C-13/76
ECLI:EU:C:1976:115
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JUDGMENT OF 14. 7. 1976 — CASE 13/76
In Case 13/76,
Reference to the Court under Article 177 of the EEC Treaty by the Giudice Conciliatore, Rovigo, for a preliminary ruling in the action pending before that court between
GAETON DONÀ
and
MARIO MANTERO
on the interpretation in particular of Articles 7, 48 and 59 of the EEC Treaty,
THE COURT
composed of: R. Lecourt, President, H. Kutscher and A. O'Keeffe, Presidents of Chambers, J. Mertens de Wilmars, P. Pescatore, M. Sørensen and F. Capotorti, Judges,
Advocate-General: A. Trabucchi
Registrar: A. Van Houtte
gives the following
JU G MEN T
Facts
The order referring the case to the Court, undertaking inquiries in football circles the procedure and the written abroad in order to discover players observations submitted under Article 20 willing to play in the Rovigo team. Mr of the Protocol on the Statute of the Dona therefore arranged for the Court of Justice of the EEC may be publication of an advertisement in a summarized as follows: Belgian sporting newspaper with this object in view but Mr Mantero refused to consider the offers submitted as a result I — Facts and procedure of the advertisement and to repay to Mr 1. Mr Mantero, former Chairman of the Dona the expenses incurred in the Rovigo Football Club and defendant in publication of the advertisement. In his the main action, had entrusted Mr Dona, action before the Giudice Conciliatore, the plaintiff in the main action, with Rovigo, Mr Dona requested that Mr
DONÀ v MANTERO
Mantero be ordered to pay the expenses Justice of the EEC, written observations in question. were submitted by the applicant in the main action and the Commission. Mr Mantero replied that Mr Dona acted prematurely. In support of this statement Upon hearing the report of the he referred to the combined provisions of Judge-Rapporteur and the views of the Articles 16 and 28 (g) of the 'Rules of the Advocate-General the Court decided to Italian Football Federation' according to open the oral procedure without holding which only players who are affiliated to any preliminary inquiry. that federation may take part in matches, membership being in principle only open to players of Italian nationality. II — Summary of the obser Only when this 'blocking of the frontiers' vations submitted under has been abandoned will it be possible to Article 20 of the Protocol consider the engagement of foreign on the Statute of the Court players. Mr Dona replied that the of Justice of the EEC provisions quoted were invalid on the ground that they were contrary to The first and second questions Articles 7, 48 and 59 of the Treaty.
2. By order of 7 February 1976, The plaintiff in the main action sets out received at the Court Registry on 13 in detail the provisions governing February 1976, the Giudice Conciliatore, football in Italy and points out in Rovigo, decided to submit the following particular that: — the Italian Football Federation, which questions to the Court: 1. Do Articles 48 and 59 and perhaps is a constituent body of the Italian Article 7 confer upon all nationals of National Olympic Committee, is any Member State of the Community made up of sporting associations concerned with football and includes the right to engage in their occupations anywhere in the bodies and persons who carry out Community either as employed general or special competitive, persons or as independent persons technical, organizational or similar providing services? activities; it is the sole body qualified 2. Do football players also enjoy the to draw up rules governing the game same right since their services are in of football in the national territory; the nature of a gainful occupation? — the organization or competitive activities is left to three sectors: the 3. If so, does such a right prevail also with regard to rules issued by a professional, the semi-professional national association which is and the amateur. The first two cover
competent to control the game of the clubs which employ professional football on the territory of one players or which normally employ Member State when such rules render semi-professional players respectively; the participation of players in matches — professional players, who cannot in dependent on their membership of principle take up any other form of the association itself, but reserve paid employment, are, like membership exclusively to players semi-professional players, entitled to who are nationals of the State to a number of financial benefits and
which the association belongs? insurance against certain risks; 4. If so, may such a right be directly — the participation of the players in invoked in the national courts and are competitions is dependent upon the latter bound to protect it? possession of the 'Federation card' which, in the professional and In accordance with Article 20 of the semi-professional sectors, is only Protocol on the Statute of the Court of given to players of Italian nationality.
JUDGMENT OF 14. 7. 1976 — CASE 13/76
Semi-professional or professional sport, national who does not satisfy that which is alone relevant in this instance, condition. constitutes a gainful activity, carried out for profit and thus economic in nature. It Neither of these possibilities applies in is therefore governed by Article 2 of the this case. Moreover, although they EEC Treaty. This applies independently generally bear the name of the town in of the fact that other persons engage in which the club to which they belong is the same sport solely for the purposes of established, Italian teams playing against
entertainment. The contrary interpret one another in the national football ation which would reduce the field of championship are made up of players application of the Treaty to industrial, who are chosen exclusively for their agricultural and commercial activities, is abilities and who are very often not negated by Article 60 which refers to the citizens of the town in question. Thus, activities of the professions among those no reason of a sporting nature prevents which are governed by the principle of the participation of nationals of other freedom to provide services. Moreover, in Member States in the football matches so far as sport constitutes an economic involved in that championship. activity, the Court has held that it is Furthermore, no other Member State governed by the Treaty and in particular imposes a restriction as severe as that in by Articles 48 to 51 or 59 to 66, which question in this instance. In addition, implement the prohibition set out in even in Italy foreign nationals may take Article 7 against any discrimination on part in matches restricted to the amateur grounds of nationality (judgment of 12 sector and there are no reasons of a December 1974, in Case 36/74, Walrave sporting nature to justify different rules v Union Cycliste Internationale [1974] for those players whose activities are ECR 1417). carried out for gain or reward.
This distinction is in fact based on economic The exceptions set out in the Treaty to grounds, since the Italian football clubs the principle of freedom of movement of are commercial organizations which persons and of provision of services must themselves act for gain or reward. be restrictively interpreted. The only exceptions to this principle provided for The Commission considers that the reply by the Treaty concern the activities of to the first two questions is to be found public authorities and are linked to the in the Walrave judgment. This concepts of public policy, public security judgment shows that sport is covered by and public health; they are thus of no Community law where it constitutes an relevance in this instance. economic activity, whether engaged in by a worker (Article 48), by a self-employed Furthermore, it cannot be maintained person established in the territory of that such forms of discrimination as that another Member State (Article 52) or by a contained in the provisions in dispute are person providing services (Article 59); in any case inherent in the nature of the conversely it falls outside these
sport. Only in certain clearly defined provisions only where the activities in cases does it appear justified to exclude question are carried out on an amateur foreign sportsmen, that is: basis, that is, without remuneration. It is — In international competitions be therefore impossible to set up against the tween athletes or teams representing nationals of other Member States each nation, in this case the players provisions which restrict, or even are defending the national flag; exclude, the presence of professional — In national competitions which are players in a club. open only to those who are born in a given district; in this case a foreigner That judgment nevertheless shows (cf. is excluded on the same ground as a point 2 of the operative part) that any
DONÀ v MANTERO
sports club is free to choose from among were to be accepted that such players its professional players those who are to carry on activities as self-employed make up the team for a specific match, persons within the meaning of Articles provided that the composition of that 52 et seq. they would be able to rely on team is determined by reference to the principle of non-discrimination in criteria based on technical sporting Article 7, as those articles implement ability alone. Nevertheless, when the that principle as regards the right of team is being selected, the question of establishment. giving preference to nationals may arise. In this respect it is appropriate to bear in As regards employed workers in mind the finding in the Walrave particular, the Walrave judgment simply judgment according to which This confirmed the solution which arises out restriction on the scope of the provisions of Article 7 (4) of Regulation No 1612/68
in question must . . . remain limited to its of the Council of 15 October 1968 (OJ, proper objective' (cf. ground of judgment English Special Edition 1968 (II), p. 477), No 9). As regards the composition of a according to which: 'Any clause of a national team, however, this judgment collective or individual agreement or of shows that in such a case the selection any other collective regulation con for a match between different countries cerning eligibility for employment, may be limited to such players as are remuneration and other conditions of
nationals. On the other hand, where it is work or dismissal shall be null and void necessary to select a team at a level other in so far as it lays down or authorizes than national level, even if such team is discriminatory conditions in respect of required to take part in a match between workers who are nationals of the other teams from different countries, it is Member States'. difficult to accept that reasons based on technical sporting ability alone may The fourth question render it objectively necessary to select national players alone to defend the club The plaintiff in the main action and colours. the Commission both maintain that the Court has already confirmed the direct The third question applicability of the provisions in question, and in particular of: The plaintiff in the main action and — Article 48, in its judgment of 4 the Commission put forward arguments December 1974 (van Duyn v Home
which are essentially identical. Taken as Office, Case 41/74 [1974] ECR 1337); a whole they maintain that the — Article 52, in its judgment of 21 June affirmative reply to be given to this 1974 (Reyners v Belgian State, Case question arises directly out of the 2/74 [1974] ECR 656); Walrave judgment, that is, from rules — Article 59, in its judgment of 3 such as those in question 'aimed at December 1974 (van Binsbergen v regulating in a collective manner gainful Bestuur van de Bedrijfsvereniging employment and the provision of voor de Metaalnijverheia, Case 33/74 services' ([1974] ECR 1418, ground of [1974] ECR 1313), and in the
judgment No 17). Moreover, the Walrave judgment. judgment found that 'the rule of non-discrimination covers in identical Conclusions terms all work or services' (ground of judgment No 7), so that it is of no Both the plaintiff in the main action importance whether the professional or and the Commission consider that an semi-professional football players are affirmative answer should be given to the covered by Articles 48 to 51 or by four questions submitted by the Giudice Articles 59 to 66 of the Treaty.
Even if it Conciliatore, Rovigo.
JUDGMENT OF 14.7. 1976 — CASE 13/76
The Plaintiff in the main action adds — It is lawful for participation in that the reply to the first two questions national teams for matches between submitted by the national court should different countries to be restricted to be formulated in such a way as to extend national players alone; the field of application of the principle — On the other hand, such a restriction of non-discrimination to amateur sport, is not lawful as regards participation although this aspect of the question is in teams which are not selected at outside the subject-matter of the main national level, even on the occasion action. With this in mind, he refers in of matches between different particular to the fifth recital in the countries. preamble to Regulation No 1612/68, according to which 'the right of freedom of movement, in order that it may be During the oral procedure, which took exercised, by objective standards, in place on 16 June 1976, the plaintiff in freedom and dignity, requires ... also the main action, represented by Wilma Viscardini of the Padua Bar, and the that obstacles to the mobility of workers shall be eliminated, in particular as Commission of the European Com regards the worker's right to be joined by munities, represented by Jean-Claude his family and the conditions for the Séché, Legal Adviser, and Eugenio de integration of that family into the host March, a member of the Legal country'. From this it follows that the Department, developed the arguments Treaty covers not only economic, but which they had put forward in the course also recreational, activities. of the written procedure.
The Commission suggests that following The Advocate-General delivered his details be added: opinion at the hearing on 6 July 1976.
Law
1 By order of 7 February 1976, received at the Court Registry on 13 February 1976, the Giudice Conciliatore, Rovigo, referred to the Court under Article 177 of the EEC Treaty various questions concerning the interpretation of Articles 7, 48 and 59 of that Treaty.
2 The first two questions ask whether Articles 7, 48 and 59 of the Treaty confer upon all nationals of the Member States of the Community the right to provide a service anywhere in the Community and, in particular, whether football players also enjoy the same right where their services are in the nature of a gainful occupation.
3 Should the answer to these two questions be in the affirmative, the third question asks the Court essentially to rule whether the abovementioned right
DONÀ v MANTERO
may also be relied on to prevent the application of contrary rules drawn up by a sporting federation which is competent to control football on the territory of a Member State.
4 In case the first three questions should be answered in the affirmative, the fourth question asks the Court whether the right in question may be directly invoked in the national courts and whether the latter are bound to protect it.
5 These questions have arisen in the context of an action between two Italian nationals over the compatibility of the abovementioned articles of the Treaty with certain provisions of the Rules of the Italian Football Federation, under which only players who are affiliated to that federation may take part in matches as professional or semi-professional players, whilst affiliation in that capacity is in principle only open to players of Italian nationality.
6 (1) Article 7 of the Treaty provides that within the scope of application of the Treaty, any discrimination on grounds of nationality shall be prohibited.
As regards employed persons and persons providing services, this rule has been implemented by Articles 48 to 51 and 59 to 66 of the Treaty respectively and by measures of the Community institutions adopted on the basis of those provisions.
7 As regards workers in particular, Article 48 provides that freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
8 Under the terms of Article 1 of Regulation No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community, (OJ English Special Edition 1968 (II), p. 476), any national of a Member State shall, irrespective of his place of residence, 'have the right to take up an activity as an employed person, and to pursue such activity, within the territory of another Member State'.
9 As regards freedom to provide services within the Community, Article 59 provides that the restrictions existing in this field shall be abolished in respect
JUDGMENT OF 14.7. 1976 — CASE 13/76
of nationals of Member States who are established in a State of the
Community other than that of the person for whom the services are intended.
10 Under the third paragraph of Article 60 the person providing a service may, in order to do so, temporarily pursue his activity in the State where the service is provided, under the same conditions as are imposed by that State on its own nationals.
11 The result of the foregoing is that any national provision which limits an activity covered by Articles 48 to 51 or 59 to 66 of the Treaty to the nationals of one Member State alone is incompatible with the Community rule.
12 (2) 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.
This applies to the activities of professional or semi-professional football players, which are in the nature of gainful employment or remunerated service.
13 Where such players are nationals of a Member State they benefit in all the other Member States from the provisions of Community law concerning freedom of movement of persons and of provision of services.
14 However, those provisions do not prevent the adoption of rules or of a practice excluding foreign players from participation in certain matches for reasons which are not of an economic nature, which relate to the particular nature and context of such matches and are thus of sporting interest only, such as, for example, matches between national teams from different countries.
15 This restriction on the scope of the provisions in question must however remain limited to its proper objective.
16 Having regard to the above, it is for the national court to determine the nature of the activity submitted to its judgment.
DONÀ v MANTERO
17 (3) As the Court has already ruled in its judgment of 12 December 1974 in Walrave v Union Cycliste Internationale (Case 36/74 [1974] ECR 1405), the prohibition on discrimination based on nationality does not only apply to the action of public authorities but extends likewise to rules of any other nature aimed at collectively regulating gainful employment and services.
18 It follows that the provisions of Articles 7, 48 and 59 of the Treaty, which are mandatory in nature, must be taken into account by the national court in judging the validity or the effects of a provision inserted in the rules of a sporting organization.
19 The answer to the questions referred to the Court must therefore be that rules or a national practice, even adopted by a sporting organization, which limit the right to take part in football matches as professional or semi-professional players solely to the nationals of the State in question, are incompatible with Article 7 and, as the case may be, with Articles 48 to 51 or 59 to 66 of the Treaty unless such rules or practice exclude foreign players from participation in certain matches for reasons which are not of an economic nature, which relate to the particular nature and context of such matches and are thus of sporting interest only.
20 (4) As the Court has already ruled in its judgments of 4 December 1974 in Case 41/74 (van Duyn v Home Office [1974] ECR 1337) and 3 December 1974 in Case 33/74 (van Binsbergen v Bestuur van de Bedrijfsvereniging voor de Metaalnijverheid [1974] ECR 1299) respectively, Article 48 on the one hand and the first paragraph of Article 59 and the third paragraph of Article 60 of the Treaty on the other — the last two provisions at least in so far as they seek to abolish any discrimination against a person providing a service by reason of his nationality or of the fact that he resides in a Member State other than that in which the service is to be provided — have a direct effect in the legal orders of the Member States and confer on individuals rights which national courts must protect.
Costs
21 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable, and as these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the Giudice Conciliatore, Rovigo, the decision as to costs is a matter for that court.
JUDGMENT OF 14.7. 1976 — CASE 13/76
On those grounds,
THE COURT
in answer to the questions referred to it by the Giudice Conciliatore, Rovigo, by order of 7 February 1976, hereby rules:
1. Rules or a national practice, even adopted by a sporting organization, which limit the right to take part in football matches as professional or semi-professional players solely to the nationals of the State in question, are incompatible with Article 7 and, as the case may be, with Articles 48 to 51 or 59 to 66 of the Treaty, unless such rules or practice exclude foreign players from participation in certain matches for reasons which are not of an economic nature, which relate to the particular nature and context of such matches and are thus of sporting interest only.
2 Article 48 on the one hand and the first paragraph of Article 59 and the third paragraph of Article 60 of the Treaty on the other — the last two provisions at least in so far as they seek to abolish any discrimination against a person providing a service by reason of his nationality or the fact that he resides in a Member State other than that in which the service is to be
provided — have a direct effect in the legal orders of the Member States and confer on individuals rights which national courts must protect.
Lecourt Kutscher O'Keeffe
Mertens de Wilmars Sørensen Mackenzie Stuart Capotorti
Delivered in open court in Luxembourg on 14 July 1976.
A. Van Houtte R. Lecourt
Registrar President