Provisional text

delivered on 15 May 2025 (1)

Case C‑428/23

ROGON GmbH & Co. KG,

MVI Management GmbH,

DC

Deutscher Fußballbund e. V. (DFB)

(Request for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice, Germany))

( Reference for a preliminary ruling – Competition – Article 101 TFEU – Meca-Medina case-law – Regulations of a sports association – Professional football – Players’ agents’ activities )

I.Introduction

In a number of recent cases – namely, ISU, (2) Superleague, (3) Royal Antwerp (4) and FIFA (5) – the Court had to review the compatibility with the EU competition and internal market provisions of certain regulations adopted by international or national sports associations.

The present case is a natural follow-up to those cases. Indeed the dispute in the main proceedings concerns a national sports association’s regulations (‘the regulations at issue’) governing the activities of players’ agents (‘the agents’). By its questions, the referring court essentially asks the Court to provide further guidance on the scope of the Court’s case-law that, originating from the judgment in Wouters, (6) was then applied to sports-related activities first in Meca-Medina (7) and was then more recently referred to in ISU, in Superleague and in Royal Antwerp, as well as in some subsequent judgments (‘the Meca-Medina case-law’). (8)

Largely similar or connected legal issues are also raised by two other references for a preliminary ruling – those in Cases C‑209/23, RRC Sports, (9) and in C‑133/24, CD Tondela and Others (10) – in which I will deliver my Opinion today. The present Opinion should, thus, be read together with those other Opinions. For the sake of judicial economy, and in order to assist the readers, I shall attempt to avoid unnecessary repetitions in the three Opinions and, to that end, will make a number of cross-references between them.

II.Facts, procedure and the questions referred

The dispute in the main proceedings arises from the requests for cease and desit lodged by three applicants (two undertakings involved in providing consultancy and representation services to football players, and the managing director of one of those firms) against the Deutscher Fußballbund e. V. (the German football association; ‘the DFB’). The DFB is the umbrella organisation of 27 German football associations with approximately 25 000 clubs and more than 7 million members, which is also a member of the Fédération internationale de football association (FIFA).

Pursuant to Paragraph 16a of the DFB’s statutes, matches in the top two professional divisions (Bundesliga (federal football league; ‘the Bundesliga’) and 2. Bundesliga (second federal football league; ‘the second Bundesliga’)) are organised by Deutsche Fußball Liga e. V. (German football league; ‘the DFL’). The DFL is an association of the clubs in the top two German professional leagues. As ordinary members of the DFL, clubs participating in Bundesliga or second Bundesliga matches are bound by the DFB’s statutes and its binding regulations. To be eligible to play in the Bundesliga or the second Bundesliga, players must sign a licence agreement with the DFL, which also obliges them to comply with the applicable association’s rules. As a member of FIFA, the DFB is subject to its regulations and is under an obligation to implement FIFA’s decisions.

In the wake of FIFA’s adoption of regulations on working with players’ agents, the DFB adopted the Reglement für die Spielervermittlung (regulations governing the activities of players’ agents; ‘the RfSV’), which entered into force on 1 April 2015. The RfSV are aimed at clubs and players, who are obliged to comply with them. They govern the use by players and clubs of the services of an agent for the conclusion of professional player contracts and transfer agreements. Among other things, the RfSV:

–impose a registration obligation on agents (Paragraphs 2(3) and 3(2) and (3) of the RfSV);

–require the production of an agent’s declaration, which provides for the agent being subject to various statutes, regulations and rules of FIFA, the DFB and the DFL, including to the association’s jurisdiction (Paragraph 2(2) and Paragraph 3(2) and (3) of the RfSV and Annexes 1 and 2 thereto);

–impose the additional obligation of registering a natural person when registering a legal person (Annex 2 to the RfSV);

–prohibit the agent, in the case of an inward transfer, from sharing in the club’s future transfer proceeds (Paragraph 7(3) of the RfSV);

–prohibit commission for agent services in respect of minors, (Paragraph 7(7) of the RfSV); and

–impose an obligation to disclose fees paid and payments made to agents (Paragraph 6(1) of the RfSV).

Breaches of the regulations can be sanctioned as unsportsmanlike conduct (Paragraph 9 of the RfSV). An annex to those regulations contains standard forms for the required agent’s declaration. Those regulations were integrated by Circular No 62, sent by DFL GmbH (a wholly owned subsidiary of the DFL) on 12 January 2018 to the managers of the clubs and companies of the Bundesliga and the second Bundesliga, to inform them, inter alia, about outward transfer agreements. (11)

By their requests, the applicants in the main proceedings objected to certain rules set out in the RfSV and asked for interim relief.

The Landgericht Frankfurt am Main (Regional Court, Frankfurt am Main, Germany) allowed the claims in part. On appeal by the applicants, the Oberlandesgericht Frankfurt am Main (Higher Regional Court, Frankfurt am Main, Germany) allowed other claims, whilst dismissing the applicants’ appeal in other respects and the DFB’s cross-appeal.

By their appeals on points of law before the Bundesgerichtshof (Federal Court of Justice, Germany) the applicants continue to pursue their requests for cease and desist and the DFB continues to pursue its application for dismissal of the action. That court, harbouring doubts as to the correct interpretation of the provisions of EU law relied on by the parties, decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

(1)‘(1) Do the principles developed by the Court of Justice of the European Union in the judgments in [Wouters] and [in Meca-Medina], according to which, when applying the rule prohibiting cartels,

–account must be taken of the overall context in which the decision in question was taken or produces its effects and, more specifically, of its objectives,

–and according to which it has then to be considered whether the decision’s consequential effects restrictive of competition are inherent in the pursuit of those objectives,

–and whether they are proportionate to those objectives (“the Meca-Medina test”),

apply to the regulations of a sports association, which are addressed to members of the association and regulate the use of services of undertakings outside the association on a market upstream of the association’s activities?

(2)If question 1 is answered in the affirmative: in that case, must the Meca-Medina test be applied to all the provisions of those regulations, or does its application depend on substantive criteria, such as the proximity [of the individual rule to or its remoteness from] the sporting activity of the association?’

Written observations have been submitted by one of the applicants in the main proceedings (ROGON GmbH & Co. KG), the DFB, the German and French Governments and the European Commission.

By letter of 19 March 2024, the Court invited the interested parties, on the basis of Article 62(1) of the Rules of Procedure of the Court of Justice, to submit their observations on the impact of the judgments in ISU, in Superleague and in Royal Antwerp on the answer to be given to the questions referred in the present case. The DFB, the German and French Governments, ROGON and the Commission complied with that request.

Those parties, with the exception of the French Government, also presented oral argument at the hearing on 12 February 2024.

III.Analysis

By its two questions, the referring court seeks to clarify the scope of the principles developed under the Meca-Medina case-law and the concrete manner in which those principles should be applied in a case involving regulations issued by a sports federation.

A.The first question: the scope of the Meca-Medina case-law

By its first question, the referring court enquires as to whether the Meca-Medina case-law applies to the regulations of a sports association, which are aimed at the members of the association and regulate the use of services of undertakings outside the association, on a market upstream of the association’s activities.

In order to provide an answer to that question, I shall first recall the main tenets of the Meca-Medina case-law (1); then attempt to identify its origins within the EU competition law system (2); and lastly clarify its underpinning logic and scope of application (3). It will be on the basis of those considerations that I will address the specific issues raised by the referring court (4).

From the outset, I should make clear that, in the present Opinion, I will address the legal issues raised by the referring court on the basis of my understanding of the Meca-Medina case-law, as the law stands following the Court’s judgments in the cases referred to in point 1 above.

1.The main tenets of the Meca-Medina case-law

The Meca-Medina case-law was summarised in paragraphs 183 to 187 of the judgment in Superleague. The Court first recalled that, according to settled case-law, not every agreement between undertakings, decisions by associations of undertakings and concerted practices which restrict the freedom of action of the undertakings involved necessarily falls within the prohibition laid down in Article 101(1) TFEU. Indeed – the Court added – ‘the examination of the economic and legal context of which certain of those agreements and certain of those decisions form a part may lead to a finding, first, that they are justified by the pursuit of one or more legitimate objectives in the public interest which are not per se anticompetitive in nature; second, that the specific means used to pursue those objectives are genuinely necessary for that purpose; and, third, that, even if those means prove to have an inherent effect of, at the very least potentially, restricting or distorting competition, that inherent effect does not go beyond what is necessary, in particular by eliminating all competition’.

Those principles apply – the Court continued – ‘in particular in cases involving agreements or decisions taking the form of rules adopted by an association such as a professional association or a sporting association, with a view to pursuing certain ethical or principled objectives and, more broadly, to regulate the exercise of a professional activity if the association concerned demonstrates that the aforementioned conditions are satisfied’.

By contrast, that case-law does not apply – the Court found – ‘in situations involving conduct which, irrespective of whether or not it originates from such an association and irrespective of which legitimate objectives in the public interest might be relied on in support thereof, by its very nature infringes [the EU competition provisions]’. Accordingly, the Court concluded that the Meca-Medina case-law does not apply to agreements which have as their object the restriction of competition.

2.The origins of the Meca-Medina case-law

A lot of grey matter has been applied by legal scholarship on the significance and rationale of the Meca-Medina case-law. For example, some authors have viewed it as introducing a sort of (United States antitrust law-inspired) ‘rule of reason’ within EU competition law, others have drawn parallels with the logic followed in the case-law on free movement (which allows justifications based on various public policy interests), and others have considered it to be a variation of the ‘ancillary restraint’ doctrine (and thus referred to it as ‘regulatory ancillarity’). (12)

To my mind, the Meca-Medina case-law can be explained by taking a step back from its specificities and considering it within the broader context of how the EU competition provisions have been interpreted and applied, at least in the last few decades. (13)

Indeed, a number of rulings delivered by the Court in that period made it very clear that the correct application of Articles 101 and 102 TFEU requires the authorities to stay away from undue formalism and properly to examine all the relevant legal and economic aspects of the situation under consideration. Regardless of whether a form of conduct is multilateral or unilateral, and suspected of constituting a restriction ‘by object’ or ‘by effect’, its compatibility with EU competition law cannot be assessed in purely abstract terms, but always depends on the wider context. (14) That principle has also been affirmed expressly in paragraph 42 of the judgment in Meca-Medina.

That is why an agreement between undertakings or a decision of an association of undertakings may well restrict – and, at times, significantly so – the freedom of action of the undertakings concerned, without that agreement or decision being anticompetitive. At the risk of stating the obvious, I wish to emphasise again that the objective of the EU antitrust rules is not to protect the unhindered pursuit of trade by economic operators, but to ensure that EU markets function appropriately and efficiently, thereby contributing to an optimal allocation of resources and the well-being of EU citizens. (15)

In extreme simplicity, an agreement or decision is anticompetitive, and thus prohibited by Article 101(1) TFEU, when it, actually or potentially, (16) impedes, hinders or discourages competition between different firms, as would have otherwise occurred and, by doing so, it has a negative impact on consumers’ welfare. That is the case, typically, when the conduct in question is capable, in the short to medium term, of leading directly to an increase in prices and/or a reduction of output, or of stifling innovation. It may also be the case when the conduct alters the competitive structure of the market – raising barriers to entry, increasing market concentration, and so forth – in a way which is likely to lead, in the future, to the situation described above. (17)

By contrast, an agreement or decision which, when considered as a whole, has no anticompetitive effect on the market, is not covered by Article 101(1) TFEU. This is so despite the inclusion of certain elements that – if taken in isolation and in abstracto – have (or appear to have) some restrictive effects (for example, non-compete clauses, exclusivity clauses, and so forth). Franchising agreements and selective distribution agreements are good examples in that regard.

In addition, some more recent cases have confirmed that approach again: the mere fact that an agreement included a clause which, taken on its own, may have discouraged new entrants in the market (CB (18)), led to more price uniformity between existing competitors (Budapest Bank (19)), or resulted in a market-sharing arrangement (EDP (20)) was not considered enough by the Court to conclude the incompatibility, as such, of the agreement with Article 101 TFEU. A more detailed assessment of the measure in question, within its proper legal and economic context, was considered necessary to that end.

These principles also form the basis of the case-law on ancillary restraints. As the Court recalled in its judgment of September 2024 in Booking.com, ‘if a given operation or activity is not covered by the prohibition rule laid down in Article 101(1) TFEU owing to its neutrality or positive effect in terms of competition, a restriction of the commercial autonomy of one or more of the participants in that operation or activity is not covered by that prohibition rule either if that restriction is objectively necessary to the implementation of that operation or that activity and proportionate to the objectives pursued by one or the other’. (21)

It follows that, ‘where it is not possible to dissociate such a restriction from the main operation or activity without jeopardising the existence and aim of that operation or activity, it is necessary to examine the compatibility of that restriction with Article 101 TFEU in conjunction with the compatibility of the main operation or activity to which it is ancillary, even though, taken in isolation, such a restriction may appear on the face of it to be covered by the prohibition rule in Article 101(1) TFEU’. (22)

Accordingly, three main conditions must be satisfied for a restriction to be classified as an ‘ancillary restraint’: (i) the main operation is not anticompetitive in nature; (ii) the restriction must be ‘necessary’ for the implementation of that operation (its absence would thus prevent the main operation from being implemented); and (iii) the restriction must be ‘proportionate’ to the objectives underlying the operation in question (that is, there are no realistic alternatives which are less restrictive of competition).

Those three conditions bear a striking similarity to the three conditions which, as set out in point 18 above, constitute the Meca-Medina test. This is, naturally, no accident. The Meca-Medina case-law clearly shares its DNA with the case-law on ancillary restraint, (23) since they are both derived from the basic principle of EU competition law according to which, in order to determine whether given conduct is anticompetitive, the conduct has to be evaluated within its proper legal and economic context. In the light of its logic – which I shall now address – it seems to me that the label ‘regulatory ancillarity’ in relation to the Meca-Medina case-law is quite relevant.

3.The logic and the scope of the Meca-Medina case-law

As I have stated in my Opinion in RRC Sports, (24) there are areas in which the (EU and/or national) authorities may decide to abstain from regulating some aspects of a given economic activity, and leave it to the economic operators concerned themselves – acting through self-governing bodies, trade federations or representative associations – to establish the necessary rules and, where appropriate, enforce them and settle possible disputes. There are a number of reasons – which need not be recalled here (25) – as to why the choice of the authorities to leave certain matters to self-regulation may be beneficial for the public authorities, the market operators involved and, last but not least, their customers.

That is true even for measures which could, as I have explained, produce some restrictive effects. Measures of self-regulation that, for example, pursue the aim of ensuring minimum quality requirements, or avoiding conflicts of interest, fraud or abuse, may indeed increase consumers’ confidence in the market operators and, as a consequence, improve the effectiveness of the market. In those situations, the market is likely to grow and become more competitive overall.

Moreover, in the case-law on ancillary restraints, undertakings pursue a commercial objective that is not, on the whole, anticompetitive.(26) This means that the objective of the transaction is either to enhance competition or is, at the very least, neutral in that regard. In any case, it is an objective furthering the economic interests of the undertakings involved. (27) By contrast, in cases of the same type as Meca-Medina, the market-related objective is, if present, pursued alongside, or it coincides with, ‘one or more legitimate objectives in the public interest’, (28) such as: ensuring the sound administration of justice (Wouters (29)); protecting ‘athletes’ health[ and] the integrity and objectivity of competitive sport and ethical values in sport’ (Meca-Medina (30)); safeguarding the ‘sound administration of undertakings’ accounting and taxation matters’ (OTOC (31)); consumer protection (Consiglio Nazionale dei Geologi (32)); and road safety (API (33)).

Now, such an acceptance (whether formal or informal, express or implicit) by the public authorities of the self-regulatory powers exercised, and the ensuing responsibility borne, by private bodies, (34) necessarily entails the recognition of such bodies having some room for manoeuvre in setting the relevant rules and standards. There may, indeed, be various lawful courses of action – whose impact on competition is broadly equivalent – which those bodies might take in order to achieve the objectives in question.

That is reflected in the judgment in Wouters, in which the Court emphasised that the self-regulation body ‘could reasonably have considered that [the measure in question], despite the effects restrictive of competition that are inherent in it, is necessary for the proper practice of the legal profession, as organised in the Member State concerned’. (35)

I am aware that the term ‘reasonable’ does not appear in the judgments in ISU, in Superleague, in Royal Antwerp or in FIFA. However, the Court has, in some of those judgments, expressed the same concept in another manner, stating that:

‘[the condition of the necessity of the measure] involves an assessment and comparison of the respective impact of that conduct and of the alternative measures which might genuinely be envisaged, with a view to determining whether the efficiency gains expected from that conduct may be attained by measures which are less restrictive of competition. It may not, however, lead to a choice based on their respective desirability being made as between such conduct and such alternative measures in the event that the latter do not seem to be less restrictive of competition’. (36)

At the same time, however, the use of such discretion must be subject to limits and, where doubts arise, cannot go unchecked. It is obvious that the rules and standards set by those bodies may concern matters (tariffs, entry requirements, and so forth) which, at least potentially, might create issues from a competition angle. Even where those rules are adopted in order to achieve a legitimate objective in the public interest, the actual effects on competition may nonetheless be problematic, and thus require a proper evaluation within the framework laid down in Article 101 TFEU. (37) That explains why the Meca-Medina case-law accepts that certain measures of self-regulation fall outside the scope of Article 101(1) TFEU, but only where a number of conditions are satisfied.

Where that is not the case, it does not mean that the measure in question is necessarily incompatible with EU law. Indeed, Article 101(3) TFEU provides for the possibility that measures which restrict competition may be exempted from the prohibition set out in Article 101(1) TFEU when the economic benefits they produce outweigh the negative effects. (38)

That being said, I wish to add some further considerations, to clarify the scope of the Meca-Medina case-law more fully.

First, if the Meca-Medina case-law is by no means akin to a ‘Get Out of Jail Free’ card in the game of Monopoly given to self-governing bodies, it does nonetheless allow them somewhat wider room for manoeuvre than what other undertakings and associations of undertakings may enjoy when pursuing purely commercial objectives. As explained above, the reason for this relatively benign treatment lies in the public authorities’ choice to leave the regulation of certain aspects of a professional or commercial activity to be governed by rules issued by the bodies representing the undertakings concerned, or at the very least a group of undertakings representing and acting for the whole category.

Therefore, I take the view that, although it is not strictly necessary for the competent public authorities (be it EU and/or national) to have formally assigned the body in question the responsibility to pursue, within the ambit of its statutory activities, a legitimate objective in the public interest, those authorities must have, at the very least, acknowledged and accepted the body’s activity of self-regulation. (39) I find that some elements point in that direction in the EU Courts’ decisions in Wouters, (40) in Meca-Medina, (41) in API, (42) in ONP (43) and in FIFA. (44) In addition, all recent case-law on this matter concerned measures adopted by professional or sports associations. (45) As the Court stated in the judgment in Superleague, the Meca-Medina case-law ‘applies in particular in cases involving agreements or decisions taking the form of rules adopted by an association such as a professional association or a sporting association, with a view to pursuing certain ethical or principled objectives and, more broadly, to regulate the exercise of a professional activity if the association concerned demonstrates that the aforementioned conditions are satisfied’. (46)

In my view, as the law stands, it is not for the undertakings themselves to decide – on their own initiative, acting unilaterally and without any ‘blessing’ from the public authorities – whether and, if so, to what extent competition in a given market should be compromised in order to pursue some general interest of a public nature. That is especially so if the objective pursued by that body is not closely related to its core activity.

Sports associations may – just to give an example – be allowed some latitude when deciding how best to combat doping, (47) or protect young athletes. (48) However, there would be no reason to do so when adopting measures intended to protect the environment or to combat tax avoidance. (49) Any such (by all means laudable) measure that were to have a clear impact on competition between undertakings in the European Union would have to be examined within the traditional competition law framework.

It is true that, in times where the public authorities increasingly encourage private undertakings to adopt plans and strategies of corporate social responsibility, agreements between private undertakings could effectively contribute to achieving important objectives in the public interest. Moreover, modern markets see, more than in the past, rival undertakings that join forces to cooperate on discrete issues of common interest, whilst remaining fierce competitors on the market. Some academics have coined a new term for this phenomenon, ‘co-opetition’, which they view as often stimulating progress and enhancing efficiency in the markets. (50) However, that does not detract from the fact that, in the case of competing objectives in the public interest – the need to ensure competitive markets on the one hand, and some other general interest on the other – it is, first and foremost, for the public authorities to find the optimal way of achieving an equilibrium. (51)

Second, if private bodies intend to regulate, with the public authorities’ approval, certain aspects of a given economic activity, in pursuance of some public interest, it seems obvious to me that they should do so in a transparent manner. That allows the public authorities to exercise the necessary supervision and, if need be, undertake corrective action. I am, therefore, of the firm view that the Meca-Medina case-law cannot be invoked in order to justify surreptitious or confidential agreements or decisions.

Third, to my mind, the expression ‘legitimate objective in the public interest’ used in the case-law implies necessarily that the interest in question is identified as such in the relevant EU legislation or case-law. Indeed, under Article 3(1)(b) TFEU, the establishing of the competition rules necessary for the functioning of the internal market is an area of EU exclusive competence. Thus, if a measure adopted by a private association is (actually or potentially) capable of producing some restrictive effects in the internal market, it may be justified only if the interest is considered to deserve protection within the EU legal order.

Fourth, it cannot be taken for granted that a given measure adopted by private entities such as sports and professional associations genuinely pursues a general interest of a public nature. As Advocate General Szpunar rightly pointed out in his Opinion in Royal Antwerp Football Club, private associations such as sports federations are set up in order to pursue, primarily, objectives which are of an economic and private nature which may, or may not, be easily reconcilable with public interests of a non-economic nature. Such associations would, naturally, be ‘behaving irrationally if they attempted to further public objectives which ran directly counter to their [own] commercial interests’. (52)

Moreover, as ROGON pointed out at the hearing, several events in recent years show that some sports associations have imperfect governance structures, with limited internal checks and safeguards to prevent episodes of mismanagement. (53)

Consequently, any claim that a measure is aimed at pursuing certain objectives in the public interest must be verifiable and can only be accepted when supported by concrete evidence. Indeed, I suspect that for almost any measure adopted by a sports federation or professional body, some kind of interest of a general nature allegedly being pursued may be knocked together ex post, when the need to justify the measure arises. (54) That is, however, not enough. In my view, it must be unequivocally clear from the measure itself, or from the context in which it was adopted, what the specific interest pursued is, and the measure in question must be genuinely designed to make a significant contribution to its furtherance. (55)

A purely private economic objective cannot – I hardly need to add – constitute a ‘legitimate objective in the public interest’ within the meaning of the Meca-Medina case-law. (56) Yet, there is nothing in the case-law to indicate that an agreement should only pursue the one objective that falls within the scope of the Meca-Medina case-law. On the contrary, in Meca-Medina the EU Courts have confirmed that the fact that a measure pursues a twofold objective (one of an economic and private nature, and one of a general and public nature) does not exclude the applicability of the case-law. (57) That is true, however, provided that the private economic objective is not per se anticompetitive. This leads me to my fifth and last point.

Fifth, I find it reasonable that agreements or decisions that are restrictive of competition ‘by object’ cannot fall within the scope of the Meca-Medina exception. As explained in more detail in my Opinion in CD Tondela, an agreement or decision is restrictive ‘by object’ when its economic rationale (or one of its key rationales) is inherently anticompetitive. (58) In such a case, the restrictive effects cannot be regarded as being ‘ancillary’. In other words, those effects are not the (unfortunate but alas inevitable) by-product, of limited significance, of a legitimate business operation that is either pro-competitive or, at the very least, market neutral. They are, instead, the result of an operation whose underlying economic justification is fundamentally contrary to the objectives pursued by EU competition law. Under those circumstances, the operation in question cannot be said to fall completely beyond the scope of Article 101 TFEU but requires a proper assessment, under paragraphs 1 and 3 thereof.

Regardless of whether this requirement was, as the Court stated in the judgment in Superleague, ‘already implicitly but necessarily apparent from the Court’s case-law’ (59) – an issue which has been discussed in recent legal scholarship (60) – it seems to me that, in any event, that requirement follows from the very logic of the system laid down in the EU competition provisions. (61)

It is against these principles that I will now examine the issues raised by the referring court.

4.The issues raised by the referring court

In its request for a preliminary ruling, the referring court explains why it is unsure as to whether, in a situation such as that at issue in the main proceedings, the Meca-Medina case-law could be applicable.

56.The referring court notes that, in past cases, the Court had to review decisions of professional and sports associations that, by limiting the economic conduct of their own members, were capable of affecting competition between them. By contrast, the regulations at issue in the present case have a restrictive effect on a market upstream of that in which the members of the association are active: (62) that of agents’ services. To be able to operate on that market, agents must necessarily comply with the rules laid down in those regulations. Otherwise, they run the risk that – under the pressure of being sanctioned by the DFB – players and clubs will stop using their services.

57.In that regard, the referring court nevertheless recalls certain findings of fact made by the Oberlandesgericht Frankfurt am Main (Higher Regional Court, Frankfurt am Main), whose decision is the object of the appeal on points of law pending before it. The Oberlandesgericht Frankfurt am Main (Higher Regional Court, Frankfurt am Main) found, inter alia, that the activity of agents was directly linked to the sporting competitions organised by the DFB. In particular, that activity significantly influences the composition of the teams, their continuity and their sporting strength, thereby affecting the fairness of competitions and athletes’ performance and health. The regulations at issue are intended to avoid dependencies between agents, players and clubs. Such dependencies could jeopardise – in that court’s view – the integrity and fairness of sporting competitions. In that regard, it noted that, in the past, players and clubs have in some cases been harmed financially and professionally by the practices of agents that also had consequences under criminal law.

58.In this context, I note that the views of the Oberlandesgericht Frankfurt am Main (Higher Regional Court, Frankfurt am Main) appear to be largely shared by the European Parliament which, in its Resolution of 23 November 2021 on EU sports policy: assessment and possible ways forward, inter alia, ‘recall[ed] the need to regulate the activities of agents and acknowledge[d] that the recent reforms in the football transfer market, including … licencing requirements for agents and caps on agents’ commission [went] in the right direction; urge[d] the relevant sports authorities to ensure the prompt implementation of these reforms and call[ed] on the Commission to monitor progress’. (63) Some studies commissioned by the EU institutions in the past appear to confirm the crucial role played by agents in the sports industry and the existence of reprehensible practices in which some agents have been involved. (64)

59.Furthermore, the referring court notes that, in legal scholarship, different views have been expressed as to whether regulations adopted by an association that restrict the economic freedom of action of non-associated undertakings can be justified under the Meca-Medina case-law.

60.According to one view, the Meca-Medina case-law could be applied to regulations issued by a sports association only if they pursue purely sporting or sport-specific objectives. By contrast, the case-law would be inapplicable with regard to regulations whose subject matter does not directly concern the sport itself, since they regulate economic activities by undertakings that are not members of the sports association and are therefore unable to influence the content of sports regulations.

61.According to another view, the applicability of the Meca‑Medina case-law would not depend on whether the regulations of a sports association only concern purely sports-related elements of its activities or whether they have a direct impact on other markets. Rather, what is crucial would be whether there is any connection between the association’s regulations and the organisation and the proper conduct of a sporting competition. The only instance in which the Meca-Medina case-law would not apply would be – in line with that view – if the regulations being challenged pursue purely commercial goals (of the association) and no sports-related objective can be identified with regard to the specific sporting competition.

62.I am of the view that the correct answer to the first question referred lies somewhat in the middle between the two views summarised above. The first one appears too strict and the second one too broad.

63.I have explained that the rationale of the Meca-Medina case-law is to enable the public authorities to leave certain matters to self-regulation by the entities pursuing the economic activities concerned. (65) It is, therefore, for me, self-evident that the authorities’ mandate given to private associations – expressed by way of formal delegation or entrustment, or by simple tolerance (66) – must, in principle, be limited to the activities carried out by the undertakings represented in the association in question. There would be no legal justification for extending the authority of that body to act in areas of economic activity which go beyond its mission, as set out in the statutes of the association.

64.However, it is equally clear to me that the regulations authored by such associations may well affect, to various degrees, economic activities which are connected to those falling squarely within the scope of the association’s core mission. That may be inevitable. For example, in the judgment in Wouters, the measure in question – a prohibition on lawyers entering into multi-disciplinary partnerships with accountants – was adopted by the Netherlands Bar. Nevertheless, that measure affected the accountants’ professional activity as much as the lawyers’ professional activity.

65.Such an occurrence seems to me to be even more likely in markets that are not simply related but actually interdependent and in which cooperation at various levels is essential in order to ensure the very existence of the final product. (67) In particular, in the football ‘ecosystem’, various categories of economic operators (clubs, national and international federations, players, agents, sponsors, broadcasters, and so forth) need to interact, and to some extent collaborate, in order to ensure the viability of the system and its appeal to the end consumers: supporters. They are, indeed, those that ultimately finance, directly and indirectly, the whole football industry. Were the final product (football matches and tournaments) to be unappealing, many of the operators involved in that ecosystem would be ‘out of business’.

66.So, to the extent that – as established by the Oberlandesgericht Frankfurt am Main (Higher Regional Court, Frankfurt am Main) – the agents’ activity could have a direct and significant influence on the fairness of competitions and athletes’ performance and health, I have no difficulty in concluding that regulations on the agents’ activities may touch upon the sphere of a sports association’s mission. Naturally, that is so only where the regulations in question govern aspects of the agents’ activities in relation to which such a ‘direct and significant influence’ test is met.

67.A fortiori, I see no basis for the arguments to the effect that such regulations may only concern the deontology of its members, or the rules of the game and the manner in which competitions take place. In that regard, I think that those arguments may result from a conceptual confusion. On the one hand, the Court has found that certain ‘purely sporting rules’ fall outside the scope of the EU provisions on competition, because – as I have explained in my Opinion in RRC Sports (68) – those rules do not concern the economic aspects of a sport and do not produce any restrictive effects of some significance on the economic activities concerned. On the other hand, measures such as those examined in the Meca-Medina case-law directly concern economic activities and can in fact have an impact on the exercise of those activities, with possible repercussions on the competitiveness of the markets. As such, those measures fall, in principle, within the scope of the EU competition provisions. The Court has merely found that, when certain conditions are satisfied, those measures are not covered by the prohibitions laid down in Article 101(1) and Article 102 TFEU.

68.In my view, there are three main questions for a court establishing whether regulations issued by a sports association whose effects extend beyond the core activities of the association itself may be reviewed under the Meca-Medina case-law. First, can the interest protected by such rules be recognised, under EU law, as actually constituting a matter of public interest? Second, if it can, does the pursuit of that objective fall, broadly speaking, within the mission of the association, as recognised or accepted by the competent public authorities? Third, if it does, do the association’s regulations genuinely pursue the interest in question?

69.If the answer to those three questions is positive, then I think that the regulations in question could, in principle, be reviewed in the light of the Meca-Medina test, even if they also affect the economic activity of undertakings which are not represented by (and in) the association.

70.Once again, that cannot be regarded as giving a blank cheque to sports associations. The degree of connection between the association’s core activities and the third party’s activities (in casu, agents’ services) is by no means irrelevant. On the contrary, it has a clear bearing on the application of the Meca-Medina case-law, as regards the necessary and proportionate nature of the regulations in question. It has a twofold and complementary role.

71.On the one hand, the lower the degree of influence that the third parties can exercise on the activities and decision-making of the association that has adopted the regulations in question, the less likely it is that those regulations may be considered necessary for and/or proportionate to achieving the objectives pursued.

72.On the other hand, the greater the impact that the regulations in question have on the third parties’ economic activity, the more likely it is that those regulations may be considered unnecessary for and/or not proportionate to achieving the objectives pursued.

73.In this context, I hardly need to add that genuine and meaningful participation by the interested third parties in the procedure by which the regulations in question are adopted would certainly contribute to ensuring their necessity and proportionate nature, in addition to enhancing their legitimacy.

74.In the light of the above, I am of the view that the answer to the first question referred should be that Article 101(1) TFEU must be interpreted as meaning that the Meca-Medina case-law applies to the regulations of a sports association which concern the use of services of undertakings active in markets upstream or downstream of the activities of that association (or of its members), provided that those services are capable of having a direct and significant influence on the association’s core activities.

75.Having suggested an answer to the first question referred, and before I proceed to examine the second question referred, I would like to add one final remark.

76.I understand that the regulations challenged by the applicants in the main proceedings are largely similar to those challenged by the applicants in the proceedings which led the Landgericht Mainz (Regional Court, Mainz, Germany) to send its request for a preliminary ruling in RRC Sports. In my Opinion in that case, I have sought to provide assistance by giving the referring court some guidance on the manner in which the Meca-Medina case-law should be applied in the rules at issue in those proceedings which are, as far as I understand it, similar to those at issue here. (69) My hope is, therefore, that the considerations developed in that Opinion could also be of some assistance to the Bundesgerichtshof (Federal Court of Justice).

B. The second question

77.By its second question, the referring court asks whether the Meca-Medina test must be applied in respect of all the rules of the regulations considered together, or to each rule separately in the light of its specific characteristics (such as the proximity of the rule to or its remoteness from the association’s activities).

78.In that regard, I agree with the Commission that, in principle, each rule included in a regulation issued by a professional body or sports association ought to be examined separately. The subject matter of those rules may be different and they may concern (or have an impact on) different markets and different categories of undertakings. This approach has clearly been confirmed in the judgment in Superleague, in which the Court has assessed the compatibility of the various rules in question individually.

79.However, there may be situations in which it would be artificial to split a set of rules (an entire regulation or certain parts of a regulation) into its various components or sub-components since those constitute an indivisible whole, and the effects of that set of rules cannot be meaningfully appreciated unless they are considered in their entirety. It is the mechanism created by those rules that matters, and the fact that it may be introduced in one rule or in more than one rule is a formality.

80.Similarly, there may be rules which, each taken in isolation, do not appreciably restrict competition but which, taken together, may well have a more significant impact on the competitiveness of the market concerned.

81.In the two situations described above, it seems to me that a proper assessment under EU competition law of an association’s regulations requires the relevant authorities to carry out an analysis in which all or some of the rules are evaluated in combination.

82.I should also add that, when reviewing under the Meca-Medina test the individual rules or group of rules concerned, the degree of proximity (or remoteness) between the activity of the association and the activity of the undertakings which are affected by the association’s rules, despite being active in a distinct albeit connected market, should be considered. As explained in points 70 to 72 above, that is an element which is particularly relevant in order to assess whether the rules in question are necessary and proportionate, in the light of the contribution given to the promotion of the public interest pursued by the regulations.

83.On the basis of the above, I suggest that the Court answer the second question referred to the effect that the Meca-Medina test must, in principle, be applied in respect of each rule contained in regulations issued by a professional or sports association unless, because of some specific circumstances, a meaningful assessment requires some or all of those rules to be evaluated in combination. In that context, the degree of proximity or remoteness between the activity of the association and the activity of the third-party undertakings which are affected by the rules is a relevant factor to consider when assessing whether the rules in question are necessary and proportionate in the light of the legitimate objective in the public interest pursued.

IV.Conclusion

84.In conclusion, I propose that the Court answer the questions referred for a preliminary ruling by the Bundesgerichtshof (Federal Court of Justice, Germany) to the effect that

Article 101 TFEU must be interpreted as meaning that:

(1)The Meca-Medina case-law applies to the regulations of a sports association which concern the use of services of undertakings active in markets upstream or downstream of the activities of that association (or of its members), provided that those services are capable of having a direct and significant influence on the association’s core activities;

(2)The conditions laid down in the Meca-Medina case-law must, in principle, be applied in respect of each rule contained in regulations issued by a professional or sports association unless, because of some specific circumstances, a meaningful assessment requires some or all of those rules to be evaluated in combination. In that context, the degree of proximity or remoteness between the activity of the association and the activity of the third-party undertakings which are affected by the rules is a relevant factor to consider when assessing whether the rules in question are necessary and proportionate in the light of the legitimate objective in the public interest pursued.

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1Original language: English.

2Judgment of 21 December 2023, International Skating Union v Commission (C‑124/21 P, EU:C:2023:1012) (‘the judgment in ISU’).

3Judgment of 21 December 2023, European Superleague Company (C‑333/21, EU:C:2023:1011) (‘the judgment in Superleague’).

4Judgment of 21 December 2023, Royal Antwerp Football Club (C‑680/21, EU:C:2023:1010) (‘the judgment in Royal Antwerp’).

5Judgment of 4 October 2024, FIFA (C‑650/22, EU:C:2024:824) (‘the judgment in FIFA’).

6Judgment of 19 February 2002, Wouters and Others (C‑309/99, EU:C:2002:98) (‘the judgment in Wouters’).

C-133/24 (‘the Opinion in Meca-Medina’).

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11The circular stated that a one-off lump-sum payment or a fee in instalments could be agreed in relation to the transfer fee achieved for the outward transfer service with the proviso, however, that it should not amount to a percentage share.

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12See, inter alia, and with further references, Monti, G., ‘Article 81 EC and public policy’, Common Market Law Review, Vol. 39, Issue 5, 2002, pp. 1068, and 1087 to 1090; Komninos, A.P., ‘Non-competition concerns: Resolution of conflicts in the integrated Article 81 EC’, Working Paper (L) 08/05, The University of Oxford Centre for Competition Law and Policy, p. 10 et seq.; Nazzini, R., ‘Article 81 EC between time present and time past: A normative critique of “restriction of competition” in EU law’, Common Market Law Review, Vol. 43, Issue 2, 2006, p. 521 et seq.; and Whish, R., Competition Law, 6th ed., Oxford University Press, 2006, pp. 126 to 131.

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13See, by analogy, judgment of 18 September 2001, M6 and Others v Commission (T‑112/99, EU:T:2001:215, paragraphs 75 to 77).

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14To name but a few: judgments of 11 September 2014, CB v Commission (C‑67/13 P, EU:C:2014:2204); of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632); of 2 April 2020, Budapest Bank and Others (C‑228/18, EU:C:2020:265); of 30 January 2020, Generics (UK) and Others (C‑307/18, EU:C:2020:52); and of 10 September 2024, Google and Alphabet v Commission (Google Shopping) (C‑48/22 P, EU:C:2024:726).

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15See, in more detail, my Opinion in RRC Sports, point 26.

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16See, in particular, judgment of 5 December 2024, Tallinna Kaubamaja Grupp and KIA Auto (C‑606/23, EU:C:2024:1004, paragraph 22 et seq.).

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17To that effect, see, for example, judgment of 4 June 2009, T-Mobile Netherlands and Others (C‑8/08, EU:C:2009:343, paragraphs 36 to 39).

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18Judgment of 11 September 2014, CB v Commission (C‑67/13 P, EU:C:2014:2204, paragraphs 48 to 87).

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19Judgment of 2 April 2020, Budapest Bank and Others (C‑228/18, EU:C:2020:265, paragraphs 51 to 86).

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20Judgment of 26 October 2023, EDP – Energias de Portugal and Others (C‑331/21, EU:C:2023:812, paragraphs 87 to 94).

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21Judgment of 19 September 2024, Booking.com and Booking.com (Deutschland) (C‑264/23, EU:C:2024:764, paragraph 51).

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22Ibid., paragraph 52.

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23After all, both in Wouters (paragraph 109 of the judgment) and in Meca-Medina (paragraphs 42 and 47 of the judgment), the Court considered a relevant precedent to be the judgment of 15 December 1994, DLG (C‑250/92, EU:C:1994:413), in which the ancillary restraint doctrine was found to be applicable. On this issue, see also, Opinion of Advocate General Rantos in European Superleague Company (C‑333/21, EU:C:2022:993, points 87 to 92).

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24See point 30 of that Opinion.

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25I would only refer, in that regard, to the Opinion of Advocate General Jacobs in Joined Cases Pavlov and Others (C‑180/98 to C‑184/98, EU:C:2000:151, point 92): ‘I have argued that the specific features of the markets for professional services require some kind of regulation. Opponents of professional self-regulation insist that the State or at least State-controlled regulatory bodies should regulate the professions, since there are dangers of abuses of regulatory powers. However, in economic terms again an information problem arises. The complex nature of those services and their permanent evolution through rapidly changing knowledge and technical developments make it difficult for parliaments and governments to adopt the necessary detailed and up-to-date rules. Self-regulation by knowledgeable members of the professions is often more appropriate since it can react with the necessary flexibility. The main challenge for every competition law system is therefore to prevent abuses of regulatory powers without abolishing the regulatory autonomy of the professions.’

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26In order to distinguish it from the Meca-Medina ‘regulatory ancillarity’, that case-law is sometimes referred to as relating to ‘commercial ancillarity’. See, for example, Whish, R., footnote 12, op. cit., p. 128.

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27See, for example, judgments of 25 October 1977, Metro SB-Großmärkte v Commission (26/76, EU:C:1977:167, paragraph 22), and of 28 January 1986, Pronuptia de Paris (161/84, EU:C:1986:41, paragraphs 15 to 27).

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28See the judgment in Superleague, paragraph 183 and the case-law cited (emphasis added).

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29Paragraph 97 of that judgment.

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30Paragraphs 43 and 45 of that judgment. See also Article 165(2) TFEU.

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31Judgment of 28 February 2013, Ordem dos Técnicos Oficiais de Contas (C‑1/12, EU:C:2013:127, paragraph 95) (‘the judgment in OTOC’).

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32Judgment of 18 July 2013 (C‑136/12, EU:C:2013:489, paragraphs 55 and 56).

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33Judgment of 4 September 2014, API and Others (C‑184/13 to C‑187/13, C‑194/13, C‑195/13 and C‑208/13, EU:C:2014:2147, paragraphs 50 and 51).

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34Naturally, that situation cannot extend to the formal granting of regulatory powers, by the Member States’ authorities, to a professional association, whilst retaining the power to define the public-interest criteria and the essential principles with which the association’s rules must comply, as well as the power to adopt decisions in the last resort. Indeed, in those cases the rules adopted by the professional association remain State measures and are not covered by the Treaty rules applicable to undertakings. See, to that effect, the judgment in OTOC, paragraph 54.

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35Paragraph 110 of that judgment (emphasis added). See also, paragraphs 105 and 107 thereof.

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36Emphasis added. See the judgments in Superleague (paragraph 197), in Royal Antwerp (paragraph 124) and in FIFA (paragraph 156).

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37As Advocate General Léger noted in the Opinion in Wouters and Others (C‑309/99, EU:C:2001:390), the very concept of an ‘association of undertakings’ plays a particular role in (what is now) Article 101(1) TFEU, since ‘it seeks to prevent undertakings from being able to evade the rules on competition on account simply of the form in which they coordinate their conduct on the market. To ensure that this principle is effective, [Article 101(1) TFEU] covers not only direct methods of coordinating conduct between undertakings (agreements and concerted practices) but also institutionalised forms of cooperation, that is to say, situations in which economic operators act through a collective structure or a common body.’ See point 62 of that Opinion.

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38To that effect, see, inter alia, judgments of 25 October 1977, Metro SB-Großmärkte v Commission (26/76, EU:C:1977:167, paragraph 21); of 26 January 2005, Piau v Commission (T‑193/02, EU:T:2005:22, paragraphs 100 to 106); of 23 November 2006, Asnef-Equifax and Administración del Estado (C‑238/05, EU:C:2006:734, paragraph 67); and of 25 January 2024, Em akaunt BG (C‑438/22, EU:C:2024:71, paragraph 33). I have set out some considerations on Article 101(3) TFEU in points 75 to 95 of my Opinion in RRC Sports.

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39See, on this issue, Mavroidis, P.C. and Neven, D., ‘Legitimate objectives in antitrust analysis: The FIFA regulation of agents and the right to regulate football in Europe’, Concurrences No 1-2024, Art. No 117111.

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40Paragraph 100 of that judgment.

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41Judgment of 30 September 2004, Meca-Medina and Majcen v Commission (T‑313/02, EU:T:2004:282, paragraphs 38 and 46).

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42Judgment of 4 September 2014, API and Others (C‑184/13 to C‑187/13, C‑194/13, C‑195/13 and C‑208/13, EU:C:2014:2147, paragraphs 46 and 47).

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43Judgment of 10 December 2014, ONP and Others v Commission (T‑90/11, EU:T:2014:1049, paragraph 347).

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44Paragraph 99 of that judgment.

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45See, in particular, the case-law referred to in footnotes 2 to 5 and 7 above.

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46Paragraph 183 of that judgment.

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47See the judgment in Meca-Medina, paragraphs 43 to 45.

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48See, inter alia, judgments of 15 December 1995, Bosman (C‑415/93, EU:C:1995:463, paragraph 106), and of 16 March 2010, Olympique Lyonnais (C‑325/08, EU:C:2010:143, paragraph 39).

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49See, to that effect, the judgment in FIFA, paragraph 99.

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50Brandenburger, A.M. and Nalebuff, B.J., Co-opetition: A Revolution Mindset that Combines Competition and Cooperation, Crown Business, 1996.

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51See also, in that regard, my Opinion in RRC Sports, point 91.

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52C‑680/21, EU:C:2023:188, points 56 to 60.

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53See, for example, United Nations Office on Drugs and Crime, ‘Global report on corruption in sport’, 2022 (available online), p. 3. See also, the Commission’s Communication ‘Developing the European dimension in sport’, of 18 January 2011, COM(2011) 12 final, Section 4.1. On this issue, see, also, point 94 of my Opinion in RRC Sports.

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54Similarly, Van Rompuy, B., ‘EU Court of Justice delineates the scope of the Wouters exception’, Kluwer Competition Law Blog, 15 January 2024.

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55See, in this context, Opinion of Advocate General Rantos in European Superleague Company (C‑333/21, EU:C:2022:993, point 89 and the case-law cited).

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56See, to that effect, judgment of 4 October 2011, Football Association Premier League and Others (C‑403/08 and C‑429/08, EU:C:2011:631, paragraphs 134 to 146), and the judgment in Superleague, paragraphs 210 to 241. In both cases, the possible application of the Meca-Medina case-law to the measures under examination was not even considered.

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57See judgment of 30 September 2004, Meca-Medina and Majcen v Commission (T‑313/02, EU:T:2004:282, paragraph 57). On appeal, see paragraph 46 et seq. of the judgment of the Court of Justice in Meca-Medina.

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58See points 23 to 45 of that Opinion.

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59Paragraph 185 of that judgment. In fact, the case-law was not very clear on this point: compare judgment of 23 November 2017, CHEZ Elektro Bulgaria and FrontEx International (C‑427/16 and C‑428/16, EU:C:2017:890, paragraph 53), with the case-law cited in paragraph 183 of the judgment in Superleague. However, as I have explained above, that requirement has consistently been referred to in the case-law concerning commercial ancillarity.

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60See, for example, Weatherill, S., ‘The impact of the rulings of 21 December 2023 on the structure of EU sports law’, The International Sports Law Journal, Vol. 23, 2023, pp. 409 to 415.

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Interestingly, it has been recently argued (Gryllos, G., ‘Anticompetitive object / effect: An overview of EU and national case law’, 21 March 2025, e-Competitions, Art. No. 123946, p. 9) that the requirements, in the EU case-law, that the legitimate objectives in the public interest should not be anticompetitive in nature and that the measure in question does not eliminate all competition are reminiscent of the position taken by the Supreme Court of the United States in some sports-related cases. In those cases, that court refused to grant special dispensation from the Sherman Act in favour of restraints to trade, imposed by sporting associations, on the ground that those restraints served social objectives more important than competition. See, recently, Opinion of the Supreme Court of the United States of 21 June 2021 (141 S. Ct. 2141 (2021)).

In that market, clubs and players are only involved as service recipients.

2021/2058(INI) (OJ 2022 C 224, p. 2). Emphasis added. The term ‘recent reforms’ referred, as far as I understand it, to those which led to the adoption of the FIFA Football Agent Regulations.

See, for example, ‘Study on sports agents in the European Union’, a study commissioned by the European Commission, November 2009, pp. 3, 4, 168 and 169, and Parrish, R. et al., Promoting and Supporting Good Governance in the European Football Agents Industry – Final Report, published by the European Commission, 2019, pp. 3, 4, 95, 96 and 127 to 129.

See above, point 32 of the present Opinion.

See above, point 42 of the present Opinion.

See, mutatis mutandis, judgment of 11 April 2000, Deliège (C‑51/96 and C‑191/97, EU:C:2000:199, paragraphs 56 and 57).

See points 17 to 28 of that Opinion.

See points 53 to 113 of that Opinion.