On 18 May 2016, the day the first part of this blog was published, the Commission said in response to the Hungarian MEP Péter Niedermüller’s question, that it had “not specifically monitored the tax relief (…) but would consider doing so. The Commission cannot prejudge the steps that it might take following such monitoring. However, the Commission thanks (Niedermüller) for drawing its attention to the report of Transparency International.”

With the actual implementation in Hungary appearing to deviate from the original objectives and conditions of the aid scheme, as discussed in part 1 of this blog, a possible monitoring exercise by the Commission of the Hungarian tax benefit scheme seems appropriate. The question remains, however, whether the Commission follows up on the intent of monitoring, or whether the intent should be regarded as empty words. This second part of the blog will outline the rules on reviewing and monitoring (existing) aid, both substantively and procedurally. It will determine, inter alia, whether the State aid rules impose an obligation upon the Commission to act and, if so, in what way.

In order to correctly decipher the potential consequences of Hungary’s behavior under EU State aid law, it is necessary to make a distinction between the part of the aid scheme declared compatible in the tax benefit scheme in the Hungarian sport sector decision, i.e. the donations for the sport infrastructures used by the professional sport organizations, and the donations used to cover personnel costs. Due to the fact that these two types of donation destinations were allowed based on two different exception procedures (the general exception found in Article 107(3)c) TFEU for the aid to sport infrastructure, and the General Block Exemption Regulation or the de minimis aid Regulation for the aid to cover personnel costs), the rules on reviewing and monitoring aid differ slightly. This blog will only focus on the review and monitoring rules of the tax benefit scheme in the Hungarian sport sector decision. 

Reviewing and monitoring State aid schemes – a Commission obligation?

A decision to approve an aid scheme (also known as a “positive decision” under Article 9(3) of the Procedural Regulation 2015/1589), should not fully release the Commission from any obligations regarding ex post control of that scheme. As can be read from Article 108(1) TFEU, “(t)he Commission shall, in cooperation with Member States, keep under constant review all systems of aid existing in those States. It shall propose to the latter any appropriate measure required by the progressive development or by the functioning of the internal market.”

The Commission’s responsibilities appear straightforward. After declaring the Hungarian tax benefit scheme compatible with EU law, it is obliged to review the implementation and usage of the aid by the Member State and the beneficiary, or beneficiaries. The CJEU settled as far back as 1974 that the Commission’s obligation to review existing aid is binding and that the Member States in question the obligation to cooperate with the Commission.[1] In fact, as Advocate General Lenz stated in his opinion in the Namur-Les Assurances du Crédit case, the Commission’s task to constantly review aid is even more necessary for aid schemes, like the Hungarian tax benefit scheme, as compared to individually authorized aid measures.[2] Pursuant to Article 108(1) TFEU and Article 21 of the Procedural Regulation, where the Commission considers that an existing aid scheme is not, or is no longer, compatible with the internal market instead of immediately launching a formal investigation, the Commission must issue a recommendation to the Member State concerned. The recommendation may propose, in particular:

1. Substantive amendment of the aid scheme;
2. Introduction of procedural requirements; or
3. Abolition of the aid scheme.[3]

It is important to note that in accordance with Article 288 TFEU, fifth sentence, recommendations have no binding force. Therefore, the proposed measure itself is not binding for the Member State. Only where the Member State accepts the proposed measure, shall it be bound by its acceptance to implement the appropriate measure.[4] However, if the Member State refuses to accept and implement the recommendations, the Commission could launch a formal investigation in accordance with Article 108(2).[5] Article 108 (1) TFEU and Article 21 of the Procedural Regulation also require the Member States to cooperate with the Commission for the purpose of reviewing aid schemes. This cooperation is further specified in Article 26 of the Procedural Regulation, which obliges Member States to submit annual reports on existing aid schemes to the Commission.[6] The reports allow the Commission to monitor the compliance with the positive decision by the Member State. As was already discussed in part 1 of this blog, Hungary too is required to submit a yearly monitoring report containing information on the total aid amount allocated, the sport infrastructure projects funded, their beneficiaries, etc.[7] A failure by Hungary to submit an annual report, would allow the Commission to propose an appropriate measure as listed above.[8] Whether Hungary actually submits annual reports to the Commission is currently unclear.      

Monitoring the tax benefit scheme in the Hungarian sport sector – not as straightforward as it appears

The Commission has repeatedly expressed its ambition for more and better monitoring of State aid schemes. This ambition follows from its primary objective to increase Commission enforcement focus on cases with the biggest impact on the internal market, as can be read from, inter alia, the State Aid Modernisation (SAM) Communication of 2012. Better targeted State aid control means an “increased responsibility of Member States in designing and implementing aid measures” for cases of a more local nature and with little effect on trade, as well as “enhanced ex post monitoring by the Commission to ensure adequate compliance” with the State aid rules.[9] In 2006, the Commission introduced a regular, ex post, monitoring exercise of existing aid schemes. The monitoring exercise gradually increased from 20 different schemes in 2006, to 75 schemes in 2014, covering all Member States, all main types of aid approved as well as block-exempted schemes.[10] The monitoring exercises conducted in 2014 led to the openings of four formal investigations.[11] The willingness to increase monitoring seems logical when taking into account EU case law, which imposes, in practice, an obligation for the Commission to review previously approved aid schemes. Yet, only a very small amount of existing aid schemes is monitored, nor is it realistically possible to do monitor all the schemes. As can be read in the recently published DG Competition Management Plan 2016, over the last 10 years the Commission declared over 3000 aid schemes or measures compatible with EU law after a the preliminary phase (“decisions not to raise objections”) alone.[12] This amount does not take into account positive decisions or block exempted aid schemes and measures, all of which should, strictly speaking, be monitored. Exact numbers on the amount of existing aid schemes currently running throughout the EU are not available, but one could safely say that the overwhelming majority of existing aid schemes are not monitored. Unless the State aid department of the Commission dramatically increases its resources, both in terms of finances and staff, monitoring all existing State aid schemes will remain utopic.  

The “specificity” of State aid to the professional sport sector and why extra monitoring in the sector should be considered

The Hungarian tax benefit scheme is not functioning in accordance with its original objectives: many of the sport infrastructure projects funded with public money do not seem strictly necessary and selected professional football clubs benefitted disproportionately. Under these circumstances, a monitoring exercise conducted by the Commission could be needed. If a monitoring exercise confirms disproportionate spreading of subsidies, a consequent set of appropriate measures taken by Hungary could bring the scheme in line with its original objectives. However, given that the majority of schemes are not monitored, there is a very big chance that the Hungarian tax benefit scheme is not one of the “lucky ones” selected. It is also unclear whether the Commission’s answer to the Parliamentary question of 18 May in any way increases that probability.  

The State aid complaint procedure as an alternative

Another way to force the Commission to look into the aid scheme, not yet discussed above, is through a State aid complaint procedure. Although the tax benefit scheme was already approved by the Commission in 2011, this should not rule out the possibility of an interested party submitting a complaint to inform the Commission of any alleged unlawful aid.[13] Pursuant to Article 12(1), the Commission is obliged to examine without undue delay a complaint by an interested party, thereby automatically triggering the preliminary State aid investigation of Article 108(3) TFEU. Although ‘unlawful aid’ refers to new aid put into effect in contravention of Article 108(3) TFEU[14], and not existing aid, such as aid schemes authorized by the Commission[15], ‘new aid’ also refers to existing aid that has been altered by the Member State.[16] In accordance with the Commission’s State Aid Manual of Procedures, for an aid scheme to be altered, the complainant would need to demonstrate that a change has taken place that affects “the evaluation of the compatibility of the aid with the common market”.[17] In addition to this, the complaint would need to include, inter alia, information on the (functioning of) the scheme, the amount of aid granted, and why the scheme is no longer compatible under Article 107(3).[18] A further highly important criterion is for the interested party to demonstrate to the Commission that the complainant is directly affected in its “competitive position” by the aid scheme.[19] This criterion empowers the Commission to separate formal complaints from the complaints that are “not motivated by genuine competition concerns”, thereby reducing considerably its workload of having to launch a (preliminary) investigation based on every single complaint it receives.[20] Complaints submitted by complainants, who the Commission does not consider to be interested parties, will be regarded as “general market information”[21] and do not oblige the Commission to investigate.  

The “specificity” of State aid to professional sport – no complaints by other clubs

The “interested party” criterion was only added after the reform of the Procedural Regulation in 2013[22], and has affected the professional sport sector considerably. The two years prior saw great activity by the Commission in the sector, including the opening of four formal investigations into alleged State aid to professional football clubs like Real Madrid and Valencia CF.[23] The investigations into alleged aid granted to Real Madrid and Valencia CF were not launched after the submission of a complaint by an interested party, but after “the attention of the Commission was drawn by press reports and information sent by citizens in 2012-2013”.[24] The end of formal investigations into alleged aid granted to professional sport clubs coincided with the introduction of the “interested party” criterion: since citizens are not considered interested parties, the Commission does not have an obligation anymore to investigate complaints, or any form of information, submitted by them. At this moment, only complaints submitted by interested parties, i.e. a party directly affected in its competitive position, have the potential of triggering fresh State aid investigations in the professional sport sector.[25]

Which persons or undertakings fulfill the “interested party” criterion? The answer to this question requires a case by case analysis and depends on the aid measure or scheme chosen by the public authorities.[26] Nonetheless, where aid is granted to a professional sport club, the clearest example of an interested party would be another professional sport club. Getting professional sport clubs to submit State aid complaints is, however, easier said than done. Contrary to other economic sectors where competitors would complain if they feel that they are directly affected in their competitive position, no professional sport club has ever submitted a State aid complaint, nor is it likely to happen anytime soon. As is confirmed by Dutch professional football club FC Groningen’s director Hans Nijland in an article published on 18 May by the Dutch magazine De Groene Amterdammer , “if (another football club) manages to sign a deal with its municipality, I will not complain. In fact, I would say congratulations, well done”.[27] The same mentality probably prevails in Hungary, making it very unlikely that a Hungarian professional football club, or any other professional sport club, decides to submit a complaint alleging unlawful aid to, say, Puskás Akadémia FC due to the disproportionate distribution of subsidies under the tax benefit scheme.  

Why extra monitoring in the sport sector should be considered

The advantages of EU State aid control include efficient government spending in the economy as well as better accountability and transparency of aid measures.[28] Nonetheless, with the chances of the Commission monitoring existing aid in professional sport, such as the Hungarian tax benefit scheme, being very slim, and given the unlikeliness of a submission of a complaint by a competing professional sport club, how useful are the State aid rules to achieve better accountability and transparency in (professional) sport? Local governments will continue spending large amounts of public money on projects that distort competition and are contrary to the general public interest, without a meaningful risk of being called back. Furthermore, as long as the Commission does not prioritize State aid enforcement to the professional sport sector, similar to how it enforces the State aid rules regarding fiscal aid to multinationals[29], it is also unlikely that it will investigate ex officio.

From the “efficient use of Commission resources” viewpoint, it is, in a way, understandable that the Commission has decided not to prioritize State aid to professional sport. They are, after all, not the most distortive State aid cases. However, this lack of prioritization is not being compensated with the submission of complaints by interested parties, meaning that public authorities have less to fear from State aid control in the professional sport factor, as compared to other market sectors.

To prevent a complete carte blanche for the public authorities, I would argue that the Commission should impose upon itself stricter conditions as regards monitoring State aid measures and scheme to the benefit of professional sport clubs. The current monitoring system, where the chance of being monitored is smaller than not being monitored, is inefficient in a sector where competitors do not serve as watchdogs. Only by radically increasing the monitoring chance in the professional sport sector can better accountability and transparency of aid measures be achieved.

[1] Case 173/73, Italy v Commission, [1974] ECLI:EU:C:1974:71, para 24.

[2] Opinion of Advocate General Lenz in Case C-44/93, Namur-Les Assurances du Crédit SA v Office Nationale du Ducroire , [1994] ECLI:EU:C:1994:262, para 86.

[3] Procedural Regulation 2015/1589, Article 22. Contrary to the decision options of formal investigations, a decision to order a recovery of the aid from the beneficiary or beneficiaries, as listed in Procedural Regulation, Articles 9(5) and 16, is not an option for the “review procedure”.

[4] Ibid., Article 23(1).

[5] The Enterprise Capital Funds (ECF) decision is a good example of a formal investigation based on ex post review and monitoring. Following a “selected” monitoring exercise in 2011, it was discovered that the UK had failed to take the appropriate measures to bring an aid scheme in line with the Commission Guidelines on Risk Capital , even though it had promised to do so. This led to the Commission opening a formal investigation in November 2011.

[6] Pursuant to Procedural Regulation, Article 26(1), the obligation to submit annual reports applies to decisions “to which no specific reporting obligations have been imposed in a conditional decision”. Under a conditional decision, the Commission attaches to a decision conditions subject to which aid may be considered compatible with the internal market. The tax benefit scheme in the Hungarian sport sector decision has no specific conditions attached to it, apart from the usual obligation for the Member State concerned to submit an annual report to the Commission.

[7] Commission Decision of 9 November 2011, SA.31722 – Hungary - Supporting the Hungarian sport sector via tax benefit scheme , para 57.

[8] Procedural Regulation 2015/1589, Article 26(2).

[9] EU State Aid Modernisation Communication of 8 May 2012 , para 19.

[10] Commission Staff Working Document of 4 June 2015, “ Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on Competition Policy 2014 ”, page 10.

[11] Ibid. One of the investigations involved the Enterprise Capital Funds scheme – Supra n5.

[12] DG Competition document of 18 March 2016 REF. Ares(2016)1370536 “ Management Plan 2016 ”, page 15.

[13] Procedural Regulation 2015/1589, Article 24(2).

[14] Ibid., Article 1(f).

[15] Ibid., Article 1(b)(ii).

[16] Ibid., Article 1(c).

[17] Internal DG Competition working documents on procedures for the application of Articles 107 and 108 TFEU of 10 July 2013, State Aid Manual of Procedures , Section 5, para 1.2.1.

[18] A complaint that does not comply with the compulsory complaint form, or if the complainant does not provide sufficient grounds to show the existence of unlawful aid can be withdrawn by the Commission. See Procedural Regulation 2015/1589, Article 24(2).

[19] Form for the Submission of Complaints Concerning Alleged Unlawful State Aid or Misuse of Aid , point 3.

[20] Draft Report by the European Parliament of 19 March 2013 on the proposal for a Council Regulation amending Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty (COM (2012) 725 final) , page 17.

[21] Supra., No 19.

[22] Council Regulation (EU) No 734/2013 of 22 July 20-13 amending Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty [2013] OJ L204/14.

[23] An explanation on why the public financing of sports infrastructure and professional sports clubs only started to attract State aid scrutiny in recent years can be read in: Ben Van Rompuy and Oskar van Maren, “EU Control of State Aid to Professional Sport: Why Now?” In: “The Legacy of Bosman. Revisiting the relationship between EU law and sport”, T.M.C. Asser Press, 2016.

[24] See, for example Commission decision of 18 December 2013, SA.36387 Spain – Alleged aid in favour of three Valencia football clubs, para 3. The other formal investigations to professional football clubs (i.e. Real Madrid , five Dutch football clubs and four Spanish football clubs ), were also launched after the Commission received information through citizens and/or the press.

[25] Or the Commission decides to open an investigation ex officio pursuant to Procedural Regulation 2015/1589, Article 12(1). However, this is very unlikely, given the lack of priority given by the Commission to sport.

[26] For example, in the case of the Hungarian tax benefit scheme, clubs or associations not active in the sport sector (e.g. theatre clubs, art clubs, etc.), could potentially argue that they have been placed in a disadvantageous position, since they cannot receive donations under the scheme. An aid measure provided in the form of advantageous land transactions, such as the Real Madrid case, could directly affect any undertaking interested in purchasing the same land, or any other plot of land against other market conditions.

[27] Hester den Boer and Bram Logger, “ Een spits van belastinggeld; Onderzoek – Lokale overheden blijven profvoetbal massaal steunen ”, De Groene Amsterdammer, 18 May 2016, page 5.

[28] See for example Oskar van Maren, “EU State Aid Law and Professional Football: A threat or a Blessing?” , European State Aid Law Quarterly, Volume 15 1/2016, pages 31-46.

[29] High profile formal State aid investigations into alleged aid granted by means of selective tax agreements between Member State governments and multinationals like Starbucks, Fiat, Amazon or Apple, have launched in the last few years.

The decision of the Bundesgerichtshof (BGH), the Highest Civil Court in Germany, in the Pechstein case was eagerly awaited. At the hearing in March, the Court decided it would pronounce itself on 7 June, and so it did. Let’s cut things short: it is a striking victory for the Court of Arbitration for Sport (CAS) and a bitter (provisory?) ending for Claudia Pechstein. The BGH’s press release is abundantly clear that the German judges endorsed the CAS uncritically on the two main legal questions: validity of forced CAS arbitration and the independence of the CAS. The CAS and ISU are surely right to rejoice and celebrate the ruling in their respective press releases that quickly ensued (here and here). At first glance, this ruling will be comforting the CAS’ jurisdiction for years to come. Claudia Pechstein’s dire financial fate - she faces up to 300 000€ in legal fees – will serve as a powerful repellent for any athlete willing to challenge the CAS.

Personally, I have, to put it mildly, mixed feelings regarding this decision. On the one hand, I am relieved that the BGH did not endorse the reasoning used by the Landgericht München in its ruling, challenging the necessity of forced CAS arbitration. But, on the other hand, I am rather disappointed that the BGH failed to endorse the balanced reasoning used by the Oberlandesgericht München in its decision (I translated the relevant parts of the ruling here). I believed this framing of the case would have offered a perfect vantage point to force a democratic reform of the CAS without threatening its existence. For those concerned with a potential flood of appeals, this could easily have been avoided by barring Claudia Pechstein to prevail on the merits of the case (or through preclusion for example). There was room for mild audacity and transnational constitutionalism (as I argued elsewhere), but the BGH opted for conservatism and conformism. I deeply regret it.

Though it is always perilous to comment on a case based only on a preliminary press release, I will offer here some (critical and preliminary) thoughts on the main aspects of the BGH’s legal reasoning.

I.               This is not forced arbitration (or is it?)

Paradoxically (or not), I chose to start with the end of the BGH’s press release discussing the validity of the arbitration agreement. The BGH is also very much drawn to paradoxes in this final paragraph of its press release. In a first sentence it states rather bluntly that Pechstein has freely signed the arbitration agreement in favour of the CAS.[1] Yet, conscious of the absurdity of such a claim (unless one means only that Pechstein was free to decide to become a professional speed-skater), it immediately qualifies its assertion by claiming that in any case the fact that she was forced to sign the agreement does not imply that it is invalid.[2] This is justified on the basis of a balancing exercise (which is not detailed in the press release and will be important to scrutinize in the final judgment) between the athlete’s fundamental right to a judge and her freedom to provide services and the constitutionally protected autonomy of associations (e.g. ISU).[3] This is particularly so, because Claudia Pechstein could appeal a CAS award to the Swiss Federal Tribunal (SFT).[4] Thus, she had access to a national judge and did not necessitate recourse to the German courts.[5]

Hidden in this relatively small paragraph, compared to the overall press release, are many controversial statements and assumptions. First, the claim that Claudia Pechstein (and any other international athlete for that matter) freely submits to CAS arbitration is surreal. So unconvincing, that the BGH itself debunks it in the following phrase. What is it then? Free consent or forced consent? You need to choose! In fact, CAS arbitration is always (in appeal cases) forced arbitration. This should be openly acknowledged by the BGH and the SFT. Instead, they are forced into logical convolutions that can only be perceived, in the SFT’s own words, as “illogical”.[6] Second, the balancing exercise conducted by the BGH should be scrutinized. Unfortunately, there is very little information on this balancing in the press release. Yet, one should not accept a restriction on the freedom of an athlete to provide services and on its fundamental right to access national courts, unless a forced CAS arbitration is shown as absolutely necessary to secure the autonomy of the Sports Governing Bodies (SGBs). Moreover, such a weighty restriction on the fundamental rights of an athlete should imply a strict assessment of the quality of the judicial process at the CAS. In light of the BGH’s assessment of the independence of the CAS (see more on this in part II.), one can doubt that it has taken this balancing exercise seriously. Finally, the claim that access to the SFT could compensate for the loss of Claudia Pechstein’s access to German Courts is ludicrous, or in good German realitätsfremd. Any CAS practitioner knows that the SFT favours (to its credit openly) a “benevolent”[7] approach to the CAS, and that it is extremely reluctant to overturn awards on the basis of procedural or substantial ordre public.[8] Winning an appeal against a CAS award in front of the SFT is a bit like Leicester City winning the Premier League, an oddity.

Based on the BGH’s press release, the ruling seems at best vague and unpersuasive and at worse negligent in its assessment of the factual and legal situation. One can well argue that on balance of interests, forced CAS arbitration might be necessary to preserve the existence of international SGBs and their competitions, but this would imply a way stricter assessment of the institutional independence of the CAS, which is entirely lacking in the press release. 

II.             The (in)dependence of the CAS

The core of the press release concerns the independence of the CAS. The BGH considers that the CAS is a true arbitral tribunal in the sense of German civil procedural law and that it is not structurally imbalanced in favour of the SGBs.[9] Therefore, forcing athletes to arbitrate disputes at the CAS does not constitute an abuse of dominant position. 

I contend that the BGH’s assessment of the independence of the CAS is, based on this press release, imprecise and in some regards even erroneous. It relies on four main arguments:

• SGBs and athletes share the same interest in the fight against doping
• SGBs and athletes share the same interest in having a uniform and swift sporting justice
• The CAS Code allows for sufficient safeguards in case an arbitrator is not sufficient independent/impartial
• The athlete can appeal to the SFT to challenge the lack of independence of an arbitrator

In the following sections of this blog, I will aim at critically unpacking and deconstructing these four arguments one by one.

A.    The shared interest of athletes and SGBs in the fight against doping

In a first paragraph, the BGH sets out to rebut the OLG’s argument that the CAS is structurally imbalanced in favour of the SGBs, i.e. due to the selection process of CAS arbitrators included in the CAS list. In the past, and still nowadays, it is the ICAS, a body constituted of 20 members nominated overwhelmingly by the SGBs, which decides who gets to be on the CAS list. Currently, based on their official CVs available on the CAS’ website, 13 out of 20 ICAS members have direct links with SGBs. Hence, the OLG’s reasonable assumption that the selection process of arbitrators could lead to the perception that the CAS was in a way captured by the SGBs and prone to favour their interests.

The BGH’s trick to rebut this finding of the OLG is to merge the interests of the athletes and of the SGBs into a shared objective of fighting against doping.[10] This is, bluntly speaking, ludicrous. It would be like arguing that the independence of the criminal justice is redundant, because both the State and the accused citizen share an interest in public safety and security. This is legal nonsense and is not up to the standards of the BGH. It is easy to discern that beyond an undoubtedly shared concern for the fight against doping, the athlete and the SGB involved in a particular dispute over a failed anti-doping test have radically opposite interests. Consequently, the independence of the CAS is crucial to ensure that the SGBs do not abuse their legitimate regulatory and executive powers in an anti-doping dispute. 

B.    The shared interest in a uniform and swift sporting justice

The BGH, thereafter, argues that the CAS would be necessary to ensure the uniformity and swiftness of sporting justice and that this would be also in the interest of the athletes.[11] I actually share the view of the BGH on this need for a uniform sporting justice embodied by the CAS. Still, the German judges fail to comprehend that this argument can be used only to justify the post-consensual foundations of the CAS, but is toothless to promote laxer standards of independence for the CAS. The need for uniformity and swiftness might call for a single institution having mandatory jurisdiction, but not for this same institution to be captured by the SGBs or to fail to ensure due process guarantees. Here, ironically, the BGH is laying the ground for a strict review: the recognized necessity of forced arbitration calls for an impeccable CAS on the due process side.

C.    The CAS Code safeguards the independence/impartiality of CAS arbitrators

In the following sections of its reasoning, the BGH argues that any remaining imbalance of the CAS in favour of the SGBs could be remedied via the procedural safety mechanisms included in the CAS code.[12] In the full judgment it probably refers to article S.18 CAS Code providing that arbitrators have to sign “an official declaration undertaking to exercise their functions personally with total objectivity, independence and impartiality, and in conformity with the provisions of this Code” and to article R.33 CAS Code stating that “[e]very arbitrator shall be and remain impartial and independent of the parties and shall immediately disclose any circumstances which may affect her/his independence with respect to any of the parties.” Based on article R.34 CAS Code, any challenge of an arbitrator on the basis of the latter provision must be submitted to the ICAS Board composed of six members, five of which are or have been in the past involved in executive positions in SGBs. In these conditions, it should be obvious that challenging the independence of an arbitrator vis-à-vis the SGBs is extremely unattractive for an athlete, even more so when considering that in case of failure there is a risk of alienating the arbitrator in question. This is why the CAS’s independence issue is systemic and cannot be solved without re-designing the selection process and composition of the ICAS.

Furthermore, the BGH also argues that both parties can chose an arbitrator and that both arbitrators will then designate the President of the panel.[13] This is plainly wrong. In appeal cases, concerning almost all the anti-doping cases and which was the procedure followed in the Pechstein case, it is the President of the appeal division that designates the President of the panel.[14] The president of the division is also the one in charge of ensuring “that the arbitrators comply with the requirements of Article R33”. [15]  This person is directly nominated by ICAS and it suffices to remind that the previous holder of this position was (until 2013) Thomas Bach (now IOC President, then IOC Executive Board member), to demonstrate how doubtful its independence from the SGBs was and still is. It is difficult to understand how such a basic mistake has found its way into a BGH press release. Even the official CAS Code Commentary by the CAS Secretary General openly justifies this exclusive prerogative of the President of the appeal division by stating that she “can better evaluate if it is preferable to appoint an experienced arbitrator in order to act as chairman of the Panel or a less experienced CAS arbitrator, who is not widely known to the parties but who would have the necessary background to rule on a particular case”.[16] The dilettante manner in which the BGH has conducted its assessment of the CAS’ independence contrasts strongly with the OLG’s thorough discussion of the problematic role of the ICAS and of the president of the appeal division.[17]  

D.    The SFT’s control of the independence/impartiality of CAS arbitrators

Finally, and this is a point already touched upon in the first part of this blog, the BGH insists that the losing party has the possibility to appeal to the SFT, which can annul the award.[18] The problem is, again, that the SFT is a mere paper tiger. Yes, it intervened (mildly) in the famous Gundel case in 1993, because back then the IOC was directly and openly controlling the CAS, but since then it has adopted a very narrow interpretation of the scope for challenges of the independence of CAS arbitrators.[19] Generally, the SFT considers the CAS as a necessary evil that should be (very) benevolently checked. This is hardly a credible avenue to ensure that its decisions abide by the democratic standards called for on the basis of its mandatory global jurisdictions.[20]

Conclusion: A missed opportunity

In work of arts, I am, and remain, a fond admirer of Magritte’s surrealist take on life. Yet, I doubt that a Court should engage in a similar exercise when drafting its judgments. Its role is to get its facts right (or close to right) and find the fitting interpretation of the law in a particular context. In the present case, I believe the BGH failed on both fronts. In its press release it misrepresented basic facts (that can be checked in two clicks via google) on the functioning and institutional structure of the CAS, often concerning facts that were already available in the OLG’s judgment. This is extremely worrying for such a reputable Court. Additionally, it failed to properly understand its constitutional role vis-à-vis the CAS and the need to ensure that basic due process rights of athletes are respected at the CAS. This needed not entail the death of the CAS, nor the end of its mandatory jurisdiction, nor even that Pechstein should be allowed to have her liability claim heard (a flood of appeals could have been easily avoided). Instead, a reform of the CAS could have been simply achieved by a subtle Solange formula stating roughly that forced CAS arbitration is fine ‘as long as’ the independence of the CAS is safeguarded and the due process rights of athletes warranted. Hopefully, the case will move to the Bundesverfassungsgericht (and it is still pending before the European Court of Human Rights), which knows a thing or two about Solange formulas…

[1] “Die Klägerin hat die Schiedsvereinbarung freiwillig unterzeichnet.”

[2] “Dass sie dabei fremdbestimmt gehandelt hat, da sie andernfalls nicht hätte antreten können, führt nicht zur Unwirksamkeit der Vereinbarung.”

[3] “Denn auch insoweit ergibt die Abwägung der beiderseitigen Interessen am Maßstab des § 19 GWB eine sachliche Rechtfertigung der Verwendung der Schiedsklausel, die nicht gegen gesetzliche Wertentscheidungen verstößt. Dem Justizgewährungsanspruch der Klägerin sowie ihrem Recht auf freie Berufsausübung steht die Verbandsautonomie der Beklagten gegenüber.”

[4] “Schließlich ist der Klägerin im Anschluss an das Schiedsgerichtsverfahren Zugang zu den nach internationalem Recht zuständigen schweizerischen Gerichten möglich.”

[5] “Ein Anspruch gerade auf Zugang zu den deutschen Gerichten besteht danach nicht.”

[6] “Qu'il y ait un certain illogisme, en théorie, à traiter de manière différente la convention d'arbitrage et la renonciation conventionnelle au recours, sous les rapports de la forme et du consentement, est sans doute vrai.” BGE 133 III 235, at 245.

[7] “Exprimée d'une autre façon, cette logique veut que le maintien d'une possibilité de recours constitue un contrepoids à la "bienveillance" avec laquelle il convient d'examiner le caractère consensuel du recours à l'arbitrage en matière sportive.”

[8] See on this difficulty A. Rigozzi, Challenging Awards of the Court of Arbitration for Sport, J Int. Disp. Settlement (2010) 1 (1): 217-265.

[9] “Der CAS ist ein "echtes" Schiedsgericht im Sinne der §§ 1025 ff. ZPO.”

[10] “Denn die Verbände und die Athleten stehen sich nicht als von grundsätzlich gegensätzlichen Interessen geleitete Lager gegenüber. Vielmehr entspricht die weltweite Bekämpfung des Dopings sowohl den Interessen der Verbände als auch denen der Athleten.”

[11]“Die mit einer einheitlichen internationalen Sportsgerichtsbarkeit verbundenen Vorteile, wie etwa einheitliche Maßstäbe und die Schnelligkeit der Entscheidung, gelten nicht nur für die Verbände, sondern auch für die Sportler.”

[12] “Ein dennoch verbleibendes Übergewicht der Verbände wird ausgeglichen durch die Verfahrensordnung des CAS, die eine hinreichende individuelle Unabhängigkeit und Neutralität der Schiedsrichter gewährleistet.”

[13] “Der konkret an dem Verfahren vor dem CAS beteiligte Sportverband - hier die ISU - und der Athlet müssen je einen Schiedsrichter aus der mehr als 200 Personen umfassenden Liste auswählen. Diese Schiedsrichter bestimmen gemeinsam den Obmann des Schiedsgerichts. Ist ein Schiedsrichter befangen, kann er abgelehnt werden.”

[14] Article R54 CAS Code: “If three arbitrators are to be appointed, the President of the Division shall appoint the President of the Panel following nomination of the arbitrator by the Respondent and after having consulted the arbitrators.”

[15] Article R54 CAS Code.

[16] See footnote 2 in M. Reeb & D. Mavromati, The Code of the Court of Arbitration for Sport. Commentary, cases and materials. Kluwer, 2015, p.479.

[17] See generally A. Duval & B. van Rompuy, The Compatibility of Forced CAS Arbitration with EU Competition Law: Pechstein Reloaded. Available at SSRN: http://ssrn.com/abstract=2621983.

[18] Die unterliegende Partei hat die Möglichkeit, bei dem zuständigen schweizerischen Bundesgericht um staatlichen Rechtsschutz nachzusuchen. Das schweizerische Bundesgericht kann den Schiedsspruch des CAS in bestimmtem Umfang überprüfen und gegebenenfalls aufheben.

[19] See L. Beffa, 'Challenge of international arbitration awards in Switzerland for lack of independence and/or impartiality of an arbitrator – Is it time to change the approach?' (2011) 29 ASA Bulletin, Issue 3, pp. 598–606

[20] Here I implicitly refer to the pathbreaking democratic theory for international courts developped in A. Von Bogdandy & I. Venzke, In Whose Name? A Public Law Theory of International Adjudication, Oxford University Press, 2014.