as race favorites Alberto Contador Levi Leipheimer and Andreas Kl den for the whole. cycling season This decision of denying top cyclists participation in the most prestigious. cycling races made speculations circulate about a possible team switch of these riders to. compete and especially to defend their chance in the upcoming Tour de France 6. ASO s decision followed the decision of Giro organizer RCS not to invite Astana to. the season s first grand tour the 2008 Giro d Italia based on similar ethical reasons 7 The. lead taken by ASO and RCS to exclude Astana strikingly contrasts with Vuelta organizer. Unipublic to welcome Astana in the season s final grand tour the 2008 Vuelta a Espa a. Contrary to ASO and RCS Unipublic emphasized the sporting interest that Astana and its. team leader Alberto Contador who is from Spanish nationality have in participating in. the Spanish grand tour the Vuelta 8, As a result of ASO s decision to exclude its riders from the participation of the 2008. Tour de France Astana was forced to reshuffle its racing schedule for the 2008 cycling. season 9 ASO s decision also caused deep disappointment among the cycling fans 10 The. International Cycling Union UCI whose aim as the cycling governing body is to regulate. cycling at international level strongly disapproved ASO s decision threatening to expel. riders who would take part in the cycling races organized by ASO 11 and promising to back. Alberto Contador should he decide to take legal action over his exclusion from this year s. ASO races 12, In view of Astana s entire reorganization of its structure and the rigorous doping. controls developed by the team New management new riders new philosophy Only the. name of the sponsor remained ASO s rationale to exclude Astana from the participation in. its cycling events in 2008 may appear to be suspect 13 On the ground of ASO s Code of. Ethics invoked by ASO to exclude Astana it is indeed difficult to justify at the same time. the participation of teams like the Dutch Rabobank whose team leader Michael Rasmussen. holder of the yellow jersey during the 2007 Tour de France was expelled out of the Tour de. France for testing positive for doping and the French Cofidis which pulled out of the 2007. Tour de France after its rider Cristian Moreni also tested positive for doping which were. like Astana involved in doping scandals in the 2007 Tour de France. The Astana affair illustrates the conflict not to say the war which is currently. pitting the UCI and ASO for the team selection in the most important cycling events In this. conflict both the UCI and ASO use different means e g ultimatum threat of exclusions. boycott in their attempt to take the lead of the cycling world While Astana seems to be the. scapegoat of the ASO UCI war this year the Belgian Swedish team Unibet was at the. center of the battle field during the whole 2007 cycling season Barred from the participation. of all ASO cycling races in 2007 Unibet unlike Astana so far immediately took legal. action in order to challenge ASO s decision and to seek judicial authorization to compete in. the races organized by ASO, Through a description of the Unibet case this paper will address the issues which. currently affect cycling about the team selection in the most important cycling events of the. season showing the open conflict between the International Cycling Federation UCI and the. See e g rumors of Contador s team switch though denied on VeloNews website available at. http www velonews com article 73823,http www velonews com article 71733. http www velonews com article 72007,http www velonews com article 72278. http www velonews com article 72091,http www velonews com article 73065. http www velonews com article 73319,http www velonews com article 72252. organizers of the cycling events especially ASO and the consequences that this conflict has. on the organization of cycling as a sport,1 THE PARTIES INVOLVED IN THE UNIBET CASE. 1 1 THE INTERNATIONAL CYCLING UNION UCI, The UCI is the cycling governing body which is responsible for regulating cycling at. international level The UCI represents the interests of more than 170 national cycling. federations 1 200 professional riders 600 000 licensed riders millions of cycling athletes. who train regularly and more than a billion users 14 The UCI was founded on April 14 1900. by the Belgian French Italian Swiss and United States national cycling federations in Paris. France Its headquarters are located in Aigle Switzerland and it is currently chaired by. former Irish professional rider Pat McQuaid, The UCI means to develop and promote all aspects of cycling 15 In particular t he. purposes of the UCI are, a to direct develop regulate control and discipline cycling under all forms worldwide. c to organize for all cycling sport disciplines world championships of which it is the sole. holder and owner,e to promote sportsmanship and fair play. g to cooperate with the International Olympic Committee in particular as regards the. participation of cyclists in the Olympic Games Article 2 of the UCI Constitution. From Article 2 of the UCI Constitution it results that the UCI is only responsible for. the organization of the cycling world championships and in cooperation with the. International Olympic Committee for the participation of the cyclists in the Olympic. Games By virtue of its Constitution the UCI therefore has not explicitly the authority to. organize other cycling races As it appears clearly from the UCI Cycling Regulations. organization of races is the entire and exclusive responsibility of the organizers 16 However. to be recognized as an official international cycling event in which teams are authorized to. participate races must in principle be included on the UCI s world calendar 17. 1 2 AMAURY SPORT ORGANISATION ASO, ASO is a commercial company specialized in the creation promotion and. organization of sports events not only in the field of cycling but also in the fields of motor. sports the Dakar athletics the Paris marathon equestrian sports and golf ASO is part of. the French media group ditions Philippe Amaury EPA which owns among others the. leading French sports newspaper L Equipe, See http www uci ch templates UCI UCI1 layout asp MenuId MTI2NjQ. http www uci ch templates UCI UCI5 layout asp MenuId MTI2NDU. The UCI Cycling Regulations are available at, http www uciprotour com Modules BUILTIN getObject asp MenuId MTcxNw ObjTypeCode FILE type. FILE id 34033 Part 1 General Organisation of Cycling as a Sport and at. http www uciprotour com Modules BUILTIN getObject asp MenuId MTcxNw ObjTypeCode FILE type. FILE id 34028 Part 2 Road Races,Section 1 2 019 UCI Cycling Regulations. With respect to cycling ASO organizes among the season s most prestigious races. including in France the Tour de France Paris Nice and Paris Roubaix and in Belgium the. Fl che Wallonne and Li ge Bastogne Li ge 18, Most of the cycling races organized by ASO exist for several decades Until 2004. ASO s cycling races were all included on the UCI s world calendar. 1 3 UNIBET, Unibet was a Belgian Swedish cycling team which was mainly sponsored by the. online gambling company Unibet com Unibet employed 55 people and its team roster was. composed of 27 riders 19 Unibet s investment in its cycling team represented an amount of. USD 42 million over four seasons 20, Before it was granted a license to compete in the most prestigious races included on. the UCI s world calendar Unibet as a continuation of the MrBookmaker com cycling team. rode on the lower ranked European Continental Circuit After some hesitations of the UCI. Unibet obtained the UCI s ProTour license for the 2007 season allowing its riders to. participate in the races included on the UCI s world calendar Despite some good results. including wins in the first races of the 2007 season e g Jeremy Hunt in the Grand Prix. d Ouverture La Marseillaise Baden Cooke in the third stage of the Tour Down Under Jimmy. Casper in Le Samyn Unibet was denied participation in the three grand tours and the most. prestigious races organized by ASO in 2007, As a result of its exclusion from most of the biggest races in 2007 Unibet ceased. operations at the end of the 2007 season 21 Unibet was however succeeded by the Swedish. team Cycle Collstrop which is sponsored by a timber company 22 Although the UCI did not. grant to this team the 2008 Pro Tour license Cycle Collstrop was granted a one year wild. card license allowing the team to be invited to races on the UCI s world calendar. 2 THE ISSUE UNDERLYING THE UNIBET CASE THE UCI PRO TOUR. Underlying the Unibet case was the decision of the UCI to launch the UCI Pro Tour as. of the 2005 cycling season The UCI ProTour meant to be a race series of prestigious cycling. events including the three grand tours featuring the best teams and the best riders in the. world 23 Its aim was to offer a more comprehensive package of events to media giving the. sponsors more solid guarantees 24, Participation in the UCI Pro Tour required the race organizers and the teams to hold a. UCI Pro Tour license to be granted by the UCI 25 The UCI Pro Tour license obliged i all. UCI Pro Teams i e the cycling teams with a UCI Pro Tour license to compete in all the UCI. Pro Tour events 26 and consequently ii the race organizers to invite all UCI Pro Teams to. participate in all the UCI Pro Tour events they organize 27. ASO s website is available at http www aso fr index us html. See the composition of the Unibet roster at, http www uciprotour com Modules SUCI TEAMS TeamDetails asp id NTA RefDate 01 01 2007 MenuId. MTUyODM BackLink 2Ftemplates 2FUCI 2FUCI2 2Flayout 2Easp 3FMenuId 3DMTUyODM. http www velonews com article 11832,http www velonews com article 13095. http www velonews com article 73317, http www uciprotour com templates UCI UCI1 layout asp MenuId MTcxNw. http www velonews com article 7029,Section 2 15 001 of the UCI Cycling Regulations. Section 2 15 127 of the UCI Cycling Regulations,Section 2 15 261 of the UCI Cycling Regulations. As from the start ASO as well as the organizers of the other grand tours RCS and. Unipublic have expressed strong criticism against the UCI Pro Tour The organizers. reproached the UCI Pro Tour for giving the UCI too much power and for creating a closed. circuit built along the same lines as the American professional sports leagues Such closed. circuit system would exclude promotion and relegation of teams which would block any. ambitious teams from being able to win promotion to the elite league In September 2004. ASO RCS and Unipublic released a joint statement in which they opposed the UCI Pro Tour. project The consequence of this joint statement was far reaching for the UCI since the three. grand tour organizers ran other races which had been set by the UCI to become part of the. UCI Pro Tour e g besides the Tour de France ASO also organizes among others in France. Paris Nice and Paris Roubaix and in Belgium the Fl che Wallonne and Li ge Bastogne. Li ge besides the Giro d Italia RCS also organizes in Italy Milan San Remo and Tirreno. Adriatico besides the Vuelta a Espa a Unipublic also organizes in Spain the Tour of. Catalonia 28 Pressed by the UCI the organizers ultimately agreed to include their events in. the 2005 UCI Pro Tour calendar emphasizing however that numerous disagreements. remained between them and the UCI 29, ASO RCS and Unipublic reiterated their opposition to the UCI Pro Tour on several. occasions Taking note of the failure to reach an agreement with the UCI the organizers. released a new joint statement on December 12 2006 confirming again their refusal to include. their events in the closed circuit system imposed by the UCI The joint statement started as. follows All their attempts at rapprochement with the Union Cycliste Internationale UCI. having ended because of the refusal of the latter to return to an open sporting model and not. wanting their events to be part of a closed system called the UCI ProTour RCS Sport ASO. and Unipublic the organizers notably of the three Grand Tours have to define the conditions. of participation in their principal events starting in 2007 These conditions help move toward. the desired open system wanted by the three national federations France Italy and Spain. along with numerous other organizers Instead of using the UCI Pro Tour system whereby. the ProTour Teams get automatic starts the organizers proposed to implement an alternative. racing circuit under the following conditions, Starting in 2008 16 teams will qualify automatically under conditions still being worked. out but based principally on performances in the two previous years The details of these. criteria will be announced before March 1 2007 after consultation with the teams and. the riders, The current 18 Pro Tour teams will qualify automatically for the 2007 events. None of the above teams are obliged to start any of the 11 events but they will have to. notify the three organizers of their decisions by December 31 of each year. The organizer of each race reserves the right to refuse a start to any rider or to any. member of a team s staff whose presence could threaten the reputation of the event. The organizer of each event can invite wild cards For the grand tours these will be. distributed three months before the race start the number of teams participating cannot. exceed 20 starting in 2008 and 22 in the transition year of 2007 30. The aforementioned conditions were similar to those existing prior to the launch of the UCI. At the date of the release of the joint statement Unibet had not been granted the Pro. Tour license and was therefore not part of the 18 Pro Tour Teams which automatically. qualified for the 2007 events according to the aforementioned conditions The UCI. http www velonews com article 7029,http www velonews com article 7264. http www velonews com article 11316, eventually granted the Pro Tour license to Unibet a few days later on December 15 2006 31. With this Pro Tour license the UCI intended to guarantee Unibet s participation in all UCI. Pro Tour events in accordance with its UCI Cycling Regulations including in the UCI s eyes. ASO s races, 3 ASO S DECISION NOT TO INVITE UNIBET TO PARTICIPATE IN ITS RACES. The granting of the Pro Tour license to Unibet which team was mainly sponsored by. the online gambling company Unibet com appears to be questionable in light of the betting. provision of the UCI Cycling Regulations Section 1 2 030 of the UCI Cycling Regulations. provides that a nyone subject to the UCI regulations may not be involved directly or. indirectly in the organisation of bets on cycling competitions In addition if an organiser is. involved any competition organized by him may be excluded from the calendar for one year. To deny Unibet participation in its events ASO founded its decision on similar provisions of. French and Belgian laws prohibiting the advertisement of out of country betting and lotteries. 3 1 THE SITUATION IN FRANCE, From September 2006 the French authorities have started criminal investigations. against online gambling companies on the ground that their activities violated the legal. monopoly which the French government has granted to the Fran aise des Jeux and the Pari. Mutuel Urbain PMU As a result of these criminal investigations two heads of the Austrian. betting company Bwin com as well as the CEO and the former Vice President of the online. gambling company Unibet com were arrested in France 33 The French authorities also. sanctioned some organizers of sporting events sponsored by online gambling companies In. this context the organizer of the French cycling race L Etoile de Bess ges was imposed a. fine and sentenced to conditional imprisonment for having invited Unibet to participate in its. In January and February 2007 prior to its first race of the 2007 season Paris Nice. planned to start on March 18 2007 ASO got worried about the legality of the activities of the. online gambling company Unibet com main sponsor of the cycling team Unibet on the. French territory By joint letter of January 31 2007 the French Ministry of Sports and the. French Ministry of Budget invited ASO as a conservatory measure to reject Unibet s. application to its races because the participation of Unibet entailed an unlawful advertisement. of an illegal activity in France By letter of February 21 2007 the Ministry of Sports also. informed the UCI of the illegality of the participation of Unibet to the cycling races organized. by ASO The French Ministry of Sports emphasized that the advertisement of the online. gambling company Unibet com through the participation of its team to cycling races violated. the statutory provisions of the French Law of May 21 1836 prohibiting betting advertisement. in France The French Ministry of Sports also stressed that it was the organizer s entire and. exclusive responsibility not to register any cycling team representing online gambling. companies would the organizer want to avoid any criminal liability. Facing the refusal of ASO to join the UCI Pro Tour and to accept the automatic. participation of the 20 UCI Pro Teams i e teams with a UCI Pro Tour license including. http www velonews com article 11342, The UCI granted a Pro Tour License to Astana on December 19 2006. http www velonews com article 11361,http www bettingmarket com zeturfparis135780 htm. See Press release of March 7 2007 available at http 209 85 173 104 search q cache i. lWswWKZcJ cyclingmodel over blog com 30 categorie, 1170995 html Etoile de Besseges amende unibet hl fr ct clnk cd 5 gl be. Unibet to its races the UCI called for a boycott of Paris Nice and vowed to fine and sanction. any team and rider that would show up for at start of the race 35 To circumvent the UCI s. possible boycott ASO announced that it would organize the race according to French law by. soliciting the French Cycling Federation in order to establish an agreement insuring the. respect of the technical regulations 36, As ASO s decision to organize Paris Nice under the support of the French Cycling. Federation obviously undermined the UCI s authority as the governing cycling body the UCI. felt compelled to abandon its boycott threat and to reach an arrangement with ASO On. March 5 2007 all parties involved in the conflict i e the UCI the grand tour race organizers. ASO RCS Unipublic and the UCI Pro Teams concluded a convention whereby the races. organized by ASO RCS and Unipublic were placed outside of the UCI Pro Tour calendar. and were no longer subject to the rules of selection and participation of teams as described by. the UCI Cycling Regulations for the 2007 season 37 This convention therefore implied that. ASO was exempted from automatically inviting the UCI Pro Teams to its races in accordance. with Section 2 15 261 of the UCI Cycling Regulations The convention also confirmed the. right of the 18 Pro Tour Teams selected by the UCI on the date of December 12 2006 to. participate in the races organized by ASO RCS and Unipublic With respect to Unibet and. Astana which were not granted any Pro Tour license on the date of December 12 2006 the. convention however provided that ASO RCS and Unipublic will in a positive spirit. consider the granting of wild cards to Unibet and Astana to the extent such decision would. not expose or cause to expose the organizers to any liabilities of any kind whatsoever. The March 5 2007 convention angered Unibet and Astana to which the UCI by. granting the Pro Tour license had guaranteed the right to participate in all races of the UCI. Pro Tour which was supposed to include according to the UCI the races organized by ASO. From its part however ASO had never given such a guarantee to these teams On March 6. 2007 Unibet therefore filed a claim against ASO before the President of the Court of. Commerce of Nanterre France in order to seek judicial order in summary proceedings. forcing ASO to register Unibet to the race Paris Nice starting on March 11 2007 In its. claim Unibet argued that ASO had made abuse of a dominant position in application of. Article 82 of the European Community Treaty By judgment of March 9 2007 the Court of. Commerce of Nanterre declared Unibet s claim ill founded based on i the illegality of. Unibet s participation and ii the legal risk ASO would bear if it were to register the team. Unibet to a race organized on the French territory 38 Consequently ASO did not grant any. wild card to ASO for the race Paris Nice, Since the position of the French authorities remained unchanged until that time ASO. did grant neither any wild card to Unibet to participate in the race Paris Roubaix on April 15. 3 2 THE SITUATION IN BELGIUM, With respect to the races organized in Belgium Unibet had requested ASO as of. November 27 2006 to participate in the Fl che Wallonne on April 25 2007 and Li ge. Bastogne Li ge on April 29 2007,http www velonews com article 11761. See Press release of February 20 2007 available at. http www letour fr 2007 PNC LIVE us 400 communique html. See Press release of March 9 2007 available at, http www letour fr 2007 PNC LIVE us 400 communique html. In the Court of Commerce s words The Court cannot order a measure which would have as a direct. consequence the violation of the law and which would impose on ASO the risk to face unacceptable criminal. liabilities, On April 3 2007 ASO after consulting its Belgian legal counsels informed Unibet. that it would not invite the team to participate in its two races this in order to comply with the. Belgian laws prohibiting the advertisement of unauthorized online gambling activities. Belgian Gaming Commission s press release of April 12 2007 proved ASO right In this. press release the Belgian Gaming Commission confirmed that the online gambling company. Unibet com ran illegal betting activities in Belgium and made unlawful advertisement through. the sponsoring of its cycling team Unibet 39, Like in France betting activities are strictly regulated in Belgium Companies cannot. run online gambling activities in Belgium without prior authorization to be granted by the. Belgian Ministry of Sports and the Belgian Gaming Commission Law of May 7 1999 on. gambling activities Law of December 31 1851 on lotteries and Law of June 26 1963 on the. control of the enterprises organizing betting activities on sporting events Violations of these. Belgian laws trigger criminal fines and imprisonment These laws also criminally sanction. anyone who advertises unauthorized online gambling activities. On the basis of these laws criminal claims were filed against Unibet after the team. was allowed to participate in the Belgian races the Ronde van Vlaanderen on April 8 2007. and Gent Wevelgem on April 11 2007 40 On April 12 2007 answering a parliamentary. question about ASO s refusal to register Unibet to the races the Fl che Wallonne and Li ge. Bastogne Li ge the Belgian Ministry of Justice stressed on the risk of criminal liabilities. lying on the race organizer which would invite cycling teams sponsored by unauthorized. online gambling companies to participate in its races. As a result of ASO s decision Unibet turned to the UCI threatening to take legal. action against the UCI in case it would not support Unibet s interests On April 10 2007 the. UCI formally asked ASO to review its decision not to invite Unibet to participate in the races. the Fl ches Wallonne and Li ge Bastogne Li ge ASO had no other option to again confirm. to Unibet and to the UCI its decision not to grant any wild card to Unibet to participate in its. races in France and in Belgium given the illegality of the online gambling activities of its. sponsor on the French and Belgian territories, At this point it is worth noting that ASO did not deny Astana any wild card to. participate in its French races Paris Nice and Paris Roubaix and its Belgian races the Fl che. Wallonne and Li ge Bastogne Li ge At that time ASO justified the granting of these wild. cards by the sporting value of Astana and by the fact that unlike Unibet the participation of. this team in its races did not raise any legal concern which would expose ASO to a risk of. criminal liabilities,4 LEGAL PROCEEDINGS,4 1 SUMMARY PROCEEDINGS THE BASICS. The legal proceedings that Unibet introduced in Belgium against ASO in order to seek. judicial authorization to participate in ASO s Belgian races were summary proceedings In. Belgian civil procedure summary proceedings are to be distinguished from regular. proceedings For both types of legal proceedings courts have to decide the case by. considering factual and legal arguments The distinction lies in it that summary proceedings. have to decide matters of urgency To be admitted before a court in summary proceedings a. case must be urgent The plaintiff must as a preliminary issue prove that his case is a matter. of urgency In the absence of any urgency the court will dismiss the case. See the Belgian Gaming Commission s press release of April 12 2007 at http www kbwb. rlvb be Persberichten Unibetcom tabid 244 Default aspx. http www sports fr fr cmc scanner cyclisme 200715 un pv pour unibet 130256 html. Summary proceedings can take the form of a unilateral procedure introduced by the. plaintiff without the defendant being present to defend his case before the court Unilateral. summary proceedings may only be used in case of absolute necessity 41 In other cases. summary proceedings are bilateral procedures in which both the plaintiff and the defendant. defend their case before the court The party against whom a judgment is ordered on. unilateral summary proceedings has the right to appeal the decision in bilateral summary. proceedings, Another difference with the regular proceedings is that courts in summary proceedings. decide the cases on a provisional basis It is understood that because summary proceedings. pertain to matters of urgency the courts in summary proceedings only decide the cases on the. basis of the semblance of law Courts in summary proceedings are not authorized to settle. any factual or legal dispute on a definitive manner This is the task of the courts in regular. proceedings The idea behind the summary proceedings is that the plaintiff still has the. opportunity to bring his case before the courts in regular proceedings after he has preserved. his urgent interests by obtaining a judgment in summary proceedings. In practice a case in summary proceedings can be decided within the week following. its introduction before the court and in most urgent cases even immediately on the bench. whereas a case in regular proceedings take several years before being decided. 4 2 CHRONOLOGY OF THE SUMMARY PROCEEDINGS IN BELGIUM. Noting ASO s unwillingness to review its decision not to invite Unibet to participate. in its Belgian races the Fl che Wallonne on April 25 2007 and Li ge Bastogne Li ge on. April 29 2007 both Unibet and the UCI were compelled to start legal action against ASO in. order to seek judicial order to register Unibet to the aforementioned races Unibet and the. UCI used different paths in their attempt to reach this goal. 4 2 1 COURT OF COMMERCE OF LI GE UNILATERAL PROCEDURE UNIBET. On April 19 2007 Unibet introduced unilateral summary proceedings before the. Court of Commerce of Li ge requesting the court to order ASO to register its team to the. races the Fl che Wallonne and Li ge Bastogne Li ge this subject to a penalty of EUR. 5 000 000 USD 7 860 000 per infringement On a subsidiary basis should the court. consider Unibet s participation in these races as an unlawful advertisement of unauthorized. online gambling activities Unibet proposed that its riders use bikes and wear jerseys on which. the logo and the name of the online gambling company Unibet com would not appear but. would be replaced by a question mark, In its judgment of April 23 2007 the Court of Commerce of Li ge admitted that the. Unibet case constituted a matter of absolute necessity Since ASO had already denied. Unibet participation in its French races Paris Nice and Paris Roubaix ASO s refusal to. register Unibet to the Belgian races the Fl che Wallonne and Li ge Bastogne Li ge could. legitimately raise Unibet s fear of an extremely serious prejudice for this team taking into. consideration the financial and human investments made for the formation of this team the. conditions required for maintaining its Pro Tour license and the financial losses for the riders. and the sponsors if the team did not participate in these races. The Court of Commerce of Li ge further admitted that by denying Unibet. participation in its races ASO had not adopted an objective transparent fair and non. There is a case of absolute necessity justifying the introduction of unilateral summary proceedings when the. defendant cannot be identified clearly or when a serious and almost irreparable prejudice can be expected and. a bilateral procedure would make the intervention of the court useless For instance absolute necessity is. upheld when it is necessary for the plaintiff to act by surprise in order to prevent the unlawful action of the. opposing party, discriminatory position which is expected from ASO towards its commercial partners To. motivate its decision the Court of Commerce found in particular based on a prima facie. assessment of the rights of the parties that, ASO s fear to participate in the advertisement of unlawful online gambling activities was. not grounded This was clearly demonstrated by ASO s refusal to accept Unibet s. proposition to compete without any mention of the logo and the name of its sponsor on the. bikes and the jerseys of the riders, ASO had a dominant position in the organization of cycling races In this context ASO. must treat its actual and potential commercial partners on an objective transparent fair. and non discriminatory manner, Nothing proved that by accepting Unibet s participation in its races ASO s liability could. be put at risk under Belgian law, The Belgian laws prohibiting unauthorized online gambling activities in Belgium as well. as their advertisement which ASO invoked for justifying its decision violated the. principle of free movement of services under European Union law Article 49 of the. European Community Treaty 42, Consequently the Court of Commerce of Li ge ordered ASO to register Unibet to its races. the Fl che Wallonne and Li ge Bastogne Li ge and to let its riders compete with the bikes. and the jerseys on which the logo and the name of Unibet appear The Court of Commerce. attached to its order a penalty of EUR 5 000 000 USD 7 860 000 per infringement. 4 2 2 COURT OF COMMERCE OF BRUSSELS BILATERAL PROCEDURE UCI V ASO IN. THE PRESENCE OF UNIBET, Parallel to the unilateral procedure pending before the Court of Commerce of Li ge. which was unknown to the other parties the UCI as a result of Unibet s insistent request. introduced bilateral summary proceedings against ASO in order to seek judicial order forcing. ASO to register Unibet to the races the Fl che Wallonne and Li ge Bastogne Li ge Prior to. the introduction of this bilateral procedure the UCI and ASO as a preparatory matter had. exchanged their briefs of arguments Being informed of the preparation of this bilateral. procedure Unibet quickly filed its claim before the Court of Commerce of Li ge on April 19. 2007 in order to obtain the same order though in unilateral summary proceedings The. bilateral procedure was eventually filed by both the UCI and ASO before the Court of. Commerce of Brussels on April 20 2007 in ignorance of Unibet s unilateral procedure before. the Court of Commerce of Li ge, During the hearings before the Court of Commerce of Brussels on April 20 2007. Unibet decided to voluntarily intervene in the bilateral procedure On this occasion however. Unibet knowingly did not mention the existence of the unilateral procedure that it had. previously introduced before the Court of Commerce of Li ge although both procedures had. the same object Similarly Unibet had knowingly neither mention the existence of this. bilateral procedure to the Court of Commerce of Li ge At the end of these hearings the. Court of Commerce of Brussels fixed the date of its judgment at the hearings of April 24. 2007 i e before the start of the races the Fl che Wallonne and Li ge Bastogne Li ge. The day before the judgment hearings on April 23 2007 the Court of Commerce of. Li ge pronounced its judgment in favor of Unibet ordering ASO to register its team to both of. its races in Belgium Although Unibet s legal counsels had received a copy of the judgment. of the Court of Commerce of Li ge on April 23 2007 in the morning they only sent a copy. thereof to ASO s legal counsels in the late afternoon requesting moreover the continuance of. The free movement of services implies the right of individual EU citizens and companies established in the. European Union to offer and provide services in any EU country unhindered. the bilateral procedure pending before the Court of Commerce of Brussels in order to discuss. the impact of the order of the Court of Commerce of Li ge on the bilateral procedure. On April 24 2007 the Court of Commerce of Brussels however denied Unibet s. request to put the bilateral procedure in continuance blaming Unibet for having knowingly. hidden the existence of the unilateral procedure before the Court of Commerce of Li ge As. previously announced the Court of Commerce of Brussels pronounced its judgment during. these hearings, Contrary to the Court of Commerce of Li ge the Court of Commerce of Brussels. declared the UCI s claim ill founded and consequently did not order ASO to register Unibet. to its races the Fl che Wallonne and Li ge Bastogne Li ge According to the Court of. Commerce of Brussels the only issue to be considered was whether ASO performed in good. faith the convention concluded between the parties on March 5 2007 Under this convention. the races organized by ASO were no longer subject to the rules of selection and participation. of teams as described by the UCI Cycling Regulations for the 2007 season With respect to. Unibet Article 5 of the convention applied so the only duty resting on ASO was the duty to. consider in a positive spirit the granting of wild cards to Unibet This assessment had to. be made by taking into consideration that such decision would not expose or cause to expose. the organizers to any liabilities of any kind whatsoever In that regard the Court of. Commerce of Brussels considered based on a prime facie evaluation of the facts of the case. taking into account especially the above mentioned declaration of the Belgian Ministry of. Justice see above 3 2 the report of the Belgian Gaming Commission see above 3 2 and. the apparent compliance of the Belgian laws prohibiting unauthorized online gambling. activities with the EU law which seemed to be confirmed at that time by the Belgian Ministry. of Justice and the Belgian Gaming Commission that ASO s assessment of the risk to expose. its criminal liability in case of the granting of a wild card to Unibet is grounded This. prima facie evaluation of the facts of the case by the Court of Commerce of Brussels clearly. departed from the Court of Commerce of Li ge s view Consequently the Court of. Commerce of Brussels concluded that ASO had performed its duty to consider in a positive. spirit the granting of wild cards to Unibet in good faith. The Court of Commerce of Brussels eventually rejected Unibet s subsidiary argument. i e its proposal to compete with bikes and jerseys making no mention of the logo and the. name of Unibet According to the Court of Commerce of Brussels the advertisement of. unauthorized gambling activities was not limited to the mentions appearing on the bikes and. jerseys of the riders but was also present on Unibet s website. 4 2 3 COURT OF COMMERCE OF LI GE BILATERAL PROCEDURE ON APPEAL OF. UNILATERAL PROCEDURE ASO V UNIBET, On the date of April 24 2007 the Unibet case had produced two opposite judicial. decisions Faced with a judicial order to register Unibet to its races the Fl che Wallonne and. Li ge Bastogne Li ge ASO nevertheless opted not to grant any wild card to this team for the. participation in these races ASO founded its decision on the judgment of the Court of. Commerce of Brussels which ASO considered to have priority over the order of the Court of. Commerce of Li ge taking into account its posteriority and its bilateral nature being. understood that all parties were able to defend their legal arguments before the court Unibet. had therefore lost in its attempt to force ASO by means of a judicial order to register its team. to the Fl che Wallonne and Li ge Bastogne Li ge, ASO informed Unibet of its decision and expressly requested Unibet to waive the. enforcement of the order of the Court of Commerce of Li ge Instead of waiving the order of. the Court of Commerce of Li ge Unibet launched several procedures of conservatory seizure. against ASO in order to preserve its financial interests ASO therefore appealed the judgment. of the Court of Commerce of Li ge on May 21 2007 In other words the Court of Commerce. of Li ge was requested to review its previous judgment though this time in bilateral summary. proceedings, On July 6 2007 the Court of Commerce of Li ge declared Unibet s claim. inadmissible due to a lack of absolute necessity The Court of Commerce of Li ge. reproached Unibet for placing itself in a situation of urgency According to the Court of. Unibet was aware as of December 12 2006 of the risk of being denied participation in. the races of the UCI Pro Tour since its team was not granted a Pro Tour license at that. Owing to the illegality of the sponsoring of a cycling team by an online gambling. company Unibet was refused to participate in the French races by a judicial decision of. March 9 2007 which Unibet did not appeal, Invoking the similar situation in France and in Belgium with respect to the laws. prohibiting unauthorized online gambling activities and their advertisement ASO. informed Unibet in writing on April 3 2007 that it did not invite its team to participate in. its Belgian races the Fl che Wallonne and Li ge Bastogne Li ge this to comply with the. Belgian laws To avoid any misunderstanding ASO again confirmed its position to. Unibet in a more detailed letter of April 6 2007 This correspondence was so clear and. unambiguous that Unibet could not expect any review of ASO s decision. Despite ASO s clear and unambiguous position Unibet has waited until April 19 2007 to. bring its case before the Belgian courts, In the light of the foregoing the Court of Commerce of Li ge considered that Unibet placed. itself in a situation of urgency making difficult the introduction of a bilateral procedure. Given ASO s clear and unambiguous position well known to Unibet for several weeks before. the introduction of the unilateral summary proceedings and given the prior judgment of the. French Court of Commerce of Nanterre Unibet had to act more cautiously in assessing its. legal situation The Court of Commerce of Li ge therefore concluded that Unibet had to. introduce its claim in summary proceedings earlier so a bilateral procedure allowing both. parties to defend their arguments could take place The Court of Commerce of Li ge. consequently reversed its previous judgment, Many reasons may explain the change of mind expressed by the Court of Commerce. of Li ge in its judgment on appeal First of all and unlike the initial procedure introduced by. Unibet the procedure on appeal was bilateral which enabled the Court of Commerce of Li ge. to hear ASO arguments in response of Unibet s claim and to have a more comprehensive view. of the case It is likely that at the end of the initial unilateral procedure the Court of. Commerce of Li ge did not have all the factual and legal elements in its possession to make a. sound decision Therefore it is not surprising that without full knowledge of the factual. context prior to ASO s decision the Court of Commerce of Li ge rejected Unibet s claim. That the Court of Commerce rejected Unibet s claim on procedural grounds lack of. absolute necessity without even considering the merits of Unibet s claim may. nevertheless appear more suspect having in mind the judgment of the Court of Commerce of. Brussels making substantive conclusions in favor of ASO Behind the line the Court of. Commerce of Li ge s judgment on appeal could be read as sanctioning Unibet for not. processing its claim in good faith especially for not having disclosed the existence of the. other summary proceedings that were to be introduced the next day before the Court of. Commerce of Brussels When aware of Unibet s manoeuvres the judges of the Court of. Commerce of Li ge may have felt they had been fooled by Unibet More likely might. however be the view that the Court of Commerce of Li ge wished to avoid a new judicial. conflict with the Court of Commerce of Brussels Regardless of these speculative. assumptions no legal argument can be found to challenge the legality of the Court of. Commerce of Li ge s judgment on appeal The Court of Commerce motivated its judgment. in such a way that it was clear that Unibet s claim lacked any absolute necessity to be. admissible,4 3 UNIBET S EXCLUSION FROM THE GRAND TOURS. Despite these unsuccessful summary proceedings in Belgium Unibet continued to file. claims against the race organizers ASO RCS and Unipublic in order to seek judicial order. forcing the organizers to register its team to the grand tours The summary proceedings. introduced in Belgium seem however to have affected Unibet s motivation and to have. influenced the later judicial decisions in the Unibet case. 4 3 1 MILAN COURT DENYING UNIBET PARTICIPATION IN THE GIRO D ITALIA. In May 2007 Unibet filed a claim before a Milan Italy Court in order to seek judicial. order forcing RCS to register its team to the Giro d Italia After having heard the case the. Milan Court however announced that it would pronounce its judgment on May 21 2007. nine days after the race had started 43 Unibet therefore desisted from its claim. 4 3 2 LILLE COURT DENYING UNIBET PARTICIPATION IN THE TOUR DE FRANCE. On July 2 2007 Unibet filed a claim in summary proceedings before the Court of. Commerce of Lille France in order to seek judicial order acknowledging that by refusing. Unibet to participate in the Tour de France ASO had committed an abuse of dominant. position and had made discriminatory practices Unibet did not seek any judicial order. forcing ASO to register its team to the Tour de France. The Court of Commerce of Lille rejected Unibet s claim considering the lack of any. urgency Informed of ASO s refusal since May 30 2007 Unibet had not to wait until June. 29 2007 for introducing its claim in summary proceedings In addition Unibet s claim. requesting the Court to decide complex antitrust principles did not fall within its tasks Such. matter had to be decided by a court in regular proceedings. 4 3 3 BRUSSELS COURT REFUSING UNIBET THE PARTICIPATION IN THE VUELTA A ESPA A. On August 31 2007 the UCI filed a claim in summary proceedings before the Court. of Commerce of Brussels in order to seek judicial order forcing Unipublic to register Unibet. to the Vuelta a Espa a Unibet did not take part to this litigation. Again the Court of Commerce of Brussels rejected the UCI s claim Like in its. previous judgment the Court of Commerce of Brussels considered the application of Article 5. of the March 5 2007 convention Like in Belgium and in France Spanish laws prohibit the. advertisement of online gambling activities Since Unipublic invoked these Spanish laws to. justify its decision the Court of Commerce was of the opinion that there was an objective risk. that Unipublic exposes its criminal liability in case of participation of Unibet in the Vuelta. Interestingly the Court of Commerce also emphasized that the participation of the Belgian. team Predictor Lotto and the French team the Fran aise des Jeux in the Vuelta both. sponsored by agencies running gambling activities had not to be treated similarly According. to the Court of Commerce both teams were allowed to participate in the Vuelta by virtue of. Article 4 of the convention both teams being granted a Pro Tour license on the date of the. conclusion of the convention Like the Court of Commerce of Lille the Court of Commerce. of Brussels also decided that assessing the compliance of the Spanish laws with EU law did. not fall within the tasks of courts deciding on summary proceedings Finally the Court of. http www velonews com article 12230, Commerce stressed that Unipublic had lawfully motivated its decision on the basis of Section. 1 2 030 of the UCI Cycling Regulations prohibiting anyone subject to the UCI Regulations. including the organizers to be involved directly or indirectly in the organization of bets on. cycling competitions,4 4 CONCLUSION, With the exception of the initial judgment of the Court of Commerce of Li ge which. was made in unilateral summary proceedings without ASO being given the chance to defend. its arguments before the court Unibet lost all litigations against the race organizers ASO. RCS and Unipublic in order to force by judicial decision these organizers to invite its team to. participate in their cycling races Nonetheless Unibet participated in other cycling races. during the 2007 season though of minor importance and prestige Unibet s exclusion of the. most prestigious cycling races in 2007 and its continuous failure to obtain a judicial. authorization to participate in these races have irremediably affected the sponsor s motivation. to continue to invest in this team Unibet therefore decided to cease operations at the end of. the 2007 season 44,5 ISSUES UNSOLVED BY THE UNIBET CASE. 5 1 ASO S ABUSE OF A DOMINANT POSITION, Unibet s main argument to challenge ASO s decision was that ASO made abuse of a. dominant position by treating Unibet not on an objective transparent fair and non. discriminatory manner violation of Article 82 of the European Community Treaty EC. Treaty 45 Only the Court of Commerce of Li ge in its initial judgment see above 4 2 1. followed Unibet s argument The other courts either rejected or even did not consider. Unibet s argument The courts attitude can easily be explained by the fact that the Unibet. case was decided on summary proceedings Requested to decide matters of urgency courts in. summary proceedings only consider the semblance of law Deciding complex legal issues. like ASO s abuse of a dominant position does obviously fall outside the scope of the. jurisdiction of courts in summary proceedings,European Union Law of Competition. The European Union EU rules on competition comprises rules prohibiting distortion. of competition by undertakings Articles 81 to 86 EC Treaty and rules restricting State aid. granted to undertakings Articles 87 to 89 EC Treaty Unibet invoked the former set of rules. applying to undertakings especially Article 82 of the EC Treaty prohibiting the abuse of a. dominant position to challenge the legality of ASO s decision 46 Article 82 of the EC Treaty. prohibits one or more undertakings from abusing a dominant position within the common. market i e within the European Union or in a substantial part of it in so far as it may affect. trade between Member States Article 82 has direct effect in that its provision is directed at. undertakings 47, The European Court of Justice has defined the dominant position referred to in. Article 82 as a position of economic strength enjoyed by an undertaking which enables it to. http www velonews com article 13095, A consolidated version of the EC Treaty as of December 24 2002 is available at http eur. lex europa eu en treaties dat 12002E pdf 12002E EN pdf. Article 86 of the EC Treaty does not apply to ASO as this provision only applies to publicly owned. undertakings or undertakings to which a Member State has granted special or exclusive rights ASO is a private. commercial company which has not been granted any special or exclusive rights by a Member State Please note. that Article 86 is the former numbering of current Article 82 of the EC Treaty abuse of dominant position. See K LENAERTS P VAN NUFFEL CONSTITUTIONAL LAW OF THE EUROPEAN UNION 256 2005. prevent effective competition from being maintained on the relevant market by giving it the. power to behave to an appreciable extent independently of its competitors customers and. ultimately of its consumers 48 The primary feature of a dominant position is an. undertaking s ability to take actions without having to consider its competitors undertakings. in the market with respect to its market strategy and without suffering any detrimental effects. from such independent behavior 49, In assessing the existence of a dominant position a two factor test is to be considered. i the relevant market from a geographic point of view and from the point of view of the. product i e interchangeability of products in that market and ii the market power of the. undertaking 50 As a rule an undertaking has a dominant position if its product is not. interchangeable with alternative products existing in the relevant market and if it holds a large. market share in that market in relation to its competitors Determining the relevant market is. a fact based assessment for which the European Commission has considerable discretion. Decisions of the European Court of Justice are made on a case by case basis so it is difficult. to determine in advance what a relevant market may be. Article 82 of the EC Treaty does not prohibit a dominant position only its abuse is. prohibited Article 82 lists some instances of prohibited abuse of a dominant position. including limiting production markets or technical development to the prejudice of. consumers or tying the conclusion of contracts to the acceptance by parties of. supplementary obligations without necessary connection with the subject of the contracts 51. Article 82 s list of prohibited abuse of a dominant position is however non exhaustive The. European Court of Justice has construed this concept broadly as an objective concept. relating to the behavior of an undertaking in a dominant position which is such as to. influence the structure of a market where as a result of the very presence of the undertaking. in question the degree of competition is weakened and which through recourse to methods. different from those which condition normal competition in products or services based on the. basis of commercial operators has the effect of hindering the maintenance of the degree of. competition still existing on the market or the growth of that competition 52. Recent decisions of the European Court of Justice have stressed that as part of its. primary purpose to prevent distortion of competition Article 82 is intended to safeguard the. interests of consumers rather than to protect the position of particular competitors 53. An undertaking is deemed to abuse its dominant position if it refuses to deal with a. commercial partner without any objective justification 54 In a refusal to deal situation the. proportionality test is sometimes used to assess the abusive character of the dominant. undertaking s behavior 55 Under the proportionality test the dominant undertaking s refusal. to deal will be justified if such refusal is based on a legitimate objective provided refusing to. deal is necessary to achieve this legitimate objective. Legality of ASO s decision, Although the issue of ASO s potential abuse of a dominant position remained. undecided ASO challenged Unibet s argument before the courts in the summary proceedings. ASO argued that it did not have a dominant position in the meaning of Article 82 of the EC. Treaty Assuming that the relevant market would be the cycling races of international. ECJ Case 22 76 United Brands v Commission 1978 E C R 207 65. ECJ Case 85 76 Hoffman La Roche 1979 3 C M L R 283 84. ECJ Case 22 76 United Brands v Commission 1978 E C R 207 10 129. K LENAERTS P VAN NUFFEL CONSTITUTIONAL LAW OF THE EUROPEAN UNION 257 2005. ECJ Case 85 76 Hoffmann La Roche 1979 E C R 461 91. VALENTINE KORAH AN INTRODUCTORY GUIDE TO EC COMPETITION LAW AND PRACTICE 179 209 2007. I VAN BAEL J F BELLIS COMPETITION LAW OF THE EUROPEAN COMMUNITY 940 2005. MICHEL WAELBROEKC ALDO FRIGNANT EUROPEAN COMPETITION LAW 266 1999.
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