Action brought on 22 December 2009 — Cañas v Commission

(Case T-508/09)

2010/C 80/46

Language of the case: French

Parties

Applicant: Guillermo Cañas (Buenos Aires, Argentina) (represented by: F. Laboulfie, lawyer)

Defendant: European Commission

Form of order sought

Pleas in law and main arguments

The applicant, a professional Argentinian tennis player, seeks the annulment of the decision of the Commission of 12 October 2009 by which the Commission rejected, on the ground of insufficient Community interest, the applicant’s complaint against the World Anti-doping Agency (WAA), ATP Tour Inc. (ATP) and the International Council of Arbitration for Sport (ICAS) concerning alleged breaches of Article 81 EC and/or Article 82 EC in connection with agreements or concerted practices and an abuse of dominant position by those sporting bodies.

In support of his action, the applicant submits that the rules of the World Anti-doping Code drafted, applied and validated by the WAA, ATP and ICAS are discriminatory because they permit different punishments, according to the category of substance found in bodily fluids, to be handed down to two athletes, who tested positive due to negligence, who committed the same infringement. To be exact, the applicant submits that those anti-doping rules penalise doping due to negligence with a substance categorised as prohibited with a minimum suspension of one year, while the minimum penalty for doping due to negligence with a substance categorised as specific (now specified) is a warning.

In the view of the applicant, the anti-doping rules in question are excessive, since the penalty system which they lay down does not permit account to be taken of the effect, in this case adverse, of a substance accidentally ingested. The anti-doping rules and their application are disproportionate in relation to the (relative) seriousness of the infringement alleged.

The WAA, ATP and ICAS, three undertakings within the Community meaning of that term, concluded agreements or adopted concerted practices unlawfully restricting competition between professional tennis players and affecting trade between the Member States. The anti-doping rules in question apply to all athletes in all sporting disciplines, at least, Olympic ones, and not solely to the applicant, for which reason their prohibition is of considerable Community interest.

In addition, the WAA, ATP and ICAS, jointly and/or severally, abused their dominant position, first by actual and potential discrimination between competing professional sportsmen and women and next because the anti-doping rules allow ATP to refuse to enter into a contract with a tennis player who tested positive due to negligence for a prohibited substance for a minimum period of one year.