Case C-49/07

Motosykletistiki Omospondia Ellados NPID (MOTOE)

v

Elliniko Dimosio

(Reference for a preliminary ruling from the Diikitiko Efetio Athinon)

(Articles 82 EC and 86 EC – Concept of ‘undertaking’ – Non‑profit‑making association representing, in Greece, the International Motorcycling Federation – Concept of ‘economic activity’ – Special legal right to give consent to applications for authorisation to organise motorcycling events – Exercise in parallel of activities such as the organisation of motorcycling events and the conclusion of sponsorship, advertising and insurance contracts)

Summary of the Judgment

1.        Competition – Community rules – Undertaking – Meaning

(Arts 81 EC and 82 EC)

2.        Competition – Public undertakings and undertakings to which the Member States grant special or exclusive rights

(Arts 82 EC and 86 EC)

1.        A legal person whose activities consist in organising sports competitions and in entering, in that connection, into sponsorship, advertising and insurance contracts designed to exploit those competitions commercially, and constitute for that entity a source of income, must be classified as an undertaking for the purposes of Community competition law. The fact that an economic activity has a connection with sport does not hinder the application of the rules of the Treaty, including those governing competition law.

That conclusion is not affected by the fact that the entity has the power to give its consent to applications for authorisation submitted to the public authorities to organise competitions, since it is necessary to distinguish the participation of that entity in the decision‑making process of those authorities and the economic activities in which it engages, such as the organisation and commercial exploitation of competitions. Nor does the fact that it does not seek to make a profit, where its offer of goods or services exists in competition with that of other operators, prevent that conclusion. In this respect, non‑profit‑making associations which offer goods or services on a given market may find themselves in competition with one another. The success or economic survival of such associations depends ultimately on their being able to impose, on the relevant market, their services to the detriment of those offered by the other operators.

(see paras 22-23, 26-28)

2.        Articles 82 EC and 86 EC preclude a national rule which confers on a legal person, which organises sports competitions and enters, in that connection, into sponsorship, advertising and insurance contracts, the power to give consent to applications for authorisation to organise such competitions, without that power being made subject to restrictions, obligations and review.

A system of undistorted competition, such as that provided for by the Treaty, can be guaranteed only if equality of opportunity is secured as between the various economic operators. To entrust a legal person, which itself organises and commercially exploits sports competitions, the task of giving the competent administration its consent to applications for authorisation to organise such competitions, is tantamount de facto to conferring upon it the power to designate the persons authorised to organise those competitions and to set the conditions in which those events are organised, thereby placing that entity at an obvious advantage over its competitors. Such a right may therefore lead the undertaking which possesses it to deny other operators access to the relevant market or to distort competition by favouring competitions which it organises or those in whose organisation it participates.

(see paras 51-53, operative part)