Academic journal article The International Sports Law Journal

Discrimination against EU Nationals in Amateur Sports

Academic journal article The International Sports Law Journal

Discrimination against EU Nationals in Amateur Sports

Article excerpt

1. In a pending dispute between three basketball clubs in Aachen and the regional basketball league Westdeutscher Basketball-Verband e.V. (WBV), which is responsible for the second regional basketball league in Nordrhein-Westfahlen, Germany, issues were raised concerning potential discrimination against EU nationals. The question is whether the federation as the regional member federation of the German national basketball federation DBB is allowed to restrict the number of non-national players in any one game to only two non-German players. On 3 November 2009 the legal committee of the WBV decided in the first instance that such a provision is contrary to Community Law, more in particular Articles 18, 45 TFEU (successors to 12 and 39 EC) and Article 7 (2) of Regulation 1612/68/EEC. In its decision the legal committee referred to the Kolpak case (1) and to the opinion of the Commission of 3 February 2006 (2) in answer to Petition 215/2002 of the German football player Rudiger Hartmann who was discriminated against at that time in the Real Federacion Espanola de Fubol (RFEF). The German WBV case is now pending in the second instance before the DBB legal committee.

2. The present author, without directly being involved in this case, out of interest asked the Commission to give their opinion about possible discrimination against EU nationals in amateur sports. The Commission's official reply dated 1 February 2010 and given by Mr. Adam Tyson, Head of Unit of the Directorate General for Education and Culture Unit 01, reads as follows:

  "Thank you for your letter of 1 December 2009 concerning
  possible discrimination against (non-German) EU
  nationals in (mainly) amateur sports.

  You will no doubt be aware that following the entry into
  force of the Lisbon Treaty, the competence of the
  European Union in the area of sport has been extended.
  To reply to your specific question, the Commission
  considers that following a combined reading of Articles
  18, 21 and 165 of the Treaty on the Functioning of the
  European Union (TFEU), the general EU principle of
  prohibition of any discrimination on grounds of
  nationality applies to sport for all EU citizens who
  have used their right to free movement. This principle
  concerns amateur sport as well as professional sport,
  which falls more specifically under the provisions
  related to internal market freedoms, such as Article 45
  TFEU on free movement of workers or Article 56 TFEU on
  freedom to provide services, in so far as the considered
  sport activities constitute an economic activity.

  Union citizenship is destined to be the fundamental
  status of nationals of the Member States, enabling those
  who find themselves in the same situation to enjoy the
  same treatment in law irrespective of their nationality,
  subject to such exceptions as are expressly provided
  for. A citizen of the European Union, lawfully resident
  in the territory of a host Member State, can rely on
  Article 21 of the Treaty in all situations which fall
  within the scope ratione materiae of EU law
  (C-184/99, Grzelczyk, paragraphs 31 to 33). Following
  the provisions of Article 165 TFUE, sport activities as
  a whole fall into the scope of EU law and amateur sport
  is therefore covered by these provisions.

  Moreover, according to Article 7(2) of Regulation
  1612/68/EEC, migrant workers have to be treated equally
  with nationals of the host country concerning access to
  employment, as well as working conditions and social
  advantages. As regards the definition of a social
  advantage under Article 7(2) of Regulation (EEC)
  1612/68, the Court has held that this covers all
  advantages: both financial benefits (C-249/83, Hoeckx,
  C-85-96, Martinez Sala), which, in a way, supplement
  the income of the migrant worker, as well as
  non-financial advantages (C-59/85, Reed, C-137/84,
  Mutsch). In particular, the ECJ has analysed whether
  the granting of an advantage to a worker and his family
  members would facilitate their integration into the
  host Member State. … 
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