Editor’s
note: Thomas Terraz is a third year LL.B.
candidate at the International and European Law programme at The Hague
University of Applied Sciences with a specialisation in European Law. Currently
he is pursuing an internship at the T.M.C. Asser Institute with a focus on
International and European Sports Law.
1.
Introduction
Christmas has come very early
this year for the EU sports law world in the form of the Court of Justice of
the European Union’s (CJEU) judgment in
TopFit eV, Daniele Biffi v Deutscher Leichtathletikverband eV by exclusively analyzing the case on the
basis of European citizenship rights and its application to rules of sports
governing bodies that limit their exercise. The case concerned an Italian
national, Daniele Biffi, who has been residing in Germany for over 15 years and
participates in athletic competitions in the senior category, including the
German national championships. In 2016, the Deutscher Leichtathletikverband
(DLV), the German Athletics Federation, decided to omit a paragraph in its
rules that allowed the participation of EU nationals in national championships
on the same footing as German citizens. As a result, participation in the
national championship was subject to prior authorization of the organizers of
the event, and even if participation was granted, the athlete may only compete
outside of classification and may not participate in the final heat of the
competition. After having been required to compete out of classification for
one national championship and even dismissed from participating in another, Mr.
Biffi and TopFit, his athletics club based in Berlin, brought proceedings to a German
national court. The national court submitted a request for a preliminary ruling
to the CJEU in which it asked essentially whether the rules of the DLV, which
may preclude or at least require a non-national to compete outside
classification and the final heat, are contrary to Articles 18, 21 and 165
TFEU. Articles 18 and 21 TFEU, read together, preclude discrimination on the
basis of nationality against European citizens exercising their free movement.
The underlying (massive) question here is whether these provisions can be
relied on by an amateur athlete against a private body, the DLV.
Covered in a previous blog, the Advocate General’s (AG) opinion addressed the case from an
entirely different angle. Instead of tackling the potentially sensitive
questions attached with interpreting the scope of European citizenship rights,
the opinion focused on the application of the freedom of establishment because
the AG found that participation in the national championships was sufficiently
connected to the fact Mr. Biffi was a professional trainer who advertised his
achievements in those competitions on his website. Thus, according to the AG,
there was a sufficient economic factor to review the case under a market freedom.
The CJEU, in its decision, sidelined this approach and took the application of
European citizenship rights head on.
The following will dissect the
Court’s decision by examining the three central legal moves of the ruling: the
general applicability of EU law to amateur sport, the horizontal applicability
of European citizenship rights, and justifications and proportionality
requirements of access restrictions to national competitions.
2.
Applicability of EU Law to Amateur Sport
The CJEU has long made the
distinction that sporting activity falls under the scope of EU law “in so far
as it constitutes an economic activity.”[1] Since this ruling in the 1974, treaty
revisions, the natural development of the CJEU’s case law, and the increasing
economic interests involved in sport has meant that defining the boundaries of
EU law’s application to sport has become increasingly difficult. These
borderline cases can especially arise when an amateur athlete is barred from a
competition, since amateur athletes prima facie do not have an economic
interest. For example, the CJEU in the Deliège case explored the extent
to which amateur athletes may enjoy market freedoms. The Court ruled that
amateur athletes may come within the scope of EU law when the exercise of their
sporting activity is sufficiently connected to an economic sphere. In this case,
an amateur athlete’s sponsorship contracts and grants were considered to be
sufficient economic activity to fall within the scope of the freedom to provide
services.[2] Amateur athletes in this
case still needed to demonstrate that they had a minimum economic interest that
was being affected by a sport rule. Sporting rules lacking economic effect
would thus fall outside the scope of the market freedoms.
The TopFit ruling
changes this understanding because Mr. Biffi is an amateur athlete and instead
of invoking the market freedoms, he decided to rely on his European citizenship
rights. These rights derive from being a citizen of the Union and do not
require the exercise of an economic activity to be applicable. Indeed, Article
21 TFEU gives the free movement of persons a whole new dimension where an
economic interest is no longer a prerequisite to fall under the aegis of the
fundamental freedoms.[3] The CJEU confirmed this
reality in Baumbast when it declared that the introduction of Union
citizenship “has conferred a right, for every citizen, to move and reside
freely within the territory of the Member States” regardless of their status as
economically active or nonactive.[4] Thus, the Court in TopFit states, in reference to other
cases, that one’s exercise of their free movement under their European
citizenship, includes the “access to leisure activities” and that Article 21
(1) TFEU also intends “to promote the gradual integration of the EU citizen
concerned in the society of the host Member State.”[5] It then extends this
reasoning to sport by relying on Article 165 TFEU, the Article which explicitly
introduced sport into the Treaties, which “reflects the considerable social
importance of sport” and that the practice of an amateur sport helps “to create
bonds with the society of the State” or “to consolidate them.”[6] The Court goes even
further to unequivocally state that this is the “case with regard to
participation in sporting competitions at all levels.”[7] On this basis, it is
possible for amateur sportspersons to rely on Article 18 and 21 TFEU.[8] Therefore, the Court has
confirmed that EU law, through rights derived from European citizenship, may apply
to restrictions of free movement that arise from ‘all levels’ of amateur sport,
basically extending the reach of EU law applicability to all types of sports
activity on the territory of the EU, provided by public authorities or (as we
will see in the next section) by private ones.
3.
Horizontal Applicability of European Citizenship Rights
The next issue that
materializes from the ability of amateur sports persons to rely on European
citizenship rights is whether these rights may be invoked against private
entities, the sport governing bodies. Indeed, sports throughout the European
Union is primarily governed by a network of private associations integrated in
the famous pyramid of sports. Treaty articles may be relied upon horizontally,
meaning against other private parties, by individuals so long as the relevant
article is “sufficiently clear, precise and unconditional to be invoked by
individuals.”[9]
AG Tanchev rightly argued in his opinion that giving Article 21 TFEU horizontal
direct effect would be a “significant constitutional step” by being the “first
time this century that a provision of the Treaty has been selected to join the
small number of provisions having the quality of horizontal direct effect.”[10] In particular, the AG
explains that Article 21 TFEU has always been used in relation to disputes
arising between an individual and the State and giving horizontal direct effect
to Article 21 TFEU could damage legal certainty.[11]
Regardless, the Court in TopFit
was not dissuaded and decided to allow Mr. Biffi to rely on Articles 18 and
21 TFEU against the DLV, a private entity. It explains that the fundamental
objectives of the European Union “would be compromised if the abolition of
barriers of national origin could be neutralised by obstacles” emanating from
private entities.[12] The Court then goes on to
elaborate that this principle applies “where a group or organisation exercises
a certain power over individuals and is in a position to impose on them
conditions which adversely affect the exercise of the fundamental freedoms.”[13] Such an interpretation of
the horizontal direct effect of Article 21 TFEU is in line with the
‘relatively’ limited horizontal direct effect already described by De Mol for
Article 18 TFEU that “concerns private relations in which one party is weaker
than the other party.”[14] Thus, in order for one to
invoke Article 21 TFEU horizontally, it is necessary to scrutinize the nature
of the relationship and power (im)balance between the parties. The more
asymmetrical the relationship, the more likely Article 21 TFEU may be relied on
horizontally. On the whole, TopFit confirms that not only may Article 21
TFEU have horizontal direct effect but that perhaps this horizontal effect is
not completely unlimited, although it is questionable what the practical
consequences of this distinction actually entails.
In the sporting context,
however, the message is clear: non-economic sporting activity, such as amateur
level sports with zero economic benefits derived from it, falls under the scope
of EU law and Article 21 TFEU may be invoked by EU citizens against the private
associations which are more often than not ruling sports at a local, regional
and national level in the Member States. In short, all (economic and
non-economic) sports activity is now subjected to the control of EU law (in
particular with regard to anti-discrimination).
4.
Justifications and Proportionality of Access Restrictions to
National Competitions
After having found that Mr.
Biffi may rely on his European citizenship rights against the DLV, the Court
quite readily finds that there has been a restriction to this right. It asserts
that the DLV’s rules could result in non-German athletes receiving less
investment from their clubs since they may not participate in the national
championships in the same manner as German athletes. Consequently, “athletes of
other Member States would be less able to integrate themselves” in their club
and the wider society of the Member State, and the effects of this “are likely
to make amateur sport less attractive for EU citizens.”[15] However, a restriction on
a fundamental freedom may be justified if it pursues a legitimate objective and
meets the proportionality requirements. The Court goes on to entertain several
justifications put forward by the DLV and firmly rejects each as an illegitimate
objective. These rejected justifications include: “the argument that the public
expects that the national champion of a country will have the nationality of
that country”; that the national champion is used to represent his country in
the international championship (it was clear that this was not the case for
those competing in the senior category); and a “need to adopt the same rules
for all age categories” (since it was obvious the DLV had adopted different
rules in regards to national selection depending on the age category).[16] In the end, the Court
only accepts one justification concerning preventing the participation of
non-nationals in the final heat specifically due to the nature of eliminatory
heats in some sports. It recognizes that the participation of a non-national
may prevent a national from “winning the championship and of hindering the
designation of the best nationals.”[17]
Having found a legitimate
justification, the Court moves on to considerations of proportionality and reasons
that “non-admission of non-nationals to the final must no go beyond what is
necessary”, and it recalls the fact that the exclusion of non-nationals is only
recent.[18] In other words, the Court
essentially finds it rather strange that a sudden rule change became necessary
to prevent the participation of non-nationals in the finals and, in light of
this, finds the means to be unnecessary and generally disproportionate to the
aim sought.
Next, it also recalls that participation
of non-nationals was also subject to the authorization of the organizers and
had resulted in Mr. Biffi’s complete exclusion in one competition. The Court
explains that such an authorization scheme must “be based on objective and non-discriminatory
criteria which are known in advance” to be justified. In regard to
proportionality, it finds that “total non-admission” of a non-national athlete to
the national championship in this circumstance to be disproportionate because due
to the DLV’s own admission, there were ways for athletes to compete in the
competition, either in the preliminary heats and/or outside classification. None
of the DLV’s justifications were able to survive the proportionality
requirements.
However, this does not mean
that there could never be a legitimate justification that can meet the proportionality
requirements. Interestingly, before it examined any of the DLV’s submitted
justifications, the Court essentially gave a hint to sport governing bodies
wishing to introduce nationality restrictions to the organization of their
national competitions. It states that it is legitimate to limit the award of
the national title to a national of the relevant Member State because the
nationality requirement is an essential feature of holding the title.[19] Thus, it seems the Court would
readily accept a restriction to the ability of non-national athletes to
actually win the title.
5.
Conclusion
The CJEU took full advantage
of the case before it by demonstrating how a lack of an economic interest does
not give sport governing bodies full reign to prevent amateur athletes seeking
to further integrate themselves in their host Member State’s society through
amateur sport. It also signals the Court’s willingness to observe and take into
consideration the specific characteristics of the sport and competition
structure in question. Additionally, TopFit
has opened exciting new judicial avenues for the exercise and enforcement of
European citizenship rights against powerful private entities. In particular, sport
governing bodies should pay close attention to the TopFit ruling because
it further illustrates how they may exercise their regulatory autonomy provided
they follow the analytical framework imposed by the CJEU in its control of
discriminatory restrictions to market freedoms and European citizenship rights.