Reassessing data protection in anti-doping – key points of Advocate General Ćapeta’s opinion

On 7 May 2024, the Court of Justice of the European Union issued its decision in Case C‑115/22 relating to the inadmissibility of the request for a preliminary ruling initiated by the Austrian Independent Arbitration Committee as to whether the practice of the Austrian Anti-Doping Authority to publish its anti-doping decisions on its website is compatible with the EU’s General Data Protection Regulations.

Against the background of this decision, the author provides a helpful summary of key points made  by Advocate General Ćapeta in her opinion in relation to the compatibility of publication of anti-doping decisions with the EU’s General Data Protection in order to facilitate a better understanding of the ECJ’S decision, which will be analysed in detail here.

For sports administrators and lawyers who had hoped for some kind of guideline from the ECJ, it will therefore be necessary to wait and see how the ECJ will rule on these key issues relating to data protection in the anti-doping context.

Article Highlights

• Background of the case
• Opinion of Advocate General
  • Answering Question of the Independence of Austrian Independent Arbitration Committee
  • Sole and Final Judicial Body for Assessing GDPR Compatibility
  • AG Opinion on GDPR and Anti-Doping and Athlete Data
• What does this mean for Data Protection in Anti-Doping in the Future?

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.

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.

This article provides a helpful summary of the key points raised by the Advocate General’s opinion regarding athlete data in the context of anti-doping and disputes eventually not addressed in the case before the Court of Justice of European Union, the author explores what this may mean in the future for sport and anti-doping bodies.

For a detailed analysis of the Advocate General’s opinion, please see the author’s article on LawInSport^[1].