Two Advocates General, two different answers: What the conflicting NADA Austria opinions mean for anti-doping transparency

The same legal questions, the same Austrian case, but two Advocates General have now reached different conclusions about whether publishing anti-doping sanctions complies with the GDPR. For sports organisations, this divergence creates uncertainty.

Nearly two years after Advocate General (AG) Ćapeta sparked debate in NADA and Others (C-115/22)^[1] by suggesting that the publication of anti-doping decisions falls outside the scope of the GDPR, AG Spielmann has now delivered his Opinion in C-474/24. Both cases – C-115/22 and C-474/24^[2] – originate from parallel proceedings in Austria and share a comparable factual background: one before the Austrian Independent Arbitration Committee (the USK) and the other under the General Data Protection Regulation (GDPR) rules before the national data protection authorities.

After the Court of Justice of the European Union (CJEU) dismissed the USK’s request for a preliminary ruling in May 2024 on the grounds that it did not qualify as a ‘court’ within the meaning of Article 267 Treaty on the Functioning of the European Union (TFEU) (jurisdiction of the CJEU to give preliminary rulings) (C-115/22), the Austrian Federal Administrative Court (the BVwG), where the GDPR case was pending, referred largely the same questions once again, giving the CJEU a second opportunity to clarify the legal framework. The two Opinions, however, diverge sharply in their conclusions.

This article examines AG Spielmann’s Opinion before analysing the differences (and the reasons behind them) between AG Spielmann’s and AG Ćapeta’s Opinions. It looks at:

• The Factual Background of the Case
• Key Aspects of the Advocate General’s Opinion
  • Question 1: Applicability of the GDPR
    • Narrow Interpretation of Article 2(2)(a) GDPR
    • Rejection of National Competence Argument
    • Economic Character of Anti-Doping Activities
  • Question 2: Data Concerning Health
  • Question 5: Data Relating to Criminal Convictions and Offences
    • Application of Engel Criteria
    • Nature and Purpose of Sanctions
    • Severity Assessment
  • Question 6: Judicial Review of Processing Activities under Article 10 GDPR
  • Question 3 and 4: Proportionality
    • Balancing Protection and Legitimate Objectives
  • Question 7: Admissibility of Preventive Complaints under Article 77 GDPR
• An analysis of the AG Ćapeta’s earlier Opinion
  • Diverging Paths: Two Advocates General, Same Legal Questions
  • Reaffirming the GDPR’s Applicability to Anti-Doping Activities
  • Drawing the Line: When Anti-Doping Data Becomes “Health Data”
  • Disciplinary Sanctions and the Reach of Article 10 GDPR
  • A Test of Proportionality: Reassessing Publication Practices in Anti-Doping Cases
• Implications for Sports Governance
• Conclusion and Key Takeaways