The Court of Justice of the European Union (CJEU) has held that national athletics rules in Germany cannot dictate that only German nationals may compete for the German national amateur title. Any EU citizen must, in principle, be allowed to participate in competitions and to compete for national champion (TopFit eV & Biffi v DLV).

The judgment confirms for the first time that EU law applies not only to sporting activities with economic impact, but also to amateur sports. The Court then found that EU law prevents rules that discriminate against nationals of other Member States unless they are justified by objective considerations which are proportionate to a legitimate aim. It was left to the national referring court in Germany to assess whether, in this particular case, the measures were proportionate. But it is clear that the CJEU was sceptical about the possibility of justifying an all-out ban of other EU nationals from amateur competitions. Given similar rules in many EU Member States, the Biffi judgment is likely to spark further litigation.

Background

Mr Biffi, an Italian citizen and German resident since 2003, competed for several years in the amateur German national athletics championships, in the senior category of athletes aged 35 and over.

Previously, the rules of the German Athletics Association (DLV) allowed EU citizens to participate in German amateur championships if they were entitled to participate for a German athletics association. However, this provision was removed in June 2016 by the DLV. This change meant that only German nationals could compete for the national title, while other EU nationals could only participate outside classification and with the express permission of the organisers.

The district court in Darmstadt, where the case was originally brought, was uncertain whether such a nationality requirement was legal under EU law. This led to a reference for a preliminary ruling to the CJEU.

The DLV argued that its rules are not contrary to EU law because the sporting practice in question is not an economic activity and, therefore, does not come within the scope of EU law.

The judgment

The CJEU held that the rules of a national sports association which govern access of EU citizens to sports competitions are subject to EU law, and in particular to the right to free movement of EU citizens.

The CJEU stressed that the right to free movement promotes the gradual integration of EU citizens in the society of a host Member State. Given that practising an amateur sport and participating in competitions facilitates precisely this kind of integration, considerable social importance was given by the CJEU to sport. The CJEU also confirmed its previous case law which states that the fact that a rule applies solely to sport does not mean that it is automatically excluded from the scope of the Treaty.

Against this background, the CJEU found that the rule change constituted a restriction on the freedom of movement of EU citizens. This was because the effects of the change meant potentially less support and investment for other Member State nationals from their sports clubs, rendering sport less attractive for EU citizens and thus diminishing their chance of integration in the society of their host Member State.

The DLV argued that the restriction was justified since the public expects that the national champion of a country will have the nationality of that country. The CJEU rejected this argument, noting that under the current legal framework it was in any event possible for EU citizens to compete for Germany in European championships. The CJEU also dismissed the other arguments put forward by the DLV and ruled that they did not appear to be founded on objective considerations. The CJEU left it open to the referring court to verify whether there are other justifications for the rules establishing the partial non-admission of non-nationals to the national championships.

Comment

Sport serves the general interests of the EU. These include health, education, active citizenship, social inclusion, integration, the fight against racism and the fight against violence, to name a few. For this reason, the EU has pledged on a number of occasions to safeguard the “specific” characteristics of sport “which set it apart from other economic or social activities” and to take these into account in its actions under the various Treaty provisions.

Whilst the application of EU law should not compromise the social and cultural purposes of sport, sport was previously never exempt from the application of EU law (including competition law) “in so far as it constitutes an economic activity.” Consequently, broadcasting and ticketing rules, rules on the transfer of athletes and on the licensing of sport agents were scrutinised under EU law, while “purely sporting rules” such as anti-doping rules and rules on transfer periods fell outside.

The ruling in Biffi applies EU law for the first time to the concept of “national champion” in an amateur setting. In a break with its previous case law, the Court does not justify the exceptional application of EU law by invoking the economic nature of the activity or that the rules that are not “purely sporting” in nature. According to the Court, it is the safeguarding of the “specificity of sport” as a tool for integration of non-nationals that makes the EU rules on free movement applicable. The ruling refers to sport as a way to “create bonds with society” for an individual re-locating to a different Member State. This suggests that the CJEU might be willing to accept the conditioning of participation in amateur championships on a residence requirement.

A global view: developments in other jurisdictions

The specific traits of sport and sport business have long been recognised and in many jurisdictions competition law has been applied with this in mind, including in the US and Japan. The Japanese Fair Trade Commission (JFTC) is now also seeking to expand its oversight to include sports bodies. In early June this year, the JFTC confirmed for the first time explicitly that the sports sector is subject to the Antimonopoly Act and encouraged Japanese sports organisations not to restrict athletes’ transfer agreements unreasonably. While conceding that some restrictions could be justified to recover investment costs and/or to maintain balance in teams, the JFTC stressed that these ought to be proportionate to its goals. For example, paying transfer fees could be less restrictive than banning transfers altogether.

This proportionality test is to be carried out on a case-by-case basis as the heterogeneity of the field arguably prevents a one-size-fits-all solution. It remains to be seen whether the case-by-case proportionality test allows for the much-needed legal certainty as to enable players to safely comply with the current framework.