(Reference for a preliminary ruling — Citizenship of the Union — Articles 18, 21 and 165 TFEU — Rules of a sports association — Participation in the national championship of a Member State by an amateur athlete holding the nationality of another Member State — Different treatment on the basis of nationality — Restriction on free movement)
SOURCE: Court of Justice of the European Union, Annual report 2019
In the judgment in TopFit and Biffi, delivered on 13 June 2019, the Court interpreted Articles 18, 21 and 165 TFEU in the context of a dispute between an amateur athlete of Italian nationality and the German national athletics association concerning the conditions for the participation of nationals of other Member States in German amateur sports championships in the senior category.
According to the Court, those articles preclude rules of a national sports association under which a citizen of the Union, who is a national of another Member State and who has resided for a number of years in the territory of the Member State where that association, in which he or she runs in the senior category and in an amateur capacity, is established, cannot participate in the national championships in those disciplines in the same way as nationals can, or can participate in them only ‘outside classification’ or ‘without classification’, without being able to progress to the final and without being eligible to be awarded the title of national champion, unless those rules are justified by objective considerations which are proportionate to the legitimate objective pursued, this being a matter for the referring court to verify.
First, the Court found that a citizen of the Union, such as the amateur athlete in that case, who has made use of his or her right to move freely, can legitimately rely on Articles 18 and 21 TFEU in connection with his or her practice of a competitive amateur sport in the society of the host Member State. In that respect, the Court referred in particular to the role of sport as a factor for integration in the society of the host Member State, as reflected in Article 165 TFEU.
The Court then held that the rules of a national sports association which govern the access of citizens of the Union to sports competitions are subject to the rules of the Treaty, in particular Articles 18 and 21 TFEU. In that respect, the Court noted that observance of the fundamental freedoms and the prohibition of discrimination on the basis of nationality provided for by the Treaty also apply to rules which are not public in nature but which are aimed at regulating gainful employment and the provision of services in a collective manner. That principle also applies in cases 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 guaranteed under the Treaty.
Finally, the Court concluded that, in that case, there was a difference in treatment which was liable to restrict the freedom of movement of the amateur athlete in question within the meaning of Article 21 TFEU since, even if such a citizen fulfils the conditions relating to the obligatory sporting performances and has had an entitlement to participate in the sports event through a club affiliated with the national athletics association for at least one year, that citizen may not, on account of nationality, be permitted to participate in a national amateur running championship over short distances in the senior category or may be permitted to participate only in part. The Court added that the rules of a sports association can also lead to athletes who are nationals of a Member State other than the Federal Republic of Germany being less well supported by the sports clubs to which they are affiliated as compared with national athletes, since those clubs will have less interest in investing in athletes who have no prospect of participating in the national championships, which is why athletes who are nationals of other Member States would be less able to integrate themselves into the sports club to which they are affiliated and, consequently, into the society of the Member State in which they are resident.
According to the Court, such a restriction on the freedom of movement of citizens of the Union can be justified only where it is based on objective considerations and is proportionate to the legitimate objective pursued by the rules at issue, which is for the national court to determine. Indeed, it appears to be legitimate to limit the award of the title of national champion in a particular sporting discipline to a national of the relevant Member State and consider that nationality requirement to be a characteristic of the title of national champion itself. However, it is vital that the restrictions resulting from the pursuit of that objective should observe the principle of proportionality, as that objective does not systematically justify any restriction on the participation of non-nationals in the national championships.
It is for the national court to examine whether there are potential justifications by taking into account the objective, arising from a combined reading of the provisions of Article 21(1) and Article 165 TFEU, of increased openness in competitions and the importance of integrating residents, in particular long-term residents, in the host Member State. In any event, the total non-admission of a non-national athlete to a national championship on account of nationality seems to be disproportionate where there is a mechanism for the participation of such an athlete in such a championship, at the very least in the heats and/or without classification.