific content of the rules and the context in which they are implemented. The Court thereby follows the traditional assessment of a measure and its context under EU substantive law while devoting great attention to the specific characteristics of the sport sector in its substantive analysis.