MOTOEMurder on the Orient Express
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In the legal literature it has been rather commonly observed that the cases MOTOE and FIA indicate that a conflict of interest could be avoided by outsourcing some of the functions to a separate legal entity.
464, and accordingly Samuli Miettinen: 'Policing the Boundaries between Regulation and Commercial Exploitation: Lessons from the MOTOE Case', in ISLJ 2008/3-4 pp.
15; and prior to the MOTOE case, see Halgreen 2004 pp.
Commenting on this issue, the Court in MOTOE found that 'such a rule, which gives a legal person such as ELPA the power to give consent to applications for authorisation to organise motorcycling events without that power being made subject by that rule to restrictions, obligations and review, could lead the legal person entrusted with giving that consent to distort competition by favouring events which it organises or those in whose organisation it participates'.
The conclusion drawn by the Court in MOTOE was that 'a legal person whose activities consist not only in taking part in administrative decisions authorising the organisation of motorcycling events, but also in organising such events itself and in entering, in that connection, into sponsorship, advertising and insurance contracts, falls within the scope of Articles 82 EC and 86 EC.
The MOTOE judgment represents a softening of the Commission's approach adopted in Formula One.
The decision in MOTOE is a preliminary ruling delivered in response to a reference made by the Diikitiko Efetio Athinon in Greece, seeking an interpretation of Articles 82 and 86 EC in the particular context of the sport of motorcycling.
ELPA entered into negotiation with MOTOE, providing MOTOE with informAtion about a number of regulations which had to be observed in the planning of competitions and Asking for a range of details about MOTOE's planned events.
This opinion was recently confirmed in its latest ruling in case MOTOE (32).
Sports governance-This is a topic that has been discussed ever since the Commission FIA/F1 investigation but has recently gained a lot of attention in academic circles after the publication of the White Paper on Sport and MOTOE judgment (in his contribution Borja Garcia, refers to it as a 'new hot topic' and with good reason).
The MOTOE judgment provides some reasons why sports services will not often constitute services of general interest that are shielded from the full force of the Treaty's internal market rules.
In MOTOE, the Court considers only arguments to this effect, and is not confronted with the considerably less settled framework for revenue producing monopolies that do not provide services of general economic interest.