Are national football federation bodies governed by public law? Setting the boundaries of EU Public Procurement directives
| Published date | 01 February 2022 |
| Date | 01 February 2022 |
| Author | Víctor Torre de Silva |
| DOI | 10.1177/1023263X211063594 |
| Subject Matter | Case Notes |
Are national football federation
bodies governed by public law?
Setting the boundaries of EU
Public Procurement directives
Víctor Torre de Silva*
Abstract
Sports federations, being private associations, have traditionally awarded their contracts regardless
of EU Public Procurement directives. The Court of Justice of the European Union has recently
given its first ruling on this issue: Federazione Italiana Giuoco Calcio, judgment of 3 February
2021. This article intends to summarize and comment on this decision, a preliminary reference
requested by the Italian Council of State. The Court of Justice of the European Union has stated
that, if the sports federations depend on any state authority, namely the Italian National Olympic
Committee, they should comply with the Public Procurement directives. This might increase
transparency, although it could add structure and length to contract award procedures, above cer-
tain economic value. The judgment affirms that Italian sports federations have been established for
the specific purpose of meeting needs in the general interest, not having an industrial or commer-
cial character, but is less clear regarding whether they are subject to management supervision
from the Italian National Olympic Committee. The Court of Justice of the European Union defers
the final decision on dependency to the Italian court, thus giving little guidance to other Member
States.
Keywords
Public procurement, football federation, award of public contracts, preliminary ruling, state
control over sports federations
*
IE University, Madrid, Spain
Joined Cases C-155/19 & C-156/19, Federazione Italiana Giuoco Calcio (FIGC), Consorzio Ge.Se.Av. S.c.arl v. De Vellis Servizi
Globali Srl. Judgment of the Court (Fourth Chamber) of 3 February 2021. EU:C:2021:88
Corresponding author:
Víctor Torre de Silva, IE University, IE Law School, Calle María de Molina, 13, 28006 Madrid, Spain.
E-mail: victor.torre@ie.edu
Case Note
Maastricht Journal of European and
Comparative Law
2022, Vol. 29(1) 156–174
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X211063594
maastrichtjournal.sagepub.com
1. Introduction
The relationship between sport and EU law has always been both interesting and problematic. As
far back as the 1970s, sports authorities in Europe ‘started a campaign in order to achieve the rec-
ognition of a sporting exemption from the European rules’.
1
The campaign has largely been unsuc-
cessful, as regards both the Treaties
2
and Court of Justice of the European Union (ECJ) case law.
3
Since Walrave and Koch,
4
the Court has stated that at least some sporting activities and rules were
subject to EU law. Undoubtedly, the most widely-known ECJ case in this matter has been the
Bosman case,
5
which ‘revolutionized the European football industry’.
6
EU law has been applied by the ECJ in different areas of sport. Particularly relevant is non-
discrimination on grounds of nationality,
7
free movement of persons and free provision of services
(concerning players),
8
as well as Competition law.
9
However, there is an area that is still untouched
by ECJ case law: sports federation contracts. The judgment in Federazione Italiana Giuoco Calcio
addresses this exact issue.
Sports federations buy goods and services in the market. Their relationship with the actual prac-
tice of the sport may vary, but they all perform an economic activity, as far as case law is con-
cerned.
10
They must therefore comply with the Treaties, especially with the prohibition of
discrimination and the provisions on free movement of services. There is little doubt in this regard.
1 M. Papaloukas, ‘The Sporting Exemption Principle in the European Court of Justice’s Case Law’,The International
Sports Law Journal (2009), p. 7.
2 Article 165 TFEU (ex 149 EC), the only one devoted to sport, does not include any exemption form EU Law.
3‘The case law of the European courts and decisions of the European Commission show that the specificity of sport has
been recognised and taken into account. They also provide guidance on how EU law applies to sport. In line with estab-
lished case law, the specificity of sport will continue to be recognised, but it cannot be construed so as to justify a general
exemption from the application of EU law’: Commission of the European Communities, White Paper on Sport,
COM(2007) 391 final, at p. 13. This idea of specificity was not original: C. Miège, ‘Le sport dans l’Union
Européenne: entre specificité et exception?’,Études Européennes (2006), p. 1, www.booksport.ma/insertions/uploads/
2012/11/Le-sport-dans-l%E2%80%99Union-europ%2B%A9enne-entre-sp%2B%A9cificit%2B%A9-et-exception.pdf.
4 Case C-36/74 B.N.O. Walrave and L.J.N. Koch v. Association Union cycliste internationale, Koninklijke Nederlandsche
Wielren Unie et Federación Española Ciclismo, EU:C:1974:140.
5 Case C-415/93 Union royale belge des sociétés de football association ASBL v. Jean-Marc Bosman; Royal club liégeois
SA v. Jean-Marc Bosman and others; and Union des associations européennes de football (UEFA) v. Jean-Marc
Bosman, EU:C:1995:463.
6 D. Chalmers, G. Davies, and G. Monti, European Union Law (4th edition, Cambridge University Press, 2019), p. 792. Of
course, literature about this case is overwhelming. See the annotation of this Case by S. Weatherill, 33 Common Market
Law Review (1996), p. 991, who prophetically claims that ‘Bosman’s legal success will change football in particular and
sport in general’(at p. 992).
7 Besides Case C-36/74 Walrave and Koch: Case C-13/76 Gaetano Donà v. Mario Mantero, EU:C:1976:115; Case C-222/
86 Union nationale des entraîneurs et cadres techniques professionnels du football (Unectef) v. Georges Heylens and
others, EU:C:1987:442;
8 Besides Case C-415/93 Bosman: Joined cases C-51/96 & C-191/97 Christelle Deliège v. Ligue francophone de judo et
disciplines associées ASBL, Ligue belge de judo ASBL, Union européenne de judo and François Pacquée, EU:
C:2000:199; Case C-176/96 Jyri Lehtonen and Castors Canada Dry Namur-Braine ASBL v. Fédération Royale Belge
des Sociétés de Basket-Ball ASBL (FRBBSB), EU:C:2000:201; Case C-325/08 Olympique Lyonnais SASP v. Olivier
Bernard and Newcastle UFC, EU:C:2010:143. See R. Parrish, ‘Sport and the European Court of Justice’,inSports
law and policy in the European Union (Manchester University Press, 2003), p. 80, www.jstor.org/stable/j.ctt155jc4s.8.
9 Case C-519/04 David Meca-Medina and Igor Majcen v. Commission of the European Communities, EU:C:2006:492,
and more recently on State Aids Law, Case C-362/19 European Commission v. Fútbol Club Barcelona, EU:C:2021:169.
10 See Case C-415/93 Bosman, para. 73; Case C-519/04 Meca-Medina, para. 22; and Case C-325/08 Olympique Lyonnais,
para. 27.
Torre de Silva 157
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