(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.
(Reference for a preliminary ruling – Citizenship of the European Union – Articles 18 and 21 TFEU – Extradition of a Union citizen to a third State – Person acquiring Union citizenship after transferring the centre of his or her interests to the Member State from which extradition is requested – Scope of EU law – Prohibition on extradition applied solely to own nationals – Restriction on freedom of movement – Justification based on the prevention of impunity – Proportionality – Information to the Member State of which the requested person is a national – Obligation on the Member State from which extradition is requested and the Member State of origin to ask the third State requesting extradition to send the criminal investigation file – No obligation)
SOURCE: Court of Justice of the European Union, Annual report 2020
By its judgment in Generalstaatsanwaltschaft Berlin (Extradition to Ukraine), delivered on 17 December 2020, the Court, sitting as the Grand Chamber, ruled on a case concerning the extradition of an EU citizen to a third State.
BY, a national of both Ukraine and Romania, was born in Ukraine and lived in that State until he moved to Germany in 2012. In 2014, he applied for and obtained Romanian nationality as a descendant of Romanian nationals, but never resided in Romania.
In March 2016, the German authorities received from the General Prosecutor’s Office of Ukraine a request for the extradition of BY, for the purpose of conducting a criminal prosecution. In November 2016, the Generalstaatsanwaltschaft Berlin (General Prosecutor’s Office in Berlin, Germany) informed the Romanian Ministry of Justice of the extradition request and asked whether the Romanian authorities envisaged that they would themselves conduct a criminal prosecution of BY. The Romanian Ministry of Justice replied, first, that the Romanian authorities could make a decision to conduct a criminal prosecution only if requested to do so by the Ukrainian judicial authorities and, secondly, that the issue of a national arrest warrant, as a prerequisite for the issue of a European arrest warrant, was subject to there being sufficient evidence of the guilt of person concerned. That ministry therefore asked the German authorities to provide it with the evidence that had been sent to them by the Ukrainian authorities.
German law prohibits the extradition of German nationals, but not the extradition of nationals of other Member States. Accordingly, the Kammergericht Berlin (Higher Regional Court, Berlin, Germany) considered that the extradition of BY to Ukraine was lawful, but it was uncertain whether that extradition was compatible with the principles set out by the Court in the Petruhhin judgment, given that the Romanian judicial authorities had not formally made a decision on the possible issue of a European arrest warrant. In the abovementioned judgment, the Court held, in particular, that, when a Member State to which a national of another Member State has moved has received an extradition request from a third State, it is obliged to inform the Member State of which the person whose extradition is requested is a national in order to give the authorities of the latter Member State the opportunity to issue a European arrest warrant for the surrender of that person for criminal prosecution.
The German court was uncertain as to the consequences of that judgment for the outcome of the case before it, and submitted to the Court of Justice three questions for a preliminary ruling, concerning the interpretation of Articles 18 and 21 TFEU (relating to, respectively, the principle of non-discrimination on grounds of nationality and the right of Union citizens to move and reside freely within the territory of the Member States) and of the Petruhhin judgment.
The Court examined, first, whether Articles 18 and 21 TFEU were applicable to the situation of a Union citizen such as the person concerned in the main proceedings. In that regard, the Court stated that, in accordance with its case-law, a national of one Member State, who thereby has Union citizenship and who is residing in the territory of another Member State, is entitled to rely on Article 21(1) TFEU and falls within the scope of the Treaties, within the meaning of Article 18 TFEU. The fact that BY was already residing in a Member State when he acquired the nationality of another Member State had no effect in that respect.
Secondly, the Court clarified the obligations incumbent on the Member States in the exchanging of information referred to in the Petruhhin judgment. In that regard, the Court stated that the Member State from which extradition is requested (‘the requested Member State’) must put the competent authorities of the Member State of which the person whose extradition is requested is a national in a position to request the surrender of that person by means of a European arrest warrant. In order to do so, the requested Member State must inform those authorities not only of the existence of an extradition request, but also of all the elements of fact and law communicated by the third State requesting extradition in the context of that extradition request. It must also give notice of any change in the situation of the person whose extradition is requested that might be relevant to the possibility of the issue of a European arrest warrant in respect of that person. However, neither of those Member States is obliged, under EU law, to ask the third State that is requesting extradition to send the criminal investigation file, in order to permit the Member State of which the person concerned is a national to assess the possibility that it might itself conduct a criminal prosecution of that person.
The Court stated that, provided that that obligation to inform has been respected, the authorities of the requested Member State may continue the extradition procedure and, if appropriate, carry out the extradition of the person concerned where no European arrest warrant has been issued, within a reasonable time, by the authorities of the Member State of which that person is a national. A reasonable time limit must be imposed, by the requested Member State, on those authorities, that time limit being set to take account of all the circumstances of the case, in particular whether the person concerned is in custody on the basis of the extradition procedure and the complexity of the case.
Thirdly, the Court held that Articles 18 and 21 TFEU cannot be interpreted as meaning that the requested Member State is obliged to refuse the extradition of a Union citizen who is a national of another Member State, and itself to conduct a criminal prosecution of that person for offences committed in a third State, where, as in the main proceedings, the national law of the requested Member State empowers that State to prosecute that Union citizen for certain offences committed in a third State.
In such a situation, if there were an obligation on the requested Member State to refuse extradition and itself to conduct a criminal prosecution, the consequence would be that that Member State would be deprived of the opportunity to decide itself on the appropriateness of conducting a prosecution of that citizen on the basis of national law, and that obligation would go beyond the limits that EU law may impose on the exercise of the discretion enjoyed by that Member State with respect to whether or not prosecution is appropriate in criminal matters. The question of EU law that arises, in a case such as that in the main proceedings, is solely whether the requested Member State is able to adopt a course of action, with respect to that Union citizen, which would be less prejudicial to the exercise of that citizen’s right to free movement and residence by considering that he or she should be surrendered to the Member State of which he or she is a national rather than extradited to the third State that is requesting extradition.