Post by account_disabled on Mar 5, 2024 2:34:51 GMT -5
In her conclusions, Tamara Ćapeta first addresses the admissibility of this request for a preliminary ruling. The Advocate General considers that the arbitration commission constitutes a “jurisdictional body” within the meaning of Article 267 TFEU. In fact, she points out that, in the circumstances of this case, that body also constitutes a court whose decisions are not subject to further judicial appeal pursuant to the third paragraph of Article 267 TFEU. Therefore, this body was even obliged to submit a request for a preliminary ruling.
Regarding the substance, Attorney General Ćapeta considers, first of all, that the aforementioned regulation is not applicable to the factual circumstances of the matter . In her Fax Lists opinion, “anti-doping regulations fundamentally regulate sport as a sport.” It refers to the social and educational functions of sport, rather than its economic aspects. There are currently no rules of Union law relating to the anti-doping policies of the Member States . As there is not even an indirect link between anti-doping policies and Union law, the regulation cannot regulate such data processing activities . For this reason, the Advocate General considers that the factual circumstances of this matter fall outside the scope of application of Union law and, therefore, the scope of application of the aforementioned rule.
Alternatively, Tamara Ćapeta considers that the Data Protection Regulation allows the processing of personal data in a predetermined context without the need for an individualized assessment of proportionality. In this way, “the decision of the Austrian legislator to require the disclosure to the general public of the personal data of professional athletes who violate the applicable anti-doping regulations is therefore not subject to an additional proportionality check in each specific case. The interference with the rights of professional athletes caused by public disclosure may be justified by the preventive objective of deterring young athletes from violating anti-doping regulations and informing relevant interested parties.
Tamara Ćapeta also explains that, in modern societies, the only way to fulfill a generalized disclosure obligation such as the one imposed by the Austrian legislator in this case is publication on the Internet . Mere printed publication can no longer be considered an adequate means of making information accessible to the general public. Requiring only the offline publication of the information in question would be equivalent to evading the obligation to inform the public. Disclosure of the athlete's name, the anti-doping rule violation in question, and the suspension imposed on her on the publicly accessible website of a national anti-doping authority during the period of her suspension is appropriate and necessary to achieve the preventive effect of deter and inform interested parties.
Regarding the substance, Attorney General Ćapeta considers, first of all, that the aforementioned regulation is not applicable to the factual circumstances of the matter . In her Fax Lists opinion, “anti-doping regulations fundamentally regulate sport as a sport.” It refers to the social and educational functions of sport, rather than its economic aspects. There are currently no rules of Union law relating to the anti-doping policies of the Member States . As there is not even an indirect link between anti-doping policies and Union law, the regulation cannot regulate such data processing activities . For this reason, the Advocate General considers that the factual circumstances of this matter fall outside the scope of application of Union law and, therefore, the scope of application of the aforementioned rule.
Alternatively, Tamara Ćapeta considers that the Data Protection Regulation allows the processing of personal data in a predetermined context without the need for an individualized assessment of proportionality. In this way, “the decision of the Austrian legislator to require the disclosure to the general public of the personal data of professional athletes who violate the applicable anti-doping regulations is therefore not subject to an additional proportionality check in each specific case. The interference with the rights of professional athletes caused by public disclosure may be justified by the preventive objective of deterring young athletes from violating anti-doping regulations and informing relevant interested parties.
Tamara Ćapeta also explains that, in modern societies, the only way to fulfill a generalized disclosure obligation such as the one imposed by the Austrian legislator in this case is publication on the Internet . Mere printed publication can no longer be considered an adequate means of making information accessible to the general public. Requiring only the offline publication of the information in question would be equivalent to evading the obligation to inform the public. Disclosure of the athlete's name, the anti-doping rule violation in question, and the suspension imposed on her on the publicly accessible website of a national anti-doping authority during the period of her suspension is appropriate and necessary to achieve the preventive effect of deter and inform interested parties.