The new German competition law under the Council Regulation (EC) No. 1/2003

Abstract: The thesis deals with competition law and sport and is insofar divided into three sections. First, the Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty comes into view. This regulation was set into force on 1 May 2004 and replaced the former regulation 17/62. The main change is not the substance of the competition law, but the procedure and the allocation of responsibility for applying it. Some of the key aspects of the new system are the decentralisation of EC competition law and simultaneous application of EU and national law by national authorities. The up to now existing basic compulsory registration and license duty for competition-limiting agreements is transferred in a system of legal exception. The result of the reforms introduced by Regulation 1/2003 is thus the abolition of the notification system and the increase of the Commission's powers with respect to the infringement procedure. The reorganization at EU level has of course considerable consequences on the national laws of competition-limiting agreements. To this background the German competition law must be assessed. Thus the possible changes in the German competition law (Gesetz gegen Wettbewerbsbeschränkungen, GWB) are explained in the second part of the thesis. After a general introduction of how the German legislator wants to adapt the change in the European system (here §§ 1, 22, 23 GWB), with coming into force of the Regulation 1/2003, the amendments in the European law require changes of special regulations for certain economic areas existing up to now in the GWB. Therefore a very special norm in the German competition law regulating the central marketing of television rights for sport events arranged by sports organizations (§ 31 GWB) comes into view and is to be questioned. This leads to the third section of the thesis: the relationship between sport and competition law. Here the judgement of the ECJ needs to be assessed, also the meaning of sport in the main European Treaties. Three cases are to be mentioned: The first judgment in this respect was Walrave and Koch from 1974, the next important case Donà ./. Mantero was decided in 1976. These two judgments created the basis for further decisions of the ECJ and the most famous following case was without doubt Bosman. The latter is explained detailed. Using the argumentation of the ECJ and also by means of the new system introduced by Regulation 1/2003, the fore mentioned area exception given in § 31 GWB of the German law is checked. Finally, the consequence of the analysis is presented: There is no reason to keep § 31 GWB, in fact to maintain this rule would violate European law. The special characteristics of sport can also be reached in a competitive system and they are not suitable to justify an exception area.