50+1 rule – Effects of the ECJ’s case law and next steps in the proceeding

Following a review of the European Court of Justice’s recent case law, the Bundeskartellamt has no fundamental concerns about the basic 50+1 rule. The Bundeskartellamt will, however, examine the licencing practice of Deutsche Fußball Liga (DFL) more closely.

Andreas Mundt, President of the Bundeskartellamt: “The European Court of Justice's new case law does not fundamentally change our assessment of the basic 50+1 rule. Maintaining the club character of the sport remains an objective that is suitable to justify an exemption from antitrust law. In this respect we generally consider the rule to be proportionate. However, the European Court of Justice strictly stipulates that rules intended to benefit from an exemption from antitrust law must be applied in a consistent and uniform manner. We will therefore first of all examine how DFL applies the 50+1 rule. This also concerns DFL’s licencing practice with regard to certain clubs and the processes surrounding DFL’s investor deal voting last year.”

The Bundeskartellamt has informed DFL and the third parties admitted to the proceeding about its preliminary assessment of the effects of the ECJ’s recent case law (“European Superleague Company”, “ISU” and “Royal Antwerp” judgments of December 2023) on the admissibility of the 50+1 rule as well as about the further steps in the proceeding.

In the judgments the ECJ stipulated for the first time that exemptions from antitrust law can only be considered for sports association rules which are not in themselves particularly harmful to competition (referred to as restrictions of competition by object).

The Bundeskartellamt’s current view is that the basic 50+1 rule does not constitute a restriction of competition by object and is therefore in principle eligible for an exemption. The rule assigns to the clubs (“Vereine” under German law) the central position in the Bundesliga and Bundesliga 2 competitions. The rule is thus linked to the legal form of organisation which, from the lowest local level leagues to the Bundesliga, represents the institutional cornerstone of association football in Germany. In the general practice of German association football, the legal form of “Verein” enables broad sections of the population to co-determine the clubs’ affairs by becoming members. At the same time the basic 50+1 rule makes it possible to make capital investments in Bundesliga and Bundesliga 2 clubs and thus seeks to balance the idealistic and economic interests in professional football. As it restricts the acquisition of capital for the funding of sports competition by Bundesliga and Bundesliga 2 clubs, the rule has a restrictive effect on economic competition. However, in the Bundeskartellamt’s view, the rule is not in itself particularly harmful to competition within the meaning of the ECJ’s case law and also pursues the objective of maintaining the club character of the sport in a proportionate manner.

The Bundeskartellamt can only provide a final assessment of the proposals for amending the League Statutes submitted by DFL last year (see Bundeskartellamt press release of 12 July 2023) after further examination of DFL’s licencing practice. The commitments offered by DFL relate in particular to the abolition of the so-called benefactor exemption in the DFL statutes.

Where a sports association intends to benefit from an exemption from antitrust law for social and ethical reasons that are worthy of recognition, such as maintaining the club character of its sport, it must apply the relevant rule based on the rule’s objective in a uniform, consistent and non-discriminatory manner.

The Bundeskartellamt will therefore examine whether and to what extent DFL’s practice has consistently been in line with this standard in the past and will now examine DFL’s licencing practice more closely. It will also seek dialogue with DFL to identify any possible cases resulting from the licencing practice which could raise questions as to the rule’s uniform application.