Background to the complaint

1. The complainant is an association that provides sports activities and services in different individual and group disciplines to non-professional (amateur) players in Vienna, Austria. One of the disciplines in which the complainant is active is volleyball: at the time when the complaint was submitted, it had a women’s team in the second-highest Austrian league. According to the complainant, it is not involved in international scouting of players or similar activities. All the complainant’s players are amateur.

2. On 23 December 2017, the complainant made an infringement complaint to the European Commission about the Austrian rules governing fees on international transfer of players in amateur volleyball. The complainant took the view that due to these rules, Austria breaches EU law.[1] More specifically, the complainant argued that the Austrian Volleyball Federation charges excessive fees for the use of non-professional foreign female volleyball players, even for purely amateur players and clubs. This is so because every player who wants to play in the league needs to have an International Transfer Certificate. To obtain this certificate, the clubs need to pay several fees for players whose federation of origin is not the Austrian Volleyball Federation. On a yearly basis, the complainant had to pay the amount of EUR 480 to the European Association, up to EUR 650 to the association releasing the player concerned and EUR 400 to the Austrian Federation for each player whose federation of origin was not the Austrian Volleyball Federation – a total of EUR 1 530 for each player per year.

3. The complainant contended that the cost structure and the excessiveness of these fees are not only damaging to amateur sports, but also unacceptable from a legal point of view.

4. The complainant raised several concerns to argue that the fees are against EU law, including that they hinder the free movement of persons and discriminate against foreign players. The complainant contended that the fees may lead to the exclusion of amateur players from their sports activities. This in turn may negatively affect their professional, training or study possibilities. The fact that clubs need to pay the fees for players whose federation of origin is not the Austrian Volleyball Federation constitutes indirect discrimination. Moreover, the complainant raised concerns about the fees in light of EU competition law.

5. On 26 January 2018, the Commission acknowledged receipt of the infringement complaint and informed the complainant that the case had been assigned reference number CHAP(2017)03963.

6. On 17 December 2018, the Commission informed the complainant that it had not been in a position to take a decision on its infringement complaint yet. This was so because the issues raised required an in-depth analysis, and this analysis was still ongoing. The Commission added that it would get back to the complainant as soon as possible.

7. On 26 August 2021, the complainant sent an email to the Commission asking about the state of play of the case, given that almost four years had passed since the submission of the infringement complaint.

8. On 15 September 2021, the Commission replied to the complainant. It apologised for the delay and added that, in general, it intends to decide on infringement complaints within one year from their submission. However, in this case, the complainant’s infringement complaint had raised complex legal questions that required an in-depth and comparative investigation as well as consultations between several Commission departments. It also assured the complainant that it would get back to it as soon as the Commission had reached a decision on the matter.

9. Dissatisfied with the replies received, the complainant turned to the Ombudsman.

The inquiry

10. The Ombudsman opened an inquiry into how the Commission had handled the infringement complaint.

11. In the course of the inquiry, the Ombudsman received the Commission’s reply to the complaint. The Ombudsman inquiry team also inspected the Commission’s file on this case. In its reply, the Commission informed the Ombudsman that it had in the meantime (on 15 March 2023) sent a letter to the complainant informing it about its intention to close the case. Since the complainant did not react to the letter, the Commission finally decided to close the case on 18 April 2023.

Arguments presented to the Ombudsman

12. The complainant argued that the Commission had failed to handle its infringement complaint within a reasonable time; that it had failed to follow up on it, and to communicate with the complainant. The complainant contended that the Commission’s failure to act properly and in a timely manner had caused further damage to the amateur sports sector. The complainant claimed that the Commission should take a decision on whether to issue a letter of formal notice to Austria without further delay.

13. In its reply, the Commission acknowledged that it had taken long time to deal with the complaint, and expressed regret for this. It explained that the delay was caused by the complexity of the issues raised on the one hand, and the recent developments in EU sports law on the other.

14. The Commission explained that the complexity of the issues at stake required a detailed analysis by different Commission departments. At the same time, the Commission was of the view that it had to consider carefully the recent developments in EU sports law in its analysis of the case. This was particularly crucial, as at the time when the complaint was submitted, there was no case law of the Court of Justice of the European Union (CJEU) confirming unambiguously that amateur sports with no economic implications fell under the scope of EU law.[2] Therefore, the Commission decided that it should await the outcome of several cases pending before the CJEU, as the rulings might have legal implications for the specific issues raised in this infringement complaint. The Commission specifically referred, first, to the TopFit and Biffi judgment (June 2019)[3], which confirmed that EU citizens doing amateur sports, who have exercised their freedom of movement and who reside in a Member State other than that of their nationality, can rely on their rights granted by EU law.[4] Secondly, the Commission referred to the International Skating Union v Commission judgment (December 2020)[5] which concerned EU competition law. Since the case also touched upon the roles of the governing bodies in issuing the international rules for sports, the Commission concluded that it was in the interest of the complainant that the outcome of the case be taken into account in its assessment.[6] Lastly, the Commission mentioned three requests for preliminary rulings lodged between May 2021 and October 2022, which concerned, among other things, restrictions on free movement in the (professional) field of sports.[7]

15. As regards the decision to close the infringement complaint, the Commission found that the rules imposing the fees fell within the scope of EU law.[8] It agreed with the complainant that those rules might potentially restrict the free movement of EU citizens by making amateur sports less attractive for them. However, the Commission concluded that there is a legitimate objective behind the rules imposing the fees and that the fees appear to be proportionate to those objectives. Therefore, the potential restriction on EU citizens’ freedom of movement is justified in this case. Because of that, the Commission concluded that there is no reason to pursue the infringement proceedings against Austria at this moment. Since the complainant had previously noted that the fault may have been on the side of associations instead of the Member State concerned (Austria in this case), the Commission referred to its pre-closure letter where it had suggested that the complainant could bring the issue before a national court or file a separate competition law complaint with the Commission.

16. Lastly, the Commission recognised that it could have better communicated to the complainant the reasons why it was taking so long to deal with the infringement complaint, and provided him with more regular updates. It committed to do so in future cases.

The Ombudsman's assessment

17. The Ombudsman’s role in the area of infringement complaints covers the administrative and procedural handling of infringement complaints by the Commission, including the time taken and reasons given for any delays. The Ombudsman has taken the view that, if the time the Commission has taken to handle an infringement complaint was unnecessarily extended as the result of negligence or unjustified postponements by the Commission, this may constitute maladministration.[9]

18. In line with the Commission’s Communication EU law: Better results through better application[10], the Commission has an indicative deadline of one year from the registration of an infringement complaint to decide whether to issue a formal notice to the Member State concerned or to close the case. The Ombudsman has accepted that the Communication does not lay down an absolute requirement for the Commission to take a decision within one year. However, when the one-year time limit is exceeded, the principles of good administration require the Commission to provide specific and valid reasons for the time needed to deal with the case.[11]

19. In this case, the Commission clearly exceeded the indicative deadline for its initial assessment, as it took the Commission more than five years to close the infringement complaint. The overall time to deal with the infringement complaint appears long by any standard. This is all the more so because, in this case, the infringement complaint remained at the stage of its initial assessment during this time.[12]

20. The Commission has essentially argued that the case was complex and that the evolving nature of EU sports law also added to the time taken to handle the complaint. The Ombudsman has no reason to doubt these statements as such. While the Commission was certainly not inactive on the file throughout the period from the receipt of the complaint until the closure of the case, the Ombudsman’s inquiry showed that that there were nevertheless periods in which no activity appeared to take place.

21. In 2018, right after the submission of the complaint, it appears the Commission took no action at all for almost a year and, following a holding reply sent to the complainant on 17 December 2018, it took the Commission more than one-and-a-half years to take additional steps in the case. However, this time span partly coincides with the period when the TopFit and Biffi case was pending before the CJEU.[13] While the Ombudsman considers that it was reasonable for the Commission to await the judgment in that case (which was subsequently issued on 13 June 2019), the Commission did not provide any specific explanations for why, following the judgment, it appears to have taken no action for over one year until when its first internal proposal appears to have been drafted (in July 2020). The Commission also appears to have been relatively inactive on the file between December 2020 and December 2022.

22. Although the Ombudsman considers that, in the circumstances, the Commission was justified in deciding to await also the judgment in the International Skating Union case (issued on 16 December 2020), it was not until the complainant itself contacted the Commission in August 2021 that the Commission gave it an update on the state of play. Three new requests for preliminary rulings related to EU sports law were lodged before the CJEU during the same timeframe. However, it appears that the Commission was ultimately able to reach a decision in this case in spite of all the three court cases still being pending before the CJEU.

23. The inactivity referred to above was most regrettable. However, there is nothing to suggest that the time taken was the result of negligence or unjustified postponements by the Commission as such. Taking into account the circumstances of the case[14]  and considering that the Commission has in the meantime closed the case after not having received any comments from the complainant, no further inquiries are justified into the complaint.

24. However, it is clear that the Commission could have communicated more proactively and clearly about how it was handling the infringement complaint. The complainant received only generic information about the state of play during the Commission’s assessment of the case. The Commission communicated with the complainant only sporadically and, on at least one occasion, only after the complainant itself asked the Commission for an update, following a long period of silence. The Commission also informed the complainant about the necessity to make a separate competition law complaint only when expressing its intention to close the file, that is, more than five years after the submission of the infringement complaint. This was, again, most regrettable.

25. The Ombudsman notes that the Commission has committed to improving how it communicates with complainants in future. If similar situations were to occur again, the Commission should provide complainants with more specific explanations explaining why an assessment is complicated or takes more time, rather than merely giving general information that a complaint raises complex legal issues. The same applies to the need to inform complainants at an early stage about the possibility to file a separate competition law complaint, where applicable. However, since the Commission appears to have acknowledged the shortcomings in this respect, there is no need to make specific suggestions for improvement about these issues.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion[15]:

No further inquiries are justified into the complaint.

The complainant and the Commission will be informed of this decision.

Tina Nilsson
Head of the Case-handling Unit

Strasbourg, 19/12/2023

 

[1] The complainant acknowledged that its complaint was mainly directed against the international volleyball structure and not against Austria (but the latter is part of the former).

[2] According to long standing case law of the Court of Justice of the European Union (CJEU), the question of sports has fallen under the scope of EU law as long as it constituted an economic activity (see e.g. cases 36/74 Walrave and Koch or C-415/93 Bosman). The Commission also acknowledged that the EU gained a specific competence in the field of sports with the entry into force of the Lisbon Treaty (see Articles 6(e) and 165 of the Treaty on the Function of the European Union (TFEU).

[3] Case C-22/18, TopFit and Biffi, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62018CJ0022.

[4] Specifically Articles 18 and 21 of the Treaty on the Functioning of the EU (the prohibition of non-discrimination and the right to move and reside freely within the territory of the Member States).

[5] Case T-93/18, International Skating Union v European Commission, ECLI:EU:T:2020:610. https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:62018TJ0093.

[6] The appeal to this case is currently still pending before the CJEU. Although the Commission in its reply acknowledged that this is a competition case, it was of the view that the ruling might have broader implications for EU sports law.

[7] Cases C-333/21, European Superleague Company (available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62021CN0333), C-680/21, Royal Antwerp Football Club (available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62021CN0680) and C-650/22, FIFA (available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62022CN0650).

[8] This position was explained both in the pre-closure letter to the complainant and in the reply to the Ombudsman.

[9] In this sense, see the Ombudsman’s decision in case 369/2018/JAP, available at: https://www.ombudsman.europa.eu/en/decision/en/119020.

[10] Point 8 of the Annex to the Communication, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.C_.2017.018.01.0010.01.ENG&toc=OJ%3AC%3A2017%3A018%3ATOC.

[11] See point 28 of the Ombudsman’s decision in case 425/2017/ANA, available at: https://www.ombudsman.europa.eu/en/decision/en/90387.

[12] In this sense, see also point 20 of the Ombudsman’s decision in case 604/2017/EIS, available at: https://www.ombudsman.europa.eu/en/decision/en/82444.

[13] From 2 November 2017 until 13 June 2019 (date when the judgment was rendered).

[14] Including confidential information disclosed by the Commission in the context of the inquiry.

[15] This complaint has been dealt with under delegated case handling, in accordance with the Decision of the European Ombudsman adopting Implementing Provisions