No independent judge, no EU review: Anti-doping case dismissed by ECJ

The Court of Justice of the European Union has recently issued its decision in a case for a preliminary ruling initiated by the Austrian Independent Arbitration Committee. The Court was requested to answer various questions whether the practice of publication of anti-doping decisions is compatible with the EU’s General Data Protection Regulations.

The Court did not go into the merits of the ruling but instead found the proceedings to be inadmissible because the body initiating the request for a preliminary ruling - the Austrian Independent Arbitration Committee - was deemed not to be a ‘court or tribunal’ as per Article 267 Treaty on the Functioning of the European Union and not competent to submit the request as it did not fulfil the criterion of ‘independence’.

In this article, the author takes a closer look at the ECJ’s decision and discusses the main arguments.

Article Highlights

• Determining whether referring body is a ‘court or tribunal’ under TFEU
• Fulfilling the criterion of independence
• How does the decision fit with previous case law?
  • Analysis of the removal of judges on ‘serious grounds’
• What happens next?
• Key takeaways for sports organisations and arbitral bodies
  • Criteria for ‘court or tribunal’
  • Irremovability of arbitrators
  • Importance of Independence

Introduction

The Court of Justice of the European Union ("ECJ") recently issued its decision in Case C‑115/22 which dealt with a request for a preliminary ruling initiated by the Austrian Independent Arbitration Committee ("USK") to essentially answer the question: Whether the practice of the Austrian Anti-Doping Authority ("Austrian NADA") to publish its anti-doping decisions on its website is compatible with the EU’s General Data Protection Regulations ("GDPR").

While the proceeding initially received only little attention, this changed following the publication of Advocate General Ćapeta's opinion in September 2023. Her opinion was noteworthy for several reasons, particularly her statement that the GDPR should not be deemed applicable in the present case and that information about the violation of anti-doping rules does not in itself constitute "data relating to health" within the meaning of Article 9 GDPR (processing of special categories of personal data). Consequently, data protection experts were particularly keen to await the ECJ's response to some of the most pressing questions surrounding data protection and the fight against doping (see this article for summary and this article for a detailed analysis of the AG opinion).

The ECJ, however, determined that the proceedings were inadmissible, thus avoiding a ruling on the merits and on the urgent questions on data protection in sport. The reason for the ECJ’s finding of inadmissibility is based on the argument that the USK does not fulfil the requirement of an independent court or tribunal. The rationale of the decision centred exclusively on the question of which criteria must be met for a body to be considered a ‘court or tribunal’ within the meaning of Article 267 Treaty on the Functioning of the European Union ("TFEU") (jurisdiction of the ECJ to give preliminary rulings) and will be analysed in detail.