C-36/74

and

1. ASSOCIATION UNION CYCLISTE INTERNATIONALE

2. KONINKLIJKE NEDERLANDSCHE WIELREN UNIE

3. FEDERACION ESPAÑOLA CICLISMO

on the interpretation of Articles 7, 48 and 59 of the EEC Treaty and the provisions of Regulation (EEC) No 1612/68 on freedom of movement for workers within the Community (OJ L 257 of 19. 10. 1968, p. 2),

THE COURT

The order making the reference and the 1. Assuming that the agreement written observations submitted under between a pacemaker on the one hand Article 20 of the Statute of the Court of and a stayer, a cycling association Justice of the EEC may be summarized and/or a sponsor on the other hand, is as follows: to be regarded as a contract of employment, are Article 48 EEC Treaty and the provisions of EEC Regulation No 1612/68 of the Council of 15 I — Facts and procedure October 1968 on freedom of movement for workers within the Community to be It is the practice of the plaintiffs in the interpreted in such a way that the main action, both of whom are Dutch, provision in the rules for world to offer their services for remuneration championships of the Union Cycliste to act as pacemakers on motorcycles in Internationale reading 'Dès l'année 1973 medium distance cycle races with l'entraineur doit être de la nationalité du so-called stayers, who cycle in the lee of coureur' (from the year 1973 the the motorcycle. They provide these pacemaker must be of the same services under agreements with the nationality as the stayer) can be regarded stayers or the cycling associations or as incompatible with them? with organizations outside the sport 1. Does it matter in this connexion that (sponsors). These competitions include the said provision in the rules is the world championships, the rules of concerned with a sporting event in which, made by the first defendant, which countries or nationalities include a provision that 'as from 1973 compete for the world title? the pacemaker must be of the same nationality as the stayer'. The plaintiffs 2. If sub-question (1) is answered in the in the main action consider that this affirmative, does it make any provision is incompatible with the difference whether the pacemaker is Treaty of Rome in so far as it prevents a to be regarded as a participant in the pacemaker of one Member State from competition or as somebody who offering his services to a stayer of merely fulfils a supporting function another Member State and have brought on behalf of the participant (stayer)? an action against the three defendants 3. Does it also matter whether the world for a declaration that the rule is void championships in question are held and an order that the defendants allow on the territory of a Member State of teams made up of the plaintiffs and the EEC or outside such territory, stayers who are not of Dutch nationality bearing in mind that the world to take part in the world championships championships cast their shadow, as provided that such stayers are nationals it were, in that they also determine of another Member State. the choice of a pacemaker in selection The Arrondissementsrechtbank, Utrecht, competitions and other competitions has taken the view that questions of the at the national level? interpretation of Community law arise and by judgment dated 15 May 1974 has 2. Assuming that the agreement referred the following questions to this between a pacemaker on the one hand Court for a preliminary ruling: and a stayer, a cycling association

4. Does Article 59 EEC Treaty by reason of its nature have direct effect II — Observations submit­ within the legal orders of the Member States of the EEC? ted under Article 20 of the Statute of the 3. If either of the two questions above Court of Justice is answered in the negative: Is Article 7 EEC Treaty to be interpreted in such a way that the provision in the A — Observations of the Commission rules for world championships of the First question (Article 48 of the Treaty Union Cycliste Internationale reading 'Dès l'année 1973 l'entraineur doit être and Regulation No 1612/68) de la nationalité du coureur' can be 1. The Commission observes that the regarded as incompatible with it? national court has contemplated a series 1. Does it matter in this connexion that of various alternatives as to the legal the said provision in the rules is nature of the contract entered into by concerned with a sporting event in the pacemaker and the Commission which countries or nationalities states that it is for the national court to compete for the world title? settle this question. If it comes to the

WALRAVE v UNION CYCLISTE INTERNATIONALE

Conditions of work which distinguish The Commission considers that as soon between nationals and aliens do not as a clause excluding aliens is acceptable however necessarily constitute in every for constituting a national team, albeit case discrimination and in particular not professional, the nature of. the when there are 'objective differences' competition in which the national team between the respective circumstances of is competing (world, European or local the workers in question (Case 152/73 championship etc.) is of no importance Sotgiu v Deutsche Bundespost [1974] in deciding the case. ECR 153). 3. The answer to the second On considering whether such 'objective sub-question, on the other hand, is differences' may exist in relation to crucial in deciding the case. It amounts employment in sport, the Commission to asking whether the pacemaker is a makes the following observations: member of the national team in the same

could not, in any event, be regarded as Second question (Article 59 of the part of a national team. Treaty) Even in cases — such as the present — 1. The Commission notes that by where there is participation in the event reason of the 'residual' nature, according itself, the national court must watch that to the first paragraph of Article 60, of the conditions required for inferring the concept 'services', the second absence of discrimination do not bring question requires a reply only if the this concept into question. The activity of the pacemaker is not covered Commission proposes, in this respect, by a contract of employment. certain matters for consideration: the technical characteristics of the activity in In this event a specific question arises. question (qualities of the pacemaker as a As distinct from Regulation No 1612/68 sportsman), the frequency of participa the provisions relating to freedom of tion in the activities of the team, the establishment and freedom to provide scope of the organizers in applying the services provide for abolition only of rules of the events and the conditions of discrimination arising from provisions the award of prizes for winning. laid down by law, regulation or administrative action of the Member

Article 48. In this event, since the Treaty coming under Article 59, the replies applies only in the territory where proposed in relation to Article 48 to the Member States have jurisdiction, the first three sub-questions, in particular in discriminatory nature of the clause could relation to the question of the existence not be invoked for events organized in a of discrimination, would apply likewise third country. in the context of Article 59. The question, on the other hand, does not arise if the pacemaker is a member 3. Although a reply to the fourth of the national team in the same way as sub-question, on the direct effect of the cyclist.

In a

proposal for a directive of 23 December application (Case 2/72 Reyners v 1969 (OJ C 21 of 19. 2. 1970) the Belgium [1974] ECR 631). Commission proposed liberalizing a The obligation contained in Article 59 is certain number of activities including not subject, at the end of the transitional sport, but this directive has not yet been period, to any reservation, nor to any adopted by the Council. measures being taken by Member States As regards the directly applicable nature or Community institutions.

This general programme 651), states that the provisions of Article has been adopted, while Articles 59 and 59 — as well as the third paragraph of 63 leave the Council no discretion as to Article 60 — satisfy the requirements the date when these directives had to be laid down by the Court of Justice for issued. Once the limiting date has directly applicable provisions: (a) the expired, the Treaty does not subject the rule is clear and precise; (b) it is not abolition of restrictions either to the subject to any reservation; and (c) the directives to be issued or already issued implementation of the obligation which or to directives based on Article 57 of it contains is not subject to measures the Treaty relating to the coordination being taken by Member States or of the provisions laid down by law, Community Institutions. regulation or administrative action First of all, the rule is clear and precise concerning the taking up of professions because the restrictions which Article 59 or the mutual recognition of certificates. requires to be abolished are all legal provisions or administrative practices Third question (Article 7 of the

this question. The Court, moreover, has This same concept of 'restrictions' is already pronounced in favour of the moreover likewise employed in Article direct applicability of Article 7 in Case 62, the direct effect of which has never 13/63 Italian Republic v Commission been doubted by anyone, whereas the [1963] ECR 165. Court has already decided that the problems which the national court could 2. However, since this provision have in deciding whether a particular applies only 'without prejudice to any case amounted to a restriction do not special provision' of the Treaty and present an obstacle to the direct therefore has a subsidiary character, its

scope within the sphere of free comprising 108 national federations movement of persons is considerably and the Federation Internationale de limited. It could apply only in isolated Cyclisme Professionnel (FICP), cases of discrimination not arising from comprising 18 national federations. national provisions laid down by law, — the organization of world champion regulation or administrative action in ships, both amateur and professional, force but from a private person, as seems is the responsibility each year of a to be the case in the present instance. national federation and is supervised Further, it is of course necessary that the by the first defendant. clause in question should be regarded as discriminatory. — the pacemaker is important in medium-distance races: he alone determines the speed to be B — Observations of the Government maintained, taking into account the of the United Kingdom

1. Prior to considering the questions ruling: raised by the national court, the first and — a reply to the questions in the form second defendants give an outline of the in which they are raised would history, composition and objectives of involve this court in an examination the Union Cycliste Internationale, the of the particular case going beyond principal arrangements for the organiza the scope of Article 177 of the tion of world championships, the characteristics of medium-distance races Treaty. and the raison d'être of the nationality — in asking questions on the clause. interpretation of Articles 48 and 59, the national court has omitted to It appears that: consider whether in the particular — the first defendant is constituted at case there are contractual ties such as present by the Federation Internatio are referred to in the said Articles, nale Amateur de Cyclisme (FIAC) and, prior to the reference for a

relationships between individuals. Thus in the present case the unfavourable treatment of the Dutch 3. According to the first and second pacemaker prevented from contracting defendants, the disputed clause of the with a Belgian cyclist is justified by the first defendant's rules lies outside the rule basic to world championships that a scope of the EEC Treaty: national team can be made up only of — its territorial application stretches far members of the same nationality. The beyond the territory of the EEC; different treatment is not therefore obviously without basis. — since it is part not of national law but of international rules of a private 5. As regards the questions raised by nature, it is alien to the provisions of the national court, the first and second Articles 7, 48 and 59 intended to defendants consider that it is necessary harmonize or even unify the legal to reply to sub-questions (1) and the systems in the Community; main questions together, while the other — even if the applicability of sub-questions must be considered Community law and the discrimina­ separately. The clause in question relates tory nature of the provision in only to world championships, which are question were admitted, it is in any organized only once a year. In relation to the whole medium-distance season it case not established that the Community rules have priority over is thus rather the exception than the international rules; rule, which explains the importance of sub-questions (1). — this Court cannot find as possibly void an international rule applicable First question and sub-question (1) in more than a hundred countries. The first and second defendants doubt Since the first defendant's rules have been validly passed and the Community whether the relationship between the rules do not apply to them, the pacemaker and the cyclist may be nationality clause is valid and as a result regarded as coming within a contract of the contracts made having regard to this employment. The importance of the part clause are all valid. of the pacemaker in the race excludes first of all the existence of a subordinate 4. In order to define the concept of relationship. Moreover, it has not been 'discrimination' the first and second shown that the plaintiffs act as defendants make two observations pacemakers in a professional capacity regarding the definition of this concept and that it is in a professional capacity by the Court in Case 13/63 Government that they take part in the world of the Italian Republic v EEC championships (for the rules of the first Commission [1963] ECR 165 178, defendant do not classify pacemakers as according to which 'Discrimination in professionals or amateurs). A purely substance would consist in treating recreational activity, without an

economic objective, does not come and from the fact that prizes are under the application of Community law presented to the cyclist and pacemaker. (reply by the Commission to the question raised by Mr Seefeld, OJ C 12 Sub-question (3) of 3. 2. 1971, pp. 10 to 11). As regards the territorial scope of Article If the applicability of Article 48 has to 48, the first and second defendants be admitted, it is still necessary to observe that the application of examine the more specific applicability Community provisions is subject to the

Member States. Although this provision Member States. indicates that agreements made by As regards the 'indirect' effect of the individuals come under the application nationality clause on the participation in of Regulation No 1612/68, it would events other than world championships however be necessary, in order to apply properly so called, the question amounts Article 7 (4) of Regulation No 1612/68 to the contract concluded between a to examining to what extent restrictions on the constitution of a team for world pacemaker and a cyclist, federation or championships may reflect on the other sponsor, to admit that the disputed events within the Common Market, even clause of the first defendant's rules is if world championships are organized

Regulation No 1612/68. place within the territory of the Common Market and has not Sub-question (2) pronounced upon the applicability of Community law to acts outside the The distinction based on the capacity as Community but capable of producing participant in the competition or effects within the Common Market. assistant does not provide a sufficiently clear criterion to decide whether the In any event 'indirect' discrimination by nationality clause conforms with reason of the clause in dispute could not Community law or not. It is necessary be controlled according to Community rather to enquire whether the pacemaker rules unless pacemakers proved: (a) that is part of the national team in the same there was discrimination in the way as the cyclist. The affirmative reply formation of teams for events other than to this question arises both from the the world championships taking place important part that the pacemaker plays within the Common Market and (b) that

this 'indirect' discrimination inevitably Sub-question (4) arises from the nationality clause in question. Although, in contrast to the position as regards Articles 48 and 52, the direct In the opinion of the first and second effect of Article 59 has not yet been the defendants, the selection heats for the subject of a judgment by this Court, the world championships could not be first' and second defendants are of the subjected to such an examination, since opinion that the wording of Article 59 the link with the world championships is leaves no doubt that this provisions too obvious; rules warranted for the fulfils the conditions which this Court organization of world championships has laid down for direct effect, in must necessarily have precedence in particular in Case 13/68 Salgoil v selection heats wherever they take place. Ministry of External Trade of the Italian Outside the selection heats no such Republic, Recueil 1968, p. 661: the indirect discrimination could be shown. obligation is clear and at the end of the Outside world championships sportsmen transitional period it is not subject to are able to form a team with the any reservation and does not leave the partners of their choice whatever their Member States any discretion. nationality. Third question and sub-question (1) Second question and sub-question (1) The prohibition on discrimination contained in Article 7 of the Treaty The first and second defendants stress in applies only where Articles 48 and 59 do the first place the residual character of not. In contrast to Article 59, Article 7 the provisions relating to freedom to applies however where, as in the present provide services and freedom of case, the discriminatory conduct is establishment in relation to those attributable to a private party. The first governing freedom of movement for and second defendants repeat, however, workers. The former apply only where that in their opinion there can be no the latter do not. question of 'discrimination' in the Further, there is a fundamental present case. difference between Article 48 et seq. on the one hand and Article 59 et seq. on Sub-questions (2) and (3) the other. Whereas the rules relating to freedom of movement for workers Reference is made to the observations on

the pacemaker and the cyclist is a The plaintiffs replied to questions put to contract of employment. The so-called them by the Court relating to the 'exclusion of aliens' clause clearly 'sporting' nature of the team made up of constitutes discrimination based on the racing cyclist and pacemaker. The nationality. By reason of the importance, plaintiffs state that cycling competitions in this sphere of sport, of a world title, behind motorcycles are competitions this clause seriously limits their solely between racing cyclists and not professional activity. between teams made up of a cyclist and As regards sub-question (2), the a motorcyclist. Various facts confirm this plaintiffs state that the pacemaker fulfils point of view: stayer competitions are a supporting function on behalf of the organized between cycling and not participant. motorcycling federations and the official publications of the results of world The place where the world champion­ championships show that in events ships are held (sub-question (3) is irrelevant in view of their decisive behind motor cycles only the racing cyclists are classified. In the plaintiffs' influence on employment possibilities in opinion a decisive factor is that in spite the sphere of sport within the EEC. of the very clear distinction in sporting competitions between amateurs and Second question (Article 59) professionals, professional pacemakers The replies proposed for sub-questions may take part in competitions for amateur cyclists. (1) to (3) are identical with those set out above. Article 59 (sub-question (4)) must As regards the first defendant's statement be recognized as having a direct effect. that its rules do not distinguish between professional and amateur pacemakers, Third question the plaintiffs observe that it is contradictory to maintain on the one The nationality clause in question is hand that in a pacemaker/cyclist incompatible with Article 7 of the EEC association, pacemakers play as Treaty which has direct effect important a part as cyclists and on the (sub-question (4)). The fact that it relates other hand that no distrinction is made to a competition in which countries or as to whether they are amateur or nationalities compete for a world title is professional. irrelevant in the sphere of professional The Commission, developing the sport. argument it made in its written The answers proposed for sub-questions observations, states that contrary to (2) and (3) are identical with those set what the first defendant maintains, the out in relation to the first question. finding that discrimination exists need not necessarily involve the nullity of the disputed rules of the first defendant. III — Oral procedure They would only be non-applicable. Under Article 7 (4) of Regulation No 1. The oral observations of the 1612/68 the clause in the contract which plaintiffs, represented by J. L. Janssen infringes Article 48 of the Treaty would van Raay, and the Commission, be automatically null and void. represented by J. Cl. Séché, assisted by H. Bronkhorst, were made at the hearing 2. The Advocate-General delivered his on 8 October 1974. opinion on 24 October 1974.

5 "When such activity has the character of gainful employment or remunerated service it comes more particularly within the scope, according to the case, of Articles 48 to 51 or 59 to 66 of the Treaty.

6 These provisions, which give effect to the general rule of Article 7 of the Treaty, prohibit any discrimination based on nationality in the performance of the activity to which they refer.

7 In this respect the exact nature of the legal relationship under which such services are performed is of no importance since the rule of non-discrimination covers in identical terms all work or services.

JUDGMENT OF 12. 12. 1974 — CASE 36/74

8 This prohibition however does not affect the composition of sport teams, in particular national teams, the formation of which is a question of purely sporting interest and as such has nothing to do with economic activity.

9 This restriction on the scope of the provisions in question must however remain limited to its proper objective.

16 Articles 7, 48, 59 have in common the prohibition, in their respective spheres of application, of any discrimination on grounds of nationality.

17 Prohibition of such discrimination does not only apply to the action of public authorities but extends likewise to rules of any other nature aimed at regulating in a collective manner gainful employment and the provision of services.

WALRAVE v UNION CYCLISTE INTERNATIONALE

18 The abolition as between Member States of obstacles to freedom of movement for persons and to freedom to provide services, which are fundamental objec­ tives of the Community contained in Article 3 (c) of the Treaty, would be compromised if the abolition of barriers of national origin could be neutralized by obstacles resulting from the exercise of their legal autonomy by associations or organizations which do not come under public law.

19 Since, moreover, working conditions in the various Member States are governed sometimes by means of provisions laid down by law or regulation and sometimes by agreements and other acts concluded or adopted by private persons, to limit the prohibitions in question to acts of a public authority would risk creating inequality in their application.

20 Although the third paragraph of Article 60, and Articles 62 and 64, specifically relate, as regards the provision of services, to the abolition of measures by the State, this fact does not defeat the general nature of the terms of Article 59, which makes no distinction between the source of the restrictions to be abolished.

26 The national court then raises the question of the extent to which the rule on non-discrimination may be applied to legal relationships established in the context of the activities of a sporting federation of world-wide proportions.

27 The Court is also invited to say whether the legal position may depend on whether the sporting competition is held within or outside the Community.

28 By reason of the fact that it is imperative, the rule on non-discrimination applies in judging all legal relationships in so far as these relationships, by reason either of the place where they are entered into or of the place where they take effect, can be located within the territory of the Community.

29 It is for the national judge to decide whether they can be so located, having regard to the facts of each particular case, and, as regards the legal effect of these relationships, to draw the consequences of any infringement of the rule on non-discrimination.

30 Finally, the national court has raised the question whether the first paragraph of Article 59, and possibly the first paragraph of Article 7, of the Treaty have direct effects within the legal orders of the Member States.

31 As has been shown above, the objective of Article 59 is to prohibit in the sphere of the provision of services, inter alia, any discrimination on the grounds of the nationality of the person providing the services.

35 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable.

36 Since these proceedings are, in so far as the parties to the main action are concerned, a step in the action pending before the national court, costs are a matter for that court.

On those grounds,

THE COURT

in answer to the questions referred to it by the Arrondissementsrechtbank Utrecht, hereby rules:

1. Having regard to the objectives of the Community, the practice of sport is subject to Community law only in so far as it constitutes an economic activity within the meaning of Article 2 of the Treaty.

Mertens de Wilmars Pescatore Kutscher Sørensen

Delivered in open court in Luxembourg on 12 December 1974

A. Van Houtte R. Lecourt

Registrar President

OPINION OF MR ADVOCATE-GENERAL WARNER

DELIVERED ON 24 OCTOBER 1974