Discussion on the Application of European Union Competition Law to the Procedures for the Assignment of Category I, Category II and International Competitions in the Netherlands - KNHS
Parrish, Richard, The International Sports Law Journal
1. The Contested Procedure
1.1. For the purpose of determining the calendar for category I competitions and international competitions, the rules of the Dutch National Federation of Equestrian Sports (KNHS) state that 'both for competition participants and competition organisers it is important to aim to determine a competition calendar which from a sporting point of view and a commercial point of view coincides as much as possible with the wishes of all parties involved'. For this reason, in the year preceding a certain calendar year, a planning procedure is followed 'in order to be able on time to determine a balanced competition calendar for that calendar year'.
1.2. Rule 1.2 states that when deciding on applications for international competitions in the Netherlands (1) Per date and per discipline only one application for the organisation of a category I competition can be approved on the condition that no Dutch championship is being organised on that date for the age category concerned in the discipline concerned (2) If there are several applications for the organisation of an international competition in the same discipline the following becomes relevant (2(a)) a competition application for an international competition at level 4 * or 5 * is always given priority over an application for an international competition at level 1 *, 2 * or 3 * (2(b)) the KNHS argues in favour of the competition application for which it is true that the requested date is the traditional annual date on which an international competition is organised in the discipline concerned (2(c)) it will be attempted by mutual agreement to select another date for the organisation which does not traditionally and annually organise a competition in the discipline concerned. In this, the possibilities for an alternative competition programme are also considered (3) If, in the case of bottlenecks concerning the above, competition organisers reach agreement on an alternative solution it is possible in consultation with the KNHS to depart from the starting points given. (4) If, in the case of bottlenecks concerning the above, competition organisers are unable to reach agreement on an alternative solution, the Calendar Commission will issue a binding decision.
2. The EU Competition Law Provisions
2.1. Article 101 Treaty on the Functioning of the European Union (TFEU) (ex 81 TEC) provides that: 101(1) The following shall be prohibited as incompatible with the internal market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market, and in particular those which: (a) directly or indirectly fix purchase or selling prices or any other trading conditions; (b) limit or control production, markets, technical development, or investment; (c) share markets or sources of supply; (d) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage; (e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.
2.2. Article 101 (2) provides that: Any agreements or decisions prohibited pursuant to this Article shall be automatically void and 101(3) states that: The provisions of paragraph 1 may, however, be declared inapplicable in the case of: any agreement or category of agreements between undertakings, any decision or category of decisions by associations of undertakings, any concerted practice or category of concerted practices, which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not: (a) impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives; (b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question. …