C-415/93

1. Belgium I -4933

2. The UEFA rules I-4936

3. The FIFA rules I-4938

4. Rules in other Member States I - 4940

IV — Rules on foreign players I - 4944

V — Facts of the main action and procedure in the national courts I - 4945

2. Article 177 and the Court's case-law on the admissibility of references for preliminary rulings I - 4953

3. Examination of the admissibility of the questions submitted by the Cour d'Appel, Liège I-4959

III — Previous decisions of the Court in the field of sport I - 4970

IV — Interpretation of Article 48 I - 4974

1. Applicability of Article 48 I - 4974

* Original language: German.

(a) The applicable rules I -4984

(b) Article 48 as prohibition of discrimination I - 4985

(c) Article 48 as a prohibition of restrictions on freedom of movement .. I - 4991

(aa) Previous case-law on Articles 48 and 52 I - 4991 (bb) Conclusions from the previous case-law I - 5001 (cc) Reasons for interpreting Article 48 as a general prohibition of restrictions on freedom of movement I - 5004 (1) Wording I-5004 (2) Systematic context I - 5004 (3) Article 48 as a fundamental right I - 5007 (dd) Possible objections to that view I - 5008 (ee) Application to the transfer rules I - 5010 (ff) Possible grounds of justification I - 5012 (1) General remarks I - 5012 (2) Maintenance of the financial and sporting equilibrium I - 5014 (3) Compensation for the costs of training I - 5021 (4) Other arguments I - 5023 (5) Recapitulation I - 5025

V — Interpretation of Articles 85 and 86 I - 5026

1. Relationship with Article 48 I - 5026

3. Interpretation of Article 86 I - 5036

C — Conclusion I - 5039

I-4931

OPINION OF MR LENZ — CASE C-415/93

A — Introduction II — The organization of football

3. The rules to be discussed here were adopted by private associations. As will be I — The problems raised demonstrated, only in a few Member States so far has the national legislature enacted provisions which are of relevance in this field. Since the rules of those associations interlock and are more or less aligned to each other, in order to understand them one must first form a concept of how football is orga- nized.

I - 4932

UNION ROYALE BELGE DES SOCIÉTÉS DE FOOTBALL ASSOCIATION AND OTHERS v BOSMAN AND OTHERS

One of them is the Union des Associations ('affectation') 5 and his entitlement to play Européennes de Football (Union of Euro- ('qualification'). Only a player who is en- pean Football Associations, 'UEFA'), whose titled to play may take part in the matches members are the football associations of organized by the association. Entitlement to Europe. In addition to the 18 associations play presupposes that the player belongs to from the Member States of the EC, a large the Belgian association and a Belgian club. A number of other associations from European transfer is defined as the process by which a countries belong to UEFA. UEFA currently player belonging to the association changes has around 50 members in all. UEFA has his club affiliation. 6 That definition as such inter alia the function of organizing the thus covers only changes of club within Bel- European Championship for national teams gium, since in the event of a move abroad or and the European Champions' Cup, Euro- to Belgium from abroad the player's affilia- pean Cup-Winners' Cup and UEFA Cup for tion to an association also changes. In the club teams. 2 UEFA too has its seat in Swit- event of a temporary transfer, the player zerland. 3 continues to belong to his previous club but is entitled to play for his new club.

7. The association's statutes distinguish III — Transfer rules between three kinds of transfer: so-called compulsory transfer ('transfert imposé'), so-called free transfer ('transfert libre') and administrative transfer ('transfert administra- tif). 7 For a 'transfert imposé' the consent of the player and his new club is required, but 1. Belgium not that of his former club. A 'transfert libre' requires agreement between the player and both clubs involved. 'Transfer administratif' is not relevant for the present case. 8

professional or non-amateur player 9 on the The player is free to reject the offer. If he other hand. The rules on transfers of ama- does so, his name is included on a transfer teurs need no further description here. It is, list, which must be transmitted to URBSFA however, important for an understanding of by 30 April at the latest. 15 For players what is stated below that an amateur may whose names have been put on that list, a change clubs by means of a compulsory compulsory transfer is permissible between transfer, with the new club having to pay a 1 May and 31 May. That means that a trans- transfer fee of up to BFR 1 000 000. 10 fer can take place even without the consent of the old club if the new club pays the old club the transfer fee provided for. The amount of that transfer fee, which is described by the 1982 URBSFA statutes as compensation for training the player ('indemnité de formation'), is calculated by taking the player's gross annual income and multiplying it by a factor from 14 to 2 (for professionals) or from 16 to 4 (for non- amateurs) depending on the player's age. 16 In the case of a professional player aged 25 or 26, for instance, the transfer fee is ten times his gross income. 9. The rules on transfers of professional and non-amateur players may be described as follows. The clubs conclude contracts with those players, in which provision is made in particular for remuneration and minimum bonuses. The terms of those contracts are negotiated, but the association's statutes pre- scribe certain minimum amounts, for exam- ple a fixed monthly amount of at least BFR 30 000 for a professional player. 1 1All the contracts, which may run for a period from one year to a maximum of five years, 12 must The 'free' transfer period follows, from 1 to terminate on a 30 June. 13 Before expiry of 25 June. 17 The transfer fee is negotiated the contract — in fact at the latest by freely. A change of clubs is only possible, 26 April of the year in question — the club however, if the former club and the new club must offer the player a new contract. Other- have reached agreement on the amount of wise the player in question is regarded as an that transfer fee. 18 If the fee is not paid, amateur from 1 May on for the purposes of sanctions may be imposed on the club by the the transfer rules. 14 association. 19

If no transfer takes place, the club to which In the provision referred to, the transfer fee the player belongs must offer him a new is defined as a payment intended as compen- contract for one season on the same terms as sation for the training and development of were offered in April. If the player rejects the player, his skill, and the cost of replacing that offer, the club can until 1 August take him ('une indemnité compensant la forma- measures to suspend him. If it does not do tion, la promotion, le savoir-faire et le rem- so, the player is automatically reclassed as an placement'). amateur. 20 If a suspension has been imposed and still no new contract is concluded or transfer effected, then after two seasons dur- ing which he is not allowed to play, the player can have himself transferred as an amateur. 21 As under the previous rules, the transfer fee is calculated, in the event of a compulsory transfer, by multiplying the player's gross income by a specified factor depending on 10. Since 1 January 1993 URBSFA has the player's age. 23 The figures have been applied a new transfer system. Since that new changed slightly, however. Thus for a profes- system is, however, very similar to the rules sional aged from 25 to 27 in the first divi- which have just been described, I shall only sion, the transfer fee is now eight times his point out a few differences here. In the new gross income. system the player's freedom of contract is emphasised, but at the same time it is stated that the new club is to pay a transfer fee to the previous club:

2. The UEFA rules able, that being intended to compensate the progress which the club has enabled the player to make. 28 In the event of differences of opinion between the clubs, a board of experts set up by UEFA makes a binding determination of the amount of that transfer fee. 29 That is done by taking the player's 12. The UEFA rules on transfers applicable gross income in the preceding season, includ- at the material time for the national proceed- ing bonuses and royalties, and multiplying it ings in the Liège Cour d'Appel are contained by a specified factor between 12 and 1, in a document entitled 'Principles of Coop- depending on the player's age. For a player eration between Member Associations of aged 25 or 26, for example, the transfer UEFA and their Clubs' (hereinafter 'the fee payable is eight times that sum. The 1990 UEFA transfer rules'), which was transfer fee may not, however, exceed adopted by the UEFA Executive Committee 5 000 000 Swiss francs. 30 on 24 May 1990 and was to come into effect, in accordance with its final provision, on 1 July 1990.

15. The following provision can be found in Article 16 of those rules:

13. According to those rules, on expiry of his contract the player is free to conclude a new contract with the club of his choice. 26 The new club must immediately notify the former club of the conclusion of the con- 'The business relationships between the two tract. The former club must immediately clubs in respect of the compensation fee for inform its national association. The associa- training and development shall exert no tion must then immediately issue the inter- influence on the sporting and professional national clearance certificate. 27 activity of the player. The player shall be free to play for the club with which he has signed the new contract.'

systems for top-class football should be 19. Those rules were replaced by the 'UEFA adapted as soon as possible to the system as Rules on the determination of compensation defined in that document. for transfers' (hereinafter 'the 1993 UEFA transfer rules'), adopted by UEFA on 16 July 1993, to come into force on 1 August 1993. Those rules are based on Article 16(2) of the FIFA regulations — to be discussed below — on the status and transfer of footballers, and provide that 'international changes of club by footballers' are to be governed by 17. The principles defined in the 1990 UEFA those FIFA regulations. The provisions of transfer rules for all members of UEFA are the 1993 UEFA transfer rules govern 'exclus- already largely to be found, as far as the ter- ively the procedure and type of calculation' ritory of the Community is concerned, in a with respect to 'compensation for training document adopted by the UEFA Executive and/or development in accordance with Committee on 2 May 1988, entitled 'Princi- Article 14 of the FIFA regulations', but only pes de collaboration entre les clubs de différ- in the event of the clubs being unable to entes Associations nationales des Etats- agree on the amount of that transfer fee. 32 membres de la C E E ' (Principles of cooperation between clubs of different national associations of the Member States of the EEC).

20. The FIFA transfer rules which applied in 1990 can be found in regulations which were 22. FIFA too has amended its transfer rules adopted on 14 and 15 November 1953 and since then. The new regulations were last amended on 29 May 1986 (hereinafter adopted by FIFA in April 1991 and amended 'the 1986 FIFA Regulations'). in December 1991 and December 1993. Only the new version which came into force on 1 January 1994 (hereinafter 'the 1994 FIFA Regulations') will be considered here.

21. Those regulations provide that each national association is to determine the status and qualification of its players, and that those decisions are to be recognized by the other associations and by FIFA itself. 36 23. The 1994 FIFA Regulations regulate the status and eligibility of footballers who 'effect a transfer from one national associa- tion to another'. 39 Such players can be reg- istered with a club affiliated to another asso- ciation only if that association has received 'an international transfer certificate issued by Under Article 14(1) of those rules a profes- the national association which the player sional player may not leave his national asso- wishes to leave'. 40 Only the new association ciation while he is bound by his contract and

37 — Article 12(5) of the 1986 FIFA Regulations: 'The issuing of this certificate shall imply on the part of the previous Asso- 34 — The factor 0 applies to players who are aged 39 or over. ciation that all commitments of a financial nature, including Such players can therefore transfer without a transfer fee the transfer fee where applicable, have been settled'. becoming due. 35 — See Article 8(2) of the 1993 UEFA transfer rules, on the cal- 38 — Article 12(1), third sentence, of the 1986 FIFA Regulations. culation of the relevant gross income. 39 — Paragraph 1 of the preamble to the 1994 FIFA Regulations. 36 — Article 1 of the 1986 FIFA Regulations. 40 — Article 7(1) of the 1994 FIFA Regulations.

'... an international transfer certificate may 24. Under Article 14(1) of the 1994 FIFA not be refused for this reason. The player Regulations, in the event of the transfer of a shall therefore be free to play for the new non-amateur player, his former club is en- club with which he has signed a contract as titled to 'compensation for his training soon as the international transfer certificate and/or development'. If an amateur player has been received'. concludes a contract with a new club, as a result of which he loses his amateur status, his former club is entitled to 'compensation for his development'. 44 If the two clubs cannot reach agreement on the amount of compensation, the dispute is to be submitted to FIFA for a decision. 45 However, the rules allow the confederations within FIFA 46 to 26. According to paragraph 2 of the pream- ble to the 1994 FIFA Regulations, 'the rules laid down under Chapters I, II, III, VII, VIII and X ' are also binding at national 41 — Article 8(1) of the 1994 FIFA Regulations. level. Chapter V, which is entitled 'Players 42 — Article 7(2) of the 1994 FIFA Regulations. 43 — Article 7(2), (3) and (4) of the 1994 FIFA Regulations. 44 — Article 14(2) of the 1994 FIFA Regulations. 45 — Article 16(1) of the 1994 FIFA Regulations. 46 — These are the associations within FIFA mentioned above 47 — Article 16(2) to (4) of the 1994 FIFA Regulations. (see point 5). 48 — See point 19 above.

I - 4939

OPINION OF MR LENZ — CASE C-415/93

27. To complete the picture, it is useful to look at the transfer rules of the other Mem- ber States of the Community. In response to a written request by the Court of Justice, UEFA has produced the regulations it states Under Paragraph 32(5) of the regulations, to be currently in force in the various Mem- 'the corresponding FIFA or UEFA regula- ber States and has also helpfully provided a tions' apply to transfers abroad or from summary of them. A discussion of all those abroad. regulations is neither possible nor sensible in the present context. I shall therefore restrict myself to some Member States and concen- trate on the points which appear to me to be noteworthy. It should be noted that the fol- lowing account is based exclusively on the texts produced by UEFA, which are for the 29. In Germany the rules on transfers are most part in the language of the country in mainly contained in the 'Lizenzspielerstatut' question. It may therefore be the case that (Statute of professional players) of the the occasional minor inaccuracy has crept in. Deutscher Fußballbund (German Football

I - 4940

UNION ROYALE BELGE DES SOCIÉTÉS DE FOOTBALL ASSOCIATION AND OTHERS v BOSMAN AND OTHERS

At the hearing before the Court, however, the representative of Denmark stated that a law abolishing transfer fees is being drafted.

In the case of a transfer abroad, the player's former club is entitled to 'compensation for training and development'. 50 For transfers to other associations within the Community, the 'UEFA rules on the payment of compen- sation for training and development apply' in 31. In Spain Real Decreto (Royal Decree) the version in force at the time. 51 N o 1006/1985 of 26 June 1985 prescribes

49 — See Paragraph 32(1) of the Lizenzspielerstatut. 52 — See clauses 2 and 7 of Section 3 of the model contract. 50 — See Paragraph 9(1) of the Spielordnung. 53 — Clause 4 of Section 3 of the model contract. 51 — See Paragraph 28(3) of the Lizenzspielerstatut. 54 — Clause 7 of Section 3 of the model contract.

I - 4941

O P I N I O N O F MR L E N Z — CASE C-415/93

that, in the event of a transfer, a transfer fee Article 15(1) and (2) of that chapter provides: ('una compensación por preparación o for- mación') in accordance with a collective wage agreement may be demanded. 55 UEFA has produced to the Court such a collective agreement, Article 4 of which states that it is to be in force from 1 June 1992 to 30 May 1995. According to Article 18 of the agree- '1. Any move by a player from the club with ment, in the event of a transfer a transfer fee which he has signed his first professional is due if the player in question and the price contract to another club shall entitle the determined have been included in a transfer former club (the club which has trained him) list. Professionals aged 25 or over cannot be to receive compensation for training. included in that list. Those players can there- fore transfer in Spain 56 without a transfer fee being payable.

UNION ROYALE BELGE DES SOCIÉTÉS DE FOOTBALL ASSOCIATION AND OTHERS v BOSMAN AND OTHERS

corresponds in principle to the player's gross ever, according to UEFA, it is usually the income in the preceding two years. If the new club which pays the money. training has lasted for more than three sea- sons, the full basic compensation is payable; if it lasted for only one season, the transfer fee is only 10% of that amount. 58

A transfer fee is thus due only for the first transfer, and then only when the above con- 35. In Italy Law N o 91 of 23 March ditions are fulfilled. Apart from such cases, 1981 applies to football (and sport in gener- no transfer fee is thus payable within France al). Under Article 6 of that law, a transfer fee in the event of a transfer. ('indemnità di preparazione e di promozi- one') may be demanded in the event of a transfer; the recipient must invest it for sporting purposes. Details of the calculation are governed by the rules of the Italian Foot- ball Association, adopted in implementation of that law. 33. In the event of a transfer abroad, in accordance with Article 18 of that chapter the transfer fee due under Article 15 is doubled.

34. In Greece, according to UEFA's infor- mation, on expiry of a football player's 36. Finally, the Netherlands should be men- former contract, he is free to join a new club tioned. Article 49(1 )(a) of the Netherlands without a transfer fee becoming due, in Football Association's regulations, produced accordance with Article 29(1) of Law N o to the Court by UEFA, states that in the 1958 of 5 August 1991. Article 29(3) of that event of a transfer of a player abroad, the law, however, permits the insertion in the association will issue the transfer certificate contract between the club and the player of a provided for 'in Article 12 of the FIFA Reg- term stating that he can leave the club only if ulations' only after the transfer fee has been he has paid it a specified sum. That sum must paid to the player's former club. 59 be stated in the contract. In practice, how-

40. Since that UEFA rule is merely a mini- mum, it is open to the individual associations 38. After the Court's judgment of 14 July to allow more foreign players. The English 1976 in Donà v Mantero 61 negotiations took association, for instance, does not count place between the European football associ- players from Wales, Scotland, Northern Ire- ations and the Commission of the European land and Ireland as foreigners. There is no Community. In 1978 UEFA undertook to restriction of the number of foreign players the Commission to abolish the restrictions in Scotland. on the number of foreign players which a club can have under contract, in so far as they are nationals of Member States. Sec- ondly, UEFA agreed to fix at two the num- ber of such players who were allowed to take part in a match, with that restriction not applying to players who have been resident for five years in the territory of the relevant association. 41. The '3 + 2' rule also applies to club matches organized by UEFA itself. 63

60 — See for example Paragraph 22(2)(b) of the Spielordnung of the German Football Federation (DFB), which came into force on 30 August 1994, under which a player w h o 'does not possess German nationality but has been eligible to 62 — The reference to the team-sheet means that all five foreign- play for German clubs for the preceding 5 years, including ers can play together. If one of them is substituted, how- at least 3 years as a junior, uninterruptedly' is regarded as a ever, he cannot be replaced by an additional (sixth) for- German player. eigner. 61 — Case 13/76 [1976] E C R 1333. 63 — O n which see point 5 above.

43. In April 1990 RC Liège offered Mr Bos- man a new contract for one season in which his basic wage was reduced to BFR 30 000, in other words, the minimum provided for in Because of doubts as to US Dunkerque's the URBSFA statutes. Mr Bosman refused to ability to pay, R C Liège failed to request sign that contract and was placed on the URBSFA to issue the certificate, so that both transfer list. The transfer fee for a compul- contracts lapsed. As early as 31 July, more- sory transfer was fixed at BFR 11 743 000, in over, RC Liège had Mr Bosman suspended accordance with the relevant rules of the and thereby prevented him for the time association. being from playing in the new season.

I - 4945

OPINION OF MR LENZ — CASE C-415/93

ruling. The court thereupon on 9 November 1990 ordered RC Liège provisionally to pay Mr Bosman the sum of BFR 30 000 a month, made the restraining order sought, and referred a question to the Court of Justice on the compatibility of the transfer system with Articles 3c and 48 of the EEC Treaty. The Court of Justice numbered the case as Case 48. In the main proceedings, also brought C-340/90. before the Tribunal de Première Instance, Liège, on 8 August 1990, Mr Bosman first claimed damages from R C Liège provision- ally assessed at BFR 30 000 000.

However, it were lawful. O n 20 August 1991 Mr Bosman upheld the order for RC Liège to pay the joined UEFA as a defendant. At the same monthly amount to Mr Bosman, and ordered time he brought an action against UEFA for URBSFA and RC Liège to make Mr Bosman a declaration that in so far as the UEFA rules available to any club wanting to engage his provided for a transfer system which pro- services, without demanding compensation vided for a transfer fee to be demanded in from that club.

1990. However, that contract was terminated void rules within 48 hours. O n 5 December

RC Liège joined US Dunkerque as a defen- 51. In its judgment of 11 June 1992 the Tri- dant. bunal de Première Instance, Liège, rejected UEFA's objection that proceedings against it had to be brought in the courts of Switzer- land and held that it had jurisdiction to decide the case pending before it. The inter- vention of U N F P and W C S was declared admissible. The court also declared all the claims admissible. It held that R C Liège had acted unlawfully in causing Mr Bosman's 49. O n 9 April 1992 Mr Bosman submitted transfer to US Dunkerque to fail, and was to further applications to the Tribunal de Pre- compensate the resulting loss. However, the miere Instance, Liège, in which he amended court refused RC Liege's application to join the original claim against RC Liège and also US Dunkerque as a defendant, since no fault brought separate proceedings against URB- on the part of the French club had been SFA and developed the claims against UEFA. shown. Finally, the court made a reference to The action now sought an order restraining the Court of Justice for a preliminary ruling RC Liège, URBSFA and UEFA from hinder- on the interpretation of Articles 48, 85 and ing his freedom to conclude a contract with a 86 of the EC Treaty with reference to the new employer, and an order for those parties transfer system. That case was given the individually or jointly to pay him BFR number C-269/92 by the Court of Justice. 11 368 350 as compensation for the loss incurred from 1 August 1990, BFR 11 743 000 as compensation for the loss caused him by the application of the transfer system from the beginning of his career until 9 November 1990, and a provisional sum of BFR 1 for the costs of the proceedings. Mr Bosman further sought a declaration that the 52. O n appeal, the Cour d'Appel, Liège, in a transfer rules and rules on foreign players of judgment of 1 October 1993 upheld the URBSFA and UEFA were not applicable to decision, in so far as it had held that the him. Mr Bosman also proposed that a pre- interventions were admissible, the court had liminary ruling should be sought from the jurisdiction, and the claims were admissible. Court of Justice. The Cour d'Appel also agreed with the Tri- bunal de Première Instance that the examina- tion of the claims raised against RC Liège, URBSFA and UEFA involved an examina- tion of the lawfulness of the transfer system. It therefore itself made a reference to the Court of Justice for a preliminary ruling. The Court of Justice thereupon removed Case C-269/92 from its register, as it had 50. Two professional players' unions — the become devoid of purpose as a result of the French Union Nationale des Footballeurs new reference. Following a suggestion by Mr Professionnels (hereinafter 'UNFP') and the Bosman, the appellate court moreover con- Netherlands Vereniging van Contractspelers cluded that the lawfulness of the rules on (hereinafter ' W C S ' ) — intervened in the foreign players should also be examined, proceedings in support of Mr Bosman. since Mr Bosman's claim in that respect was

54. URBSFA lodged an appeal in cassation against the judgment of the Cour d'Appel, Liège, and applied for the decision to be 53. The Cour d'Appel, Liège, thus referred extended to RC Liège, UEFA and US the following questions to the Court of Jus- Dunkerque. The Cour de Cassation dis- tice for a preliminary ruling: missed the appeal on 30 March 1995 and held at the same time that the dismissal of the appeal made the applications for exten- sion of the decision devoid of purpose. 64

'Are Articles 48, 85 and 86 of the Treaty of Rome of 25 March 1957 to be interpreted as

55. In the proceedings before the Court of Justice Mr Bosman, URBSFA, UEFA, the French Government, the Italian Government and the Commission submitted written

(i) prohibiting a football club from requir- ing and receiving payment of a sum of 64 — The Cour de Cassation has helpfully provided the Court money upon the engagement of one of with the text of its decision.

I - 4948

U N I O N ROYALE BELGE DES SOCIÉTÉS DE FOOTBALL ASSOCIATION A N D O T H E R S v BOSMAN A N D O T H E R S

As to the rules on foreign players, it should be noted that professional clubs in the Com- munity already employ a considerable num- ber of players today from other Member I — Preliminary observation States and non-member countries. According to figures supplied by URBSFA, for exam- ple, the playing staff of the 18 clubs in the Belgian first division at the beginning of the 1993/94 season comprised 398 players with Belgian nationality and 175 foreign players, although only 61 of them were regarded as foreign for the purposes of the rules on for- eign players. 68 In the event that the Court 56. The importance of the present case is declares the rules on foreign players to be obvious. The answer to the question of the contrary to Community law, it is to be compatibility with Community law of the expected that the number of footballers from transfer system and the rules on foreign the Community earning their living with a players will have decisive influence on the club in another Member State will increase future of professional football in the Com- even more. munity.

58. Transfer rules and rules on foreign play- ers also exist in some form or other in other

57. A few figures may suffice as examples to demonstrate the importance of the transfer 65 — Touche Ross & Co., Survey of Football Club Accounts, system in professional football today. A Manchester 1994 (written by Gerry Boon, Dale Thorpe and Anuh Shah). study by an English firm of accountants 66 — Süddeutsche Zeitung, N o 183, 10 August 1995, p. 31. states that the clubs of the English first divi- 67 — This was the transfer of Gianluigi Lentini from Torino to A C Milan in July 1992 (see The Economist, 17 June 1995, sion — the Premier League — spent nearly p. 96). £51 000 000 (some E C U 62 000 000 at the 68 — That makes sense if one remembers that the rules on for- eigners are mostly based on a definition of foreigner for the then exchange rate) on transfer fees in the purposes of sports law (on this point see point 37 above).

60. It should be observed that the scope of the questions which have been referred is restricted, since they do not concern the entire sphere of the sport of football. The first question, on the transfer system, relates to the transfer of a player who is under con- 62. The outcome of these proceedings is of tract with a club. The question thus relates interest to a large number of citizens in the only to players who play football for wages, Community who are football enthusiasts. in other words, to the field of professional Many play the game themselves or work — football. The field of amateur football is thus often on a voluntary basis — in their clubs in not included. The Court will therefore not other ways. Perhaps even greater is the num- have to decide whether it is compatible with ber of those who follow the game as specta- Community law to demand a transfer fee tors and are especially interested in matches

I - 4950

UNION ROYALE BELGE DES SOCIÉTÉS DE FOOTBALL ASSOCIATION AND OTHERS v BOSMAN AND OTHERS

in the professional leagues. Precisely those court gave no reasons at all why an answer factors oblige the Court of Justice, and to its second question should be necessary myself most of all, to consider the questions for the outcome of the main proceedings. referred objectively and without prejudice.

II — Admissibility of the questions referred Should the Court nevertheless decide to answer the questions in whole or in part, UEFA considers that it should in any event proceed with the greatest caution, since those questions call into question the organization of football as such. 1. The positions of the parties

I-4951

OPINION OF MR LENZ — CASE C-415/93

referred was therefore a purely hypothetical Belgian Code Judiciaire, which permits pre- question. The French Government noted ventive actions for the purpose of averting inter alia that the rules on foreigners were threatened serious damage. According to the not even mentioned in the claim originally national court's findings, the dispute there- brought by Mr Bosman. fore requires, he says, in accordance with the relevant provisions of Belgian law, an exam- ination of the lawfulness of the transfer sys- tem and the rules on foreign players. The Court of Justice can scarcely call into ques- tion that interpretation by the Cour d'Appel, Liège, of provisions of national law. If it nev- After several of those appearing at the hear- ertheless were to do so, the process of coop- ing before the Court had referred to the eration between national courts and the abovementioned decision of the Cour de Court of Justice, which is the basis of Article Cassation, the representative of the French 177 of the EC Treaty, would be damaged. Mr Government expressed the opinion that it Bosman argues that the national court was appeared that as a result of that decision the aware of the case-law of the Court of Justice Court no longer had to answer the second on the admissibility of references for a pre- question, as that question was possibly non- liminary ruling and it more than fulfilled the existent, or no longer existent. obligations arising therefrom, in particular the obligation to give reasons for making the reference.

2. Article 177 and the Court's case-law on 69. The Court has also confirmed in consis­ the admissibility of references for preliminary tent case-law that it is 'solely for the national rulings courts before which actions are brought, and which must bear the responsibility for the subsequent judicial decision, to determine in the light of the special features of each case both the need for a preliminary ruling in order to enable them to deliver judgment 68. Under the first paragraph of Article and the relevance of the questions which 177 of the EC Treaty, the Court of Justice is they submit to the Court'. 7 0 That is also to give preliminary rulings on the interpreta­ supported by the fact that the national court, tion of the E C Treaty and on the validity and which alone has direct and precise knowl­ interpretation of the rules and measures edge of the facts of the case, is in the best adopted on the basis of that Treaty. position to assess those points. 7 1 Where the questions put by national courts concern the interpretation of Community law, 'the Court is, in principle, bound to give a ruling'. 7 2 The Court has nevertheless in a number of cases allowed exceptions to that principle The second paragraph of Article 177 of the and declined to answer some or all of the EC Treaty 6 9 reads as follows: questions referred. 7 3

I - 4953

O P I N I O N O F MR LENZ — CASE C-415/93

74 — See for example the judgments in Case 244/78 Union Laitière Normande v French Dairy Farms [1979] ECR 2663, paragraph 5, and in Joined Cases 36/80 and 71/80 Irish Creamery Milk Suppliers Association v Ireland [1981] ECR 735, paragraph 6. 72. The first group has only very recently 75 — Judgment in Case 244/80 Foglia v Novello [1981] ECR 3045, paragraph 17. That requirement becomes comprehen- become of substantial importance. The sible if one considers the cases in my second group of cases. Court admittedly observed earlier that 'the 76 — Judgment in Case 52/76 Benedetti v Munari [1977] ECR 163, paragraph 22 (with r e s p e c tto some of the questions need to afford a helpful interpretation of put). Community law' makes it essential to 77 — Joined Cases C-320/90, C-321/90 and C-322/90, [1993] ECR I-393. describe to the Court the legal and factual 78 — Telemarsicabruzzo, paragraph 6. context in which the interpretation sought is 79 — Ibid., paragraphs 7 to 10.

I - 4954

UNION ROYALE BELGE DES SOCIÉTÉS DE FOOTBALL ASSOCIATION AND OTHERS v BOSMAN AND OTHERS

It can scarcely be doubted that the Court approach is required here. Rejection of a ref- was thereby following the advice of the erence for a preliminary ruling on the Advocate General, who had recommended 'a ground of an inadequate account of the fac- slightly more restrictive attitude on the part tual and legal context should therefore be of the Court' with respect to the question of restricted to exceptional cases. In several of the requirements for references for prelimi- the cases I have cited, the Court seems to me nary rulings. 80 to have applied an inappropriately strict standard.

80 — Opinion of Advocate General Gulmann [1993] ECR I-409, at p. I-417. 81 — Order in Case C-157/92 Banchero [1993] ECR I-1085, paragraph 4 et seq.; order in Case C-386/92 Monin Auto- 77. In Salonia those conditions were not ful- mobiles [1993] ECR I-2049, paragraph 6 et seq.; order in Case C-378/93 La Pyramide [1994] I-3999, paragraph 14 et filled, and the Court consequently answered seq.; order in Case C-458/93 Saddik [1995] ECR I-511, the questions put to it. It acted differently in paragraph 12; order in Case C-167/94 Grau Comis [1995] ECR I-1023, paragraph 8. But see also the judgment in Case C-316/93 Vaneetveld and Others [1994] ECR I-763, where the rigour of that principle was mitigated for a restricted area (paragraphs 13 and 14). 82 — See the order in Saddik, cited above (note 81), paragraph 10, 83 — Case C-126/80 Salonia v Poidomani and Giglio [1981] ECR and the order in Grau Gomis, cited above (note 81), para- 1563. graph 10, both with references to the earlier case-law. 84 — Ibid., paragraph 6 (my emphasis).

I - 4955

O P I N I O N O F MR L E N Z — CASE C-415/93

88 — See the judgments in Case 166/84 Thomasdünger v Oberfinanzdirektion Frankfurt am Main [1985] ECR 3001, paragraph 11; Joined Cases C-297/88 and C-197/89 Dzodzi [1990] E C R I-3763, paragraph 40; Gmurzynska-Bscher, cited above (note 72), paragraph 23; Case C-368/89 Crispol¬ toni [1991] E C R I-3695, paragraph 11; Case C-186/90 Durighello [1991] E C R I-5773, paragraph 9; Case C-67/91 Asociación Española de Banca Privada and Others [1992] ECR I-4785, paragraph 26; and Eurico Italia, cited above (note 70), paragraph 17. The order in Case C-428/93 Monin Automobiles [1994] ECR I-1707, where the Court, referring to the judgment in Salonia and the order in Falciola, held that it 'manifestly' had no jurisdic- tion to answer the questions submitted (paragraph 16), also belongs here. So does the judgment in Case 132/81 78. The Court has repeated and confirmed Rijksdienst voor Werknemerspensioenen v Vlaeminck [1982] ECR 2953, where the national court had mistakenly the abovementioned reasoning in the Salonia supposed that provisions of Community law were applicable. 89 — Judgments in Case C-343/90 Lourenço Dias v Director da Alfândega do Porto [1992] E C R I-4673, paragraph 18, and Corsica Ferries, cited above (note 73), paragraph 14; order 85 — Order in Case C-286/88 Falciola [1990] E C R I-191. in La Pyramide, cited above (note 81), paragraph 12. 86 — See the account in paragraph 5 of the order cited in note 85. 90 — Order in Monin Automobiles, cited above (note 88), para- 87 — Ibid., paragraph 8 et seq. graph 16.

I - 4956

UNION ROYALE BELGE DES SOCIÉTÉS DE FOOTBALL ASSOCIATION AND OTHERS v BOSMAN AND OTHERS

81. The third group of cases, finally, starts with the Court's decisions in Foglia v Nov- Its starting-point was that in principle the ello. The main action in the Italian court national courts decide on the need for a pre- concerned a dispute between an Italian wine liminary ruling and have a 'power of merchant and a customer who was also Ital- appraisal' in so doing. 93 There were, how- ian. Mrs Novello had agreed with the wine ever, certain limits: merchant that the cases of Italian liqueur wine she had bought would be sent to France and that she would not be liable for any duties charged by the Italian or French 91 — Judgment in Case 104/79 Foglia v Novello [1980] ECR 745, authorities which were contrary to the pro- paragraph 10. 92 — Case 244/80 Foglia v Novello, cited above (note 75). visions of the E C Treaty on the free move- 93 — Ibid., paragraphs 15 and 16.

I - 4957

O P I N I O N O F MR L E N Z — CASE C-415/93

I - 4958

UNION ROYALE BELGE DES SOCIÉTÉS DE FOOTBALL ASSOCIATION AND OTHERS v BOSMAN AND OTHERS

mentioned. In Gmurzynska-Bscher, for 3. Examination of the admissibility of the instance, the Court qualified as follows the questions submitted by the Cour d'Appel, statement of principle that it is for the Liège national courts to decide on the need for a preliminary ruling:

86. If the questions submitted by the Cour d'Appel, Liège, are examined in the light of the above considerations, there can surely be 'It would be otherwise only in cases where no reasonable doubt that the cases in the first either it appears that the procedure of Article group are not relevant here, since the 177 of the Treaty has been misused and been national court can by no means be criticised resorted to, in fact, in order to elicit a ruling for not having informed the Court of Justice from the Court by means of a spurious dis- of the factual and legal context of the ques- pute or if it is obvious that the provisions of tions it has referred. Community law submitted for the interpre- tation of the Court cannot apply.' 98

87. The order for reference comprises some 80 closely written pages. It not only describes the factual circumstances of the An identical statement can be found in the case in detail, it also explains the legal con- Dzodzi judgment. 99 siderations which induced the national court to regard the claims as admissible and refer the questions to the Court. Few orders for reference from national courts are as thor- ough and detailed as this one.

foreign players are invalid or are not applica- plausible is not relevant in this connection. ble to him. That application is based on the The Court of Justice must simply be put in a claim that the existence of those rules results position to make a proper preliminary ruling in a serious threat to Mr Bosnian's future in awareness of the circumstances of the career. The admissibility of that application main proceedings. In my opinion, the order is in the opinion of the Cour d'Appel, Liège, for reference allows it to do so. to be assessed with reference to the situation which existed when the application was lodged. At that time, in the national court's opinion, Mr Bosman fulfilled the necessary conditions for an action under Article 18 of the Belgian Code Judiciaire to be admissible, since it could not be excluded that on expiry of his contract with the club in Réunion he might find a new club in the Community outside Belgium. The national court there- fore held that the claim was admissible in that respect. 90. A more difficult question is whether the admissibility of the request for a preliminary ruling might perhaps give rise to doubts against the background of the cases in the second group. In other words, the point is whether the questions submitted manifestly In that court's view it was consequently pos- have no relation to the 'actual nature of the sible that Mr Bosman might seek to find a case or to the subject-matter of the main foreign club within the Community. The action'. That difficulty only arises, however, rules on foreign players would prove to be for the second question. The attempts by an obstacle in that search. According to that UEFA and URBSFA to cast doubt on the view, Mr Bosman thus had an interest in admissibility of the first question are not obtaining a declaration in advance that those convincing. Whether Mr Bosnian's transfer rules were not to be applied in his case. For to US Dunkerque would have come to pass that purpose a preliminary ruling was to be if the UEFA rules which were allegedly obtained from the Court of Justice, since the applicable had been applied correctly, is not compatibility of the rules on foreign players decisive for the present case. That point with Community law had not yet altogether relates at most to resolving the question of been clarified. who is to be held directly responsible for the failure of that transfer. Mr Bosman has, how- ever, raised the broader question of whether those transfer rules as such are lawful. In order to decide that question, a preliminary ruling by the Court of Justice is undoubt- edly necessary. Should the transfer rules 89. Those considerations are concisely prove to be unlawful, that will influence the expressed, but make it possible to follow the decision of the national court. There is thus national court's reasoning without difficulty. certainly a connection between the interpre- That is all that matters here. Whether the tation of Community law sought by the first national court's opinion is correct or merely question and the main action.

91. The second question too is connected secondhand cars, while the seventh question with the 'subject-matter' of the main action. concerned motor vehicles built before That subject-matter is defined by the plain- 1951. 103 In the present case, on the other tiff's claims. In the proceedings before the hand, it is plain that the questions submitted national courts the plaintiff has sought a dec- relate to the factual situation which the laration that the rules on foreign players are national court had to assess. In the second not applicable to him. That head of claim is order it made in Monin Automobiles the based on the assertion that those rules Court found that the questions submitted infringe Community law. Given those cir- could only be relevant to a possible action to cumstances, I do not see how there can be establish the liability of the French authori- any doubt that there is a connection between ties or an action before the French compe- the interpretation of Community law sought tition authorities. The judge making the ref- and the main action. erence, however, merely had to carry out certain functions in the winding-up proceed- ings. Neither of the two actions referred to had been brought before him or could be brought before him. The judge therefore did not have the function of applying the provi- sions of Community law at issue. 104 In the present case, by contrast, the national court has held precisely that it has jurisdiction to decide the action brought before it. Even more important in this context is the Corsica Ferries judgment. 105 In that case the Court 92. That is confirmed, in my opinion, by held that the Commission had rightly looking at the previous decisions in which observed that the application which was the Court has declined in such cases to before the national court related only to cer- answer the questions submitted to it. The tain facts. The questions which related to facts behind the decision in Falciola have other facts were consequently rejected. 106 As already been described. 100 In that case it was I have already mentioned several times, how- easy to see that the questions referred had ever, Mr Bosman's application in the pro- nothing to do with the main action. That is ceedings before the national courts is pre- not the case here, as I have already shown. In cisely for a declaration that the rules on Lourenço Dias 101 the proceedings before the foreign players are not applicable to him. Portuguese court which made the reference The order in La Pyramide is very lapidary, concerned a new vehicle constructed in but the reasoning appears to correspond to 1989 and imported from France. The Court that used by the Court in Corsica Ferries. 107 of Justice declined to answer six of the eight questions submitted, on the ground that they 'manifestly bore no relation to the facts at the origin of the main action'. 102 Two exam- ples may suffice to make that clear. The first question submitted related to the import of

93. There is therefore in my opinion a con- referred may have become otiose as a result nection between the second question submit- of that decision does not withstand examina- ted and the subject-matter of the main tion. That second question was not directly action. But even if that conclusion were not at issue in the cassation proceedings and was accepted, it would have to be observed that a therefore not discussed by the Cour de Cas- rejection of the question submitted would be sation. In the grounds stated for its decision possible only if such a connection was man- that court demonstrates its view that the ifestly lacking. That at least can be ruled out, Liège Cour d'Appel had not, in its judgment in view of what has been said above. of 1 October 1993, declared admissible Mr Bosman's application for a declaration that the URBSFA rules on foreign players did not apply to him. That may well be regarded as making a correction to the judgment of the court making the reference, since that court 94. The grounds stated in the decisions — as mentioned above — had regarded all which fall within this group of cases, how- the claims as admissible. In my opinion, ever, not only focus on the absence of a con- however, the decision is limited in this nection between the interpretation of Com- respect to a correction of a possible mistake munity law sought and the subject-matter of by the Liège Cour d'Appel. The Belgian the main action, but also refer to the fact that association's rules on foreign players can such a connection must exist also with indeed in no way affect the rights of Mr Bos- respect to the actual nature of the main man as a Belgian national. However, that has action. 108 That consideration, which played no consequences for the assessment of the no part in the judgments in this group which second question submitted, relating to the have been discussed above, clearly links up rules on foreign players, since Mr Bosman with the reasoning used by the Court in also brought a corresponding application for judgments in the third group of cases. The a declaration of non-applicability against question of the 'actual nature' of a dispute UEFA, and that application concerned the can only mean that it must be examined UEFA rules or the rules of the national asso- whether the case is basically a fictitious or ciations based on them. artificial dispute. I shall address this point in a moment, when I discuss the relevance for the present proceedings of the decisions in the third group of cases.

97. It cannot be denied that the one and the interim order. It appears that the point other opinion both have a certain justifica- became important only with the claim tion. That applies only to the second ques- lodged by Mr Bosman in August 1991. The tion submitted, however. With respect to the reasoning by which the court making the question on the compatibility of the transfer reference seeks to support its opinion that system with Community law, there can be this question was raised in Mr Bosman's no doubt that Mr Bosman is pursuing a con- applications from the outset does not seem cern which is both legitimate and under- to me to be free of all doubt. standable. As a result of the — correct or incorrect — application of the transfer rules Mr Bosman has suffered damage, for which he would like to obtain compensation from the national courts. If in the process he also 98. The Court could therefore, on the basis challenges the lawfulness of the transfer sys- of its previous case-law, indeed reach the tem as such, he is perfectly entitled to do so. conclusion that the second question submit- ted should be rejected as inadmissible.

Such an cation of those rules, in the exercise of his examination leads in my opinion to the con- professional activity as a footballer. It has clusion that rejection of the question is pos- rightly been observed that he has already sible, but neither necessary nor appropriate. played for foreign clubs. His difficulties in The reasons for that conclusion will be finding a new club after the events of sum- explained below. mer 1990 are — disregarding other circum- stances — probably attributable less to his nationality than to the boycott which appears to have been directed against him.

A court

100. N o w it is of course true that the admis- sibility of such questions is subject to restric- tions under national law too, for comparable reasons. The national courts are to act only where this is really necessary. According to the national court, the abovementioned Arti- 102. Furthermore, the national court was cle 18 of the Belgian Code Judiciaire there- aware of the case-law of the Court of Justice fore imposes a number of conditions on the on the possible inadmissibility of questions admissibility of such an action. Under that referred for a preliminary ruling and summa- article, the action is inter alia admissible only rized it briefly in its order for reference. If if the threat to the right in question is grave the Cour d'Appel nevertheless submitted the and serious, not merely hypothetical. Since second question, that means that regardless the Cour d'Appel, Liège, declared the action of that case-law it considered that it required admissible in the present case, it was evi- an answer of the Court of Justice to that question, in order to be able to reach a decision in the proceedings pending before it. That too will have to be taken into 109 — See the passage from the Foglia v Novello judgment quoted in point 82 above. account by the Court in this connection.

I - 4964

UNION ROYALE BELGE DES SOCIÉTÉS DE FOOTBALL ASSOCIATION AND OTHERS v BOSMAN AND OTHERS

110 — See point 82 above. 112 — Cited above (note 97). 1 1 1— Foglia v Novello, cited above (note 75), paragraph 18. 113 — Ibid., paragraphs 29 to 34.

I - 4965

OPINION OF MR LENZ — CASE C-415/93

That reasoning leaves many points open. It is called into question by an artificial pro- easier to understand if one compares it with cedure in another Member State. That is not the clear statements of Advocate General stated in the judgment, but the reference to Tesauro. The Advocate General observed the interests of the Member States which are that in the proceedings before the national to be taken into account by the Court 115 is court (and even before then) Mr Meilicke in my opinion clear enough. Third, it is evi- had argued that the relevant case-law of the dent that the rejection of the questions sub- Bundesgerichtshof was contrary to Commu- mitted had no consequences, in that any nity law. Mr Meilicke was thus advancing an court confronted with an actual dispute con- argument which would necessarily lead to cerning those provisions of French law his claim being dismissed. Advocate General retained the possibility of asking the Court Tesauro thus concluded, correctly and suc- of Justice for a preliminary ruling on those cinctly, that 'the dispute before the national points. Thus the firm which transported the court [had] been visibly "orchestrated" by shipment of wine, for instance, or another of Mr Meilicke himself'. 114 the parties could have challenged the deter- mination by the French authorities of the duties in question before the competent French courts. Those courts could then have requested the Court of Justice for a prelimi- nary ruling.

109. As to the question whether the main in this case as inadmissible. The question action has perhaps been brought before a therefore arises whether the Court ought to court of a Member State in a manner which make use of that possibility. could endanger the rights of other Member States or other parties from other Member States, UEFA at most could be affected, its base being not in Belgium but in Switzer- land. UEFA indeed used that argument in the main action to challenge the jurisdiction of the Belgian courts. It is beyond doubt, however, that the rules of UEFA apply inter alia in all the Member States of the Commu- 112. The reason why I answer that question nity. The courts of each of those Member in the negative is that I cannot see how the States are therefore in a position to raise the question of the compatibility of the rules on question of the compatibility of those rules foreign players with Article 48 of the E C with Community law. Finally, it should be Treaty (it may be different with Articles observed that that question could not be dis- 85 and 86) could reach the Court in any cussed at all in the Swiss courts or referred to other way. Although the Commission has the Court of Justice under Article 177 of the long criticized those rules, it has not brought EC Treaty. an action under Article 169 for breach of Treaty obligations, since the prospects of success of such an action appeared to it to be uncertain for procedural reasons. 116 N o request by a national court for a preliminary ruling concerning those rules has reached the Court since the Donà case (to be discussed below) in 1976. That seems to me not to be a matter of chance. Those affected are either unwilling or unable to have the matter clari- fied by the courts. 110. I therefore conclude that the questions which have been submitted are admissible both under the wording of Article 177 and under the most recent case-law on it.

proceedings against them. 117 In one case, in Court except along the path trodden in the the Netherlands, the match was replayed. 118 present case. If 1. FC Nürnberg, for instance, The second case occurred recently in in the case described above, had applied to Germany. In spring 1995 1. FC Nürnberg, the national courts and if those courts had threatened with relegation, were at home to sought a preliminary ruling from the Court, SV Meppen in a German second division considerable time would have elapsed — as match. A few minutes before the end the present procedure shows — until an Nürnberg, who were leading 2-0, by mistake answer was given. That could have meant brought on as substitute a fourth foreigner, that the question of relegation from the sec- who had Austrian nationality. Because of ond division of the Bundesliga (with all the that infringement, the DFB awarded the associated consequences for other teams) match, which had ended 2-0 to Nürnberg, would have been settled only after two years to SV Meppen by two goals to nil and or even later. That that would have been two points to nil. Nürnberg accepted the intolerable is obvious. deduction of the points. That confirms the view that those involved in sport as a rule voluntarily abide by the agreed rules and are unwilling to bring their disputes before the national courts. 119

118 — Giltay Veth, op. cit. (note 117), p. 510. 119 — This is summed up by Alessandra Giardini, who says that clubs prefer a sort of 'quiete sportiva' ('Diritto comuni- 116. If, on the other hand, proceedings tario e libera circolazione dei calciatori', Diritto comuni- tane e degli scambi intemazionali 1988, p. 437, at p. 444). before national courts actually are brought,

I - 4968

UNION ROYALE BELGE DES SOCIÉTÉS DE FOOTBALL ASSOCIATION AND OTHERS v BOSMAN AND OTHERS

experience from other sports shows that the N o r can I see what interest deserving of pro- Court of Justice will not necessarily be tection the associations in question might consulted. 120 The Liège courts which dealt have in the question submitted for a prelim- with the main action are in this respect an inary ruling not receiving an answer. The exception to the rule. insistence with which they have put forward their argument that the second question sub- mitted is inadmissible might easily give an impartial observer the impression that they simply do not want the rules on foreign players to be tested by reference to Commu- nity law. That such an intention — if it really did exist — should not be taken into account is self-evident.

I - 4969

O P I N I O N O F MR L E N Z — CASE C-415/93

of a football club had, however, commis- Ill — Previous decisions of the Court in the sioned Mr Donà to sound out footballing field of sport circles abroad to see if players could be found who might be prepared to play for that Italian club. Mr Donà thereupon put a corresponding advertisement in a Belgian sports newspaper. His principal refused to reimburse the costs incurred thereby, how- ever, on the ground that Mr Donà had acted 120. In two important decisions in the 1970s overhastily. He referred to the Italian associ- the Court ruled on the applicability of Com- ation's rules preventing the use of foreign munity law in the field of sport. Those were players. Mr Donà therefore sued for the firstly the Walrave judgment 1 2 4and sec- amount in question before the Giudice Con- ondly the Donà judgment, which has already ciliatore, Rovigo. The judge asked the Court been referred to several times. Those deci- of Justice whether the rules on foreign play- sions have been discussed at length in the ers were compatible with Community present proceedings. It is therefore of use for law. 122 the examination of the two questions sub- mitted to start with a short account of those two decisions.

I - 4970

U N I O N ROYALE BELGE DES SOCIÉTÉS DE FOOTBALL ASSOCIATION A N D OTHERS v BOSMAN A N D OTHERS

122. The Court first examined the question This prohibition however does not affect the whether Community law can be applicable composition of sport teams, in particular in the field of sport: national teams, the formation of which is a question of purely sporting interest and as such has nothing to do with economic activity.

'Having regard to the objectives of the Com- munity, the practice of sport is subject to Community law only in so far as it consti- tutes an economic activity within the mean- ing of Article 2 of the Treaty. This restriction on the scope of the provi- sions in question must however remain lim- ited to its proper objective.' 125

When such activity has the character of gain- ful employment or remunerated service it comes more particularly within the scope, according to the case, of Articles 48 to 51 or The Court left it to the national court to 59 to 66 of the Treaty. determine whether the case concerned an activity which was thus subject to Commu- nity law and whether the pacemaker and stayer constituted a team. 126 It added that its answers to the questions were given 'within the limits defined above of the scope of Community law'. 127 These provisions, which give effect to the general rule of Article 7 of the Treaty, pro- hibit any discrimination based on nationality in the performance of the activity to which they refer.

123. The Court then turned to the problem of whether Community law could also be applied to the rules of private sporting asso- ciations. It held that it could be: In this respect the exact nature of the legal relationship under which such services are performed is of no importance since the rule 125 — Ibid., paragraphs 4 to 9. of non-discrimination covers in identical 126 — Ibid., paragraph 10. terms all work or services. 127 — Ibid., paragraph 11.

'Having regard to the objectives of the Community, the practice of sport is subject 'The activities referred to in Article 59 are to Community law only in so far as it not to be distinguished by their nature from those in Article 48, but only by the fact that

129 — Ibid., paragraphs 23 and 24. 130 — See point 119 above. 128 — Ibid., paragraphs 17 and 18. 131 — Donà, cited above (note 61), paragraphs 17 and 18.

I - 4972

UNION ROYALE BELGE DES SOCIÉTÉS DE FOOTBALL ASSOCIATION AND OTHERS v BOSMAN AND OTHERS

constitutes an economic activity within the Having regard to the above, it is for the meaning of Article 2 of the Treaty. national court to determine the nature of the activity submitted to its judgment.' 132

This applies to the activities of professional or semi-professional football players, which 125. From those two judgments the follow- are in the nature of gainful employment or ing conclusions, of relevance for the present remunerated service. case, may be drawn:

(5) The Court allows certain exceptions to apply to the clubs concerned by the present the prohibitions contained in those provi- case, RC Liège and US Dunkerque. It sub- sions. While in Walrave the question of mits that if the activity of those clubs none the formation of teams in competitions is the less does constitute an economic activity, still excepted from the prohibition, in it is one of a trivial nature only. That submis- Dona the Court restricts the exception to sion must be rejected. As the Court has the exclusion of foreign players from cer- rightly held, professional football is an econ- tain matches. In both judgments the omic activity. The size of that activity is exceptions are linked with non-economic immaterial, as is the question of to what grounds which relate exclusively to sport. extent it leads to a profit.

I - 4974

UNION ROYALE BELGE DES SOCIÉTÉS DE FOOTBALL ASSOCIATION AND OTHERS v BOSMAN AND OTHERS

I - 4975

OPINION OF MR LENZ — CASE C-415/93

2. Article 48 and the rules on foreign players pose of employment there, and in certain cases to remain there after having been employed. Article 48(4), which provides for an exception for employment in the public service, is not relevant to the present case.

(a) Breach of the prohibition of discrimi- nation in Article 48

134. The Court left it open in its Dona judg- 133. The first two paragraphs of Article ment whether the provisions of Article 48 on 48 of the EC Treaty read as follows: workers or the provisions on services (Arti- cle 59 et seq.) apply to the activities of pro- fessional footballers. The questions submit- ted relate to Article 48 only. It appears indeed correct that the professional foot- ballers active in a football club are to be '1. Freedom of movement for workers shall regarded as workers within the meaning of be secured within the Community by that provision. The following observations the end of the transitional period at the will therefore deal with that provision only. latest. However, the result would be no different if the examination had to be done with refer- ence to Article 59 et seq.

movement for workers within the Commu- play. 137 Reference has also rightly been made nity, 134 which provides that provisions laid to the provision in Article 48(3)(c) that down by law, regulation or administrative workers from other Member States may stay action of the Member States which restrict in the territory of a Member State for the 'by number or percentage' the employment purpose of employment 'in accordance with of foreign workers are not to apply to the provisions governing the employment of nationals of other Member States. The rules nationals of that State laid down by law, on foreign players are therefore incompatible regulation or administrative action'. 138 The with the prohibition of discrimination under current rules, under which only the number Article 48(2), in so far as they relate to of foreign players who can play at one time nationals of other Member States. 135 is limited, but not the number of players a club can engage, admittedly in that respect definitely represent progress compared with the previous situation, but do not alter the fact that those rules are still in breach of Article 48. 139 The same is true of the fact that under the amendments introduced by UEFA in 1991, more foreign players can

Every club which plans and acts in a reasonable manner will take the rules on foreign players into account in its personnel policy. N o such club will therefore engage more — or signif- icantly more — foreign players than it may play in a match. 136 Only a few big clubs will be in a position to afford the luxury of engaging more foreign players than they can 137. It must, however, be considered whether the rules on foreign players can nev- ertheless be regarded as lawful in the light of the Court's case-law. As mentioned above, in

Thus the libre circulación de deportistas en la Comunidad Europea', financially strongest clubs in the German Bundesliga, Bay- Boletín de Derecho de las Comunidades Europeas 1989, ern München and Borussia Dortmund, at present (includ- p. 169, at pp. 180-181; Stephen Weatherill, 'Discrimination ing amateurs under contract) have six and five foreign on Grounds of Nationality in Sport', Yearbook of Euro- players respectively under contract in the 1995/96 season. pean Law 9 (1989), Oxford 1990, p. 55, at p. 66 ('plainly in As a comparison: Borussia Dortmund's playing staff for breach of Article 48'). this season comprises 25 players, Bayern München's 21 players (see the sports magazine Kicker, Bundesliga 136 — This is also the opinion of Hilf, op. cit. (note 123), p . 521; 1995/96 special issue, pp. 67 and 71). Marticke, op. cit. (note 123), p. 65; Maria Casteflaneta, 'Libera circolazione dei calciatori e disposizioni della 138 — Hilf, op. cit. (note 123), p. 521 (my emphasis). FIGC', Diritto comunitario e degli scambi internazionali 139 — As Castellaneta, for instance, says: op. cit. (note 135), 1991, p. 635, at p. 643. p. 644 ('solo un mutamento della violazione del Trattato').

the Walrave judgment the Court was of the unaware that the question of the composi- opinion that the prohibition of discrimi- tion of teams may very well be dominated nation under Article 48 does not affect 'the by non-sporting motives. composition of sport teams, in particular national teams'. In Dona, on the other hand, it held that that prohibition was not infringed if foreign players were excluded '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 differ- ent countries'. 140 139. The Court has, however, justifiedly been criticized for not giving a clear answer, either in the Walrave judgment or in the Donà judgment, to the questions submitted to it. 141 Neither the basis of the 'exception' nor its extent can be deduced with certainty from the judgments. According to the word- ing of the two judgments — which speak of a 'restriction on the scope' of Community law — it appears to be a sort of limited exception as to scope. 142 It is plain, however, that in those judgments the Court expressed the view that rules which prescribe that only players who possess the nationality of a State 138. In my opinion it should be observed to can play in that country's national team are begin with that in the present context the consistent with Community law. That con- formulation used in Donà is to be consid- clusion appears obvious and convincing, but ered. That is not only because the Dona is not easy to state the reasons for it. In view judgment was given after Walrave and, in particular of the fact that matches between unlike the latter, related to football, which is national teams — as in the football World the sport concerned in this case. In addition Cup — nowadays indeed have considerable to that, the wording of the Dona judgment financial significance, it is hardly still possi- represents a limitation of the proposition ble to assume that this is not (or not also) adopted in Walrave. That is evident merely economic activity. 143 The exception accepted from the fact that the Donà case concerned the composition of teams. If the question of the composition of teams was indeed 'of purely sporting interest', as the Court 141 — For a very critical position, see for instance Laura Forlati Picchio, 'Discriminazioni nel settore sportivo e Comunità appeared to assume in Walrave, the Court Europee', Rivista di Diritto Internazionale 59 (1976), could have contented itself in Donà with a p. 745, who speaks of 'escamotage' (p. 757); Hilf, op. cit. (note 123), p. 520, notes the existence of two 'eher sibylli- simple reference to that judgment. It rightly nischer Entscheidungen'; Christoph Palme, Hermann Hepp-Schwab and Stephan Wilste, 'Freizügigkeit im did not do so, since it was presumably not Profisport — EG-rechtliche Gewährleistungen und proz- essuale Durchsetzbarkeit', Juristenzeitung 1994, p. 343, at p. 344, speak of 'äußerst vagen und unklaren Feststellun- gen'. 142 — See for instance Schweitzer, op. cit. (note 117), p. 83. 140 — See point 124 above. 143 — Already observed by Marticke, op. cit. (note 123), p. 58.

140. Whatever the basis for that exception may be, it is in any event not applicable in the present case, in my opinion. In Donà the Court expressly limited the exclusion of for- eign players to specified matches distin- guished by a special character and context, and moreover stated expressly that that lim- itation had to remain limited to its proper objective. If it were accepted that players 141. A number of further considerations from other Member States could also be have been advanced as justification for the excluded from matches in the national rules on foreign players, and these must now leagues, the right to freedom of movement be examined. Three groups of arguments can would be devalued or in extreme cases com- essentially be distinguished. First, it is pletely done away with for such persons. 146 emphasized that the national aspect plays an That cannot be right. It is admittedly correct important part in football; the identification that in those two judgments the Court men- of the spectators with the various teams is tioned national teams merely as examples. guaranteed only if those teams consist, at However, it cannot be deduced therefrom least as regards a majority of the players, of that the Court considered that rules on for- nationals of the relevant Member State; eign players were acceptable for national moreover, the teams which are successful in leagues. Advocate General Trabucchi had the national leagues represent their country admittedly regarded that as possible in his in international competitions. Second, it is Opinion in Donà. 147 I think, however, that argued that the rules are necessary to ensure that is not compatible either with the that enough players are available for the rel- evant national team; without the rules on foreigners, the development of young players would be affected. Third and finally, it is 144 — Rightly stated by Castellane«, op. cit. (note 135), p. 653. asserted that the rules on foreigners serve the Similarly Manfred Zuleeg, 'Der Sport im europäischen Gemeinschaft', in: Michael R. Will (ed.), Sportrecht in purpose of ensuring a certain balance Europa, Heidelberg 1993, p. 1, at p. 6. 145 — But see point 214 et seq. below. One may note, for exam- between the clubs, since otherwise the big ple, the attempts to s u t e reasons by Advocate General clubs would be able to attract the best play- Warner in Walrave (Opinion, [1974] ECR 1405, at p. 1426 — t h e 'officious bystander' test) and by Hilf, op. ers. cit. (note 123), p. 521 ('die sportliche Gesichtspunkte' were still predominant). 146 — As rightly stated by Hans Georg Fischer, ' E G - Freizügigkeit und Sport. Zur EG-rechtüchen Zulässigkeit von Ausländerklauseln im bezahlten Sport', SpuRt 1994, 148 — Already observed by Ernst Steindorff, 'Berufssport im p. 174, at p. 176. Gemeinsamen Markt', Recht der internationalen 147 — [1976] ECR 1333, at p. 1344. Wirtschaft 1975, p. 253, at p. 254.

142. The arguments in the first group would players breach those principles in such a bla- appear to latch on to the Court's observation tant and serious manner that any reference to in Donà that matches from which foreign national interests which cannot be based on players can be excluded must have a special Article 48(3) must be regarded as inadmissi- character and context. In this connection the ble as against those principles. representative of the German Government spoke with particular emphasis at the hearing before the Court. He asserted that the 'national character of the performance' char- acterized first division professional football. A glance at the reality of football today shows that that does not correspond to the facts. The vast majority of clubs in the top 143. As to the identification of spectators divisions in the Member States play foreign with the teams, there is also no need for players. In the German Bundesliga, for extensive discussion to show the weakness of example, I am not aware of any club which that argument. As the Commission and Mr does without foreign players altogether. If Bosman have rightly stated, the great major- one considers the most successful European ity of a club's supporters are much more clubs of recent years, it becomes clear that interested in the success of their club than in nearly all of them have several foreign play- the composition of the team. 149 N o r does ers in their ranks. In many cases it is pre- the participation of foreign players prevent a cisely the foreign players who have charac- team's supporters from identifying with the terized the team in question — one need team. Quite on the contrary, it is not uncom- only recall the AC Milan team in the early mon for those players to attract the admira- 1990s, whose pillars included the Dutch tion and affection of football fans to a special players Gullit, Rijkaard and Van Basten. degree. One of the most popular players ever There may indeed be certain differences from to play for TSV 1860 München was country to country with respect to the play- undoubtedly Petar Radenkovic from what ing style or the mentality of players. That was then Yugoslavia. The English interna- has, however, by no means prevented foreign tional Kevin Keegan was for many years a players playing in the national leagues. favourite of the fans at Hamburger SV. The popularity of Eric Cantona at Manchester United and of Jürgen Klinsmann at his former club Tottenham Hotspur is well known.

this context. It is argued that since the clubs ple, is an Englishman. That emphasizes that a often bear the name of a town, the spectators 'national' characterization of football, in the should be able to see players of the same sense that players and managers must be nationality in the team in question. How- nationals of the country in which the club in ever, if a club adopts a name which contains question is based, hardly comes into ques- the name of a place, it could at most be tion. expected or demanded that that club's play- ers should come from the place in question. Yet it is a well-known fact that in the case of Bayern München, for instance, only a few of the players come from Bavaria (let alone Munich). If nationals who come from other parts of the relevant State are accepted with- out question, one cannot see why that should not also be the case for nationals of other Member States. 144. It is further argued that the clubs which are successful in the national leagues repre- sent the Member State in question in the European competitions and must therefore consist of at least a majority of nationals of that State; and that the 'German champions', for example, can thus emerge only from a competition between club teams for which 'at least a minimum number of German Finally, it should be observed that the suc- players play'. 1 5 1 That argument too fails to cess and playing style of a team are largely convince. Firstly, the proponents of that determined by the manager. The Court has view are unable to explain why precisely the already held, however, that football trainers rules currently applied are necessary to enjoy the right to freedom of movement ensure that. If what mattered was that a team under Article 48. 150 It did not even consider should consist predominantly of nationals of that those persons might perhaps be subject the State concerned, with eleven players in a to restrictions other than those expressly team it would suffice generally to allow u p to permitted by Article 48. In practice frequent five foreign players. And if only a 'minimum use is in fact made of that right. The best- number' of players had to possess the known example is probably FC Barcelona, nationality of the State concerned, even more which has had a Dutch manager for a long foreign players would have to be allowed. time. Hamburger SV achieved its greatest Moreover, it should be observed that the success with an Austrian manager, and Bay- concept of 'German champions' can be inter- ern München has had a whole series of for- preted without difficulty in a different way eign managers in recent decades. A country's from that sought by the proponents of that national team is not always managed by a view. There is no reason why that term can- national of that country either. Thus the not be taken as designating the club which manager of the Irish national team, for exam-

145. The arguments in the second group are not convincing either. Nothing has demon- strated that the development of young play- ers in a Member State would be adversely affected if the rules on foreign players were dropped. Only a few top teams set store on The argument fails to convince, however, for promoting their own young players as, for another reason too. In Germany, for exam- instance, Ajax Amsterdam do. Most talented ple, the rules on foreign players do not apply players, by contrast, make their way to amateur teams. Some of those teams take upwards via small clubs to which those rules part in the cup competition organized by the do not apply. 154 Moreover, there is much to DFB. It is thus theoretically possible for an support the opinion that the participation of amateur team consisting of 11 foreign play- top foreign players promotes the develop- ers to win the DFB cup and thus qualify to ment of football. 155 Early contact with for- enter the European Cup-Winners' Cup. That eign stars 'can only be of advantage to a this is not a purely hypothetical case is young player'. 156 shown by the example of the Hertha BSC Berlin amateurs who reached the German cup final in 1993. The weakness of the argu- ment becomes even more apparent if one considers that an association such as Scot- land has no rules on foreign players and the other British associations have special rules for their mutual relations. 153 It can thus per- It is admittedly correct that the number of fectly well happen that clubs from those jobs available to native players decreases, the associations use a large number of players more foreign players are engaged by and from other Member States in the leagues and play for the clubs. That is, however, a conse- competitions organized by their associations, quence which the right to freedom of move- but are forced to limit the number of such ment necessarily entails. Moreover, there is players when they take part in UEFA com- little to suggest that abolition of the rules on petitions. I cannot see how in such a case the foreign players might lead to players pos- abovementioned argument could be used to sessing the nationality of the relevant State justify professional footballers from the

becoming a small minority in a league. The Moreover, the national teams of the Member removal of the rules on foreign players States of the Community nowadays very would not oblige clubs to engage (more) for- often include players who carry on their eigners, but would give them the possibility profession abroad, without that causing par- of doing so if they thought that promised ticular disadvantages. It suffices that the success. players have to be released for the national team's matches, as is also provided for in the current rules of the associations. The best example is perhaps the Danish national team which won the European Championship in 1992. In the German national team which became world champions in 1990 there were several players who played in foreign leagues. It is therefore not evident that the rules on foreigners are necessary in order to ensure the strength of the national team. 146. The argument that the rules on foreign players are needed to ensure that enough players develop for the national team is also unconvincing. Even if that consideration were to be regarded as legitimate in the light of the Court's judgments in Walrave and Donà, it could not justify the rules on for- eigners. As I have already mentioned, it is unlikely that the influx of foreign players would be so great that native players would no longer get a chance. It is also significant here that the success or failure of the 147. Third and finally, it is argued that the national team also has an effect on the inter- rules on foreign players serve to preserve the est in the club matches of the country in balance between clubs. In the opinion of question. Winning the World Cup, for URBSFA, the big clubs would otherwise be instance, generally brings about increased able to secure the services of the best players interest of spectators in national league from the entire Community and thereby matches as well. It is therefore in a country's increase further the economic and sporting clubs' very own interests to contribute to the distance between them and the other clubs. success of the national team by developing The interest thus given expression is — as I suitable players and making them available. shall explain later — a legitimate one. Like The prestige which those players acquire in Mr Bosman, however, I am of the opinion the national team also benefits the clubs as that there are other means of attaining that such. Moreover, the example of Scotland objective without affecting the right of free- may be noted, where the lack of rules on for- dom of movement. Moreover, the rules are in eign players has plainly not led to a shortage any case only to a very limited extent appro- of players for the national team. 157 priate to ensure a balance between the clubs. The richest clubs are still in a position to afford the best — and thus as a rule the most expensive — foreign stars. At the same time, 157 — It cannot be objected that the national team of Scotland such clubs have the opportunity to engage has had relatively little success for some considerable time, since Scottish club sides have also not achieved any great the best native players, without any compa- successes in the European cup competitions in recent years. No doubt this will change again one day. rable rule setting them limits.

150. I consider, however, in agreement with (a) The applicable rules the national court, that the question is of no consequence for the present case. It is admit- tedly correct that the 1990 UEFA transfer rules laid down that the business relation- ships between the clubs concerned were not to affect the player's sporting activity, in so far as the question of the transfer fee was 149. Let us now turn to the question concerned. 159 That is certainly progress whether the rules on transfers are compatible compared with the 1986 FIFA regulations with Article 48. The preliminary question then in force, according to which the previ- first arises of which rules are to be the sub- ous association's transfer certificate, required ject of examination. If the player's previous for entidement to play, certified that the club and his new one belong to the same question of the transfer fee had been set- association, that association's transfer rules tled. 160 In contrast to those FIFA regula- apply to the transfer. For a transfer within tions, it was thus possible under the UEFA Belgium, for example, the URBSFA rules rules for a player already to play before the thus apply. It is not entirely clear, on the clubs concerned had reached agreement on other hand, which rules were applicable in the amount of the transfer fee. However, that the territory of the Community when the progress is only apparent. Under the UEFA previous club and the new one belonged to rules too a transfer fee was payable. In the different associations. The question appears event that the clubs could not agree on its to have been clarified since the adoption of the 1993 UEFA transfer rules, which, as stated above, provide that the FIFA regula- tions are to apply to international transfers 158 — See point 19 above. in the territory of UEFA. Only for calcula- 159 — See point 15 above. 160 — See point 21 above and the wording of the relevant provi- tion of the transfer fee is it necessary to fall sion of the 1986 FIFA regulations quoted in note 37.

(b) Article 48 as prohibition of discrimination 152. It must therefore be examined whether the transfer rules at issue here lead to nation- als of other Member States being discrimi- nated against in any way.

153. That is denied by URBSFA, on the 151. Under Article 48(2) of the EC Treaty ground that its rules on transfers are applied freedom of movement for workers entails to all players in the same way without distin- the 'abolition of any discrimination based on guishing according to their nationality. nationality between workers of the Member UEFA too denies that its rules on transfers lead to discrimination by reason of national- ity. It submits that those rules are applied 161 — The case of the transfer of Heiko Herrlich from Borussia without distinction to all players who are Mönchengladbach to Borussia D o n m u n d in summer covered by them. The Governments of Italy, 1995 does not contradict that view. That player had admit- tedly to all appearances signed a contract with his new club before the negotiations between the clubs on a possi- ble transfer had even started. The special feature, however, was that the player, according to the allegations of his pre- vious club, was still contractually bound to that club and 163 — See, for example, the judgment in Case 305/87 Commis- had thus committed a breach of contract by signing the sion v Greece [1989] ECR 1461, paragraph 12. new contract. 164 — Judgment in Case C-419/92 Scholz [1994] ECR I-505, 162 — See point 52 above. paragraph 7.

I - 4985

O P I N I O N O F MR L E N Z — CASE C-415/93

I - 4986

UNION ROYALE BELGE DES SOCIÉTÉS DE FOOTBALL ASSOCIATION AND OTHERS v BOSMAN AND OTHERS

relating to the free movement of persons are would have had to pay a transfer fee for him. intended to facilitate the pursuit by Commu- The interplay of the national association's nity citizens of occupational activities of all rules and the rules of the international foot- kinds throughout the Community, and pre- ball federations thus has the consequence clude measures which might place Commu- that a player in France can transfer to nity citizens at a disadvantage when they another French club more easily than wish to pursue an economic activity in the to a club abroad. That too is a breach of territory of another Member State'. 168 Article 48.

168 — Judgment in Case C-370/90 Singh [1992] ECR I-4265, paragraph 16. 169 — See point 32 above. 170 — See point 31 above.

I - 4987

O P I N I O N O F MR L E N Z — CASE C-415/93

value. In his written observations he submit- 160. The third and last factual situation ted that the transfer fee calculated according which might establish a breach of the prohi- to the UEFA rules would in his case have bition of discrimination was not raised until amounted to BFR 14 000 000. At the hearing the hearing. An investigation of the UEFA he even spoke of a good BFR 20 000 000. and FIFA rules in question leads to the con- clusion that in all cases in which a player transfers to a club in another association, a clearance certificate from his previous associ- ation is required.

Some indication that the ing of a 'Commission des Professionels et N o n Amateurs', whose authenticity was not disputed by UEFA. According UEFA rules might have pursued the objec- to the minutes, one of those present was of the opinion tive of making transfers of players to another that the legal position with respect to the rules on foreign players had been clarified by the Court's judgments. The context shows that the person in question assumed that under Article 48 players could simply transfer to other

I - 4988

UNION ROYALE BELGE DES SOCIÉTÉS DE FOOTBALL ASSOCIATION AND OTHERS v BOSMAN AND OTHERS

173 — For the wording, see point 15. 174 — See point 23 above.

I - 4989

OPINION OF MR LENZ — CASE C-415/93

the competent bodies in FIFA 'may' order play in official matches for his new club dur- the previous association to issue the certifi- ing the 60-day period mentioned above'. 176 cate, or substitute its own decision for that certificate. If the previous association does not issue the transfer certificate within 60 days, the new association 'may' issue a provisional certificate. 175 A transfer certifi- cate or a corresponding decision by FIFA is therefore required in all cases. Moreover, a 162. Since the transfer certificate is required player has to rely on his previous associa- only for a transfer to another association, in tion, FIFA or his new association taking the other words — apart from the special case of necessary steps to have the transfer certifi- the associations in the United Kingdom — a cate issued. His previous association is transfer abroad, transfers abroad are thus obliged to issue that certificate, but can how- subject to less favourable rules than transfers ever rely if necessary on an exception which within one and the same association. That is broadly and relatively unclearly worded. difference in treatment may lead to players FIFA and the new association may act them- being deterred from exercising their right to selves. There is no provision that they must freedom of movement. That too can be act in order to make it possible for the player regarded, in accordance with the consider- to play for his new club. ations set out above, as a breach of the pro- hibition of discrimination in Article 48. It is not relevant to that conclusion that the application of the transfer rules in practice leads to such difficulties only in exceptional cases. It suffices that the possibility exists of freedom of movement being restricted by that difference in treatment.

player. That, however, is not a differentiation that provision not only prohibits discrimi- which relates directly or indirectly to nation- nation by reason of nationality but may also ality or which particularly affects players preclude rules applied without distinction who wish to exercise their right of freedom which hinder freedom of movement, the of movement. judgments which have been given on Article 52 must also be taken into account. That is justified firstly on the basis of the consider- ation that both provisions rest on the same foundation, namely Article 3(c) of the EC Treaty. According to that provision, the activities of the Community are to include 'an internal market characterized by the abo- lition, as between Member States, of obsta- cles to the free movement of goods, persons, 164. In the light of what has been said services and capital'. The free movement of above, the opinion could very well be main- persons referred to here is regulated pre- tained that the transfer rules infringe the cisely by Articles 48 and 52, the former arti- prohibition of discrimination in Article 48(2) cle applying to employees and the latter to in one respect or other. The Court would the self-employed. 177 There are therefore have to examine those questions, however, clear parallels between the two provisions, only if Article 48 did no more than establish which lead one to expect them to provide a prohibition of discrimination on grounds identical solutions to certain factual situa- of nationality. I consider that that is not the tions. Secondly, the Court has indeed already case. In my opinion, all restrictions on free- frequently made observations in its case-law dom of movement are prohibited in principle which were aimed both at Article 48 and by Article 48. I shall demonstrate that below, Article 52. For that reason too it is appropri- beginning with the Court's previous case- ate to refer to decisions given on both of law. those articles.

question to be discussed here has already 168. The Thieffry judgment 180 in 1977 con- been clarified with respect to that provision. cerned the freedom of establishment of law- yers. In that case a Belgian advocate had applied for admission to the Bar of the Paris Cour d'Appel. Mr Thieffry held a Belgian diploma which had been recognized by a French university as equivalent to a French 'licence en droit'. He had also passed an examination, in accordance with the French 166. As mentioned above, there are many regulations, by means of which he had judgments in which Article 48 has been obtained a qualifying certificate for the pro- understood as a provision which prohibits fession of advocate. He was refused admis- discrimination by reason of nationality. I sion to the Paris Bar, however, on the ground shall, however, discuss below primarily those that he did not have a French diploma. The cases in which the beginnings of a broader Court of Justice held that there was an understanding of that provision can be unjustified restriction on freedom of estab- found. lishment if a person in Mr Thieffry's situa- tion was refused admission to the legal pro- fession in a Member State solely by reason of the fact that he did not possess a diploma from that Member State. The Court did not discuss whether the French rules were dis- criminatory, but based its reasoning on Arti- cles 5 and 52 of the EC Treaty. 181 It should 167. The first judgment to be mentioned be noted, however, that Advocate General here is in Rutili, 178 a case decided in 1975. Mayras had expressed the opinion that this That decision concerned a prohibition was a case of disguised discrimination. 182 imposed by the French authorities on an Italian national, banning him from residing in specified parts of France. The Court held that such measures restricting the right of residence were permissible as against nation- als of other Member States only in cases where they could also be applied to that State's own nationals. That conclusion is eas- ily derived from Article 48(2). Interestingly, however, the Court said in the judgment that 169. In Kenny, 183 a 1978 judgment which has the questions submitted to it concerned the been referred to in the present proceedings, 'principles of freedom of movement and there are passages which appear to make it equality of treatment'. 179 However, it is clear that in the Court's opinion Article 48 debatable whether the Court intended establishes only a prohibition of discrimi- thereby to state that freedom of movement nation: according to the judgment, disparities was not exhausted by the mere prohibition of discrimination by reason of nationality. 180 — Case 71/76 Thieffry v Conseil de l'Ordre des Avocats à la Cour de Paris [1977] ECR 765. 181 — Ibid., paragraphs 15 to 19. 178 — Case 36/75 Rutili v Minister for the Interior [1975] ECR 182 — Opinion in Case 71/76, [1977] ECR 780, at p. 790. 1219. 183 — Judgment in Case 1/78 Kenny v Insurance Officer [1978] 179 — Ibid., paragraph 7. E C R 1489.

in treatment which result from differences provide services for a Member State to insist between the laws of the Member States are that persons resident in its territory who acceptable 'so long as [those laws] affect all held driving licences issued by another persons subject to them in accordance with Member State satisfied the requirements laid objective criteria and without regard to their down for the first State's own nationals. nationality'. 184 It appears to me, however, Such provisions could be considered to con- doubtful whether the judgment must in fact travene Community law only if their appli- be understood in such a way; if Article cation to the persons in question were to 48 were restricted to the 'principle of non- cause 'such difficulties that those persons discrimination', the question would arise would in fact be hindered in the free exercise why the Court additionally pointed out the of the rights which Articles 48, 52 and 59 of need for the rules in question to be applied the Treaty guarantee them in connection 'in accordance with objective criteria'. with the free movement of persons, freedom of establishment and freedom to provide ser- vices'. 186 That might for instance be the case if a driving test was required which clearly duplicated the tests already taken or if 'exor- bitant charges' were imposed on the persons concerned. 187 170. The judgment given in 1978 in the Choquet case, 185 on the other hand, seems of importance. Those proceedings concerned a French national who lived in Germany and was employed there. Mr Choquet held a French driving licence. The German author- ities none the less brought criminal proceed- The Court thus did not address the question ings against him for driving without a whether the German rules disadvantaged licence, since under the German rules a for- nationals of other Member States. Instead it eigner who lived in Germany for more than assessed those rules according to the princi- one year was obliged to obtain a German ple of proportionality. It is also noteworthy driving licence. At the material time the that the Court referred to Articles 48, 52 and Community had not yet adopted any 59 at the same time, although Mr Choquet measures in that field. was an employee.

be registered with the Paris Bar as a lawyer 172. The action by the Commission against undergoing training. He had stated that he France for failure to fulfil Treaty obligations, wished to retain his chambers in Germany. in which judgment was given in 1986, 193 Mr Klopp's application was rejected by ref- concerned similar facts. It related to French erence to the French provisions that a lawyer provisions which required doctors and den- can have chambers in one place only. tists established in another Member State to cancel their registration in that State if they wished to practise in France as an employee, locum or principal in a practice. However, the Court based its judgment on reasoning which differed from that in Klopp. It stated as a general proposition that all restrictions on freedom of movement for workers, free- dom of establishment and freedom to pro- vide services are compatible with the Treaty The Court noted that it had not been deter- only if they 'are actually justified in view of mined whether the French rules in question the general obligations inherent in the proper were discriminatory, and that the question practice of the professions in question and referred by the national court therefore had apply to nationals and foreigners alike'. 194 to be answered on the basis that that was not The Court's subsequent observations show the case. 189 It went on to say that a rule such that those are indeed two different criteria: as that in force in France meant that a lawyer the Court first found that the rules in ques- established in one Member State could exer- tion were applied more strictly for doctors cise the right to freedom of establishment in from other Member States than for French another Member State only if he abandoned doctors. 195 It then found that the general the establishment he already had. The Court rule prohibiting doctors and dentists estab- held that that was incompatible with Article lished in other Member States from practis- 52, which expressly provides that freedom of ing in France was 'unduly restrictive'. 196 establishment also applies to the setting up of agencies, branches or subsidiaries in another Member State. 190 It acknowledged that Member States had the right 'in the interests of the due administration of justice' to subject the activities of lawyers to certain rules. However, that must not prevent nationals of other Member States 'from exer- cising properly the right of establishment guaranteed them by the Treaty'. 191 In the specific case, the legitimate aims pursued by the French rules — to guarantee sufficient contact with clients and courts and obser- vance of the rules of the profession — could The same reasoning can be found in a be ensured in other ways. 192 1992 judgment in an action for failure to

173. The Court decided quite differently, however, in 1987 in an action by the Com- mission against Belgium for failure to fulfil 174. The 1987 judgment in the Heylens Treaty obligations. 198 That case concerned a case 201 is of interest for the present case not rule under which certain services provided least because it relates to football. Mr Hey- by laboratories were excluded from reim- lens, a Belgian national and the holder of a bursement under the social security scheme Belgian football trainer's diploma, had been if those laboratories were operated by legal engaged as trainer by a French team. Under persons whose members, partners or direc- the French rules a French football trainer's tors were not all natural persons authorized diploma or a foreign diploma recognized by to carry out medical analyses. The Commis- the competent authorities as equivalent was sion submitted that that was in breach of necessary for the practice of that occupation. Article 52. It expressly argued that the In Mr Heylens's case such recognition was restrictions on freedom of establishment refused without material reasons being stated prohibited by Article 52 were not confined for that decision. to discriminatory measures, but also included measures applied without distinc- tion which constituted 'an unjustified con- straint' for nationals of other Member States. ' "

reviewed by a court. 203 The Court stated in 176. The Stanton judgment, 207 also from this connection that free access to employ- 1988, concerned a Belgian provision under ment is a 'fundamental right which the which self-employed persons could be Treaty confers individually on each worker exempted under certain circumstances from in the Community'. 204 paying contributions to the Belgian social security scheme for self-employed persons. One of those conditions was that they pur- sued by way of principal occupation another occupational activity. The Belgian authorities took the view that that had to be an occupa- tion covered by a Belgian social security 175. The Gullung judgment, 2 0 5 delivered in scheme. Mr Stanton was employed in the 1988, concerned a lawyer of French and Ger- United Kingdom and paid the corresponding man nationality, who was a Rechtsanwalt in contributions there. Germany and relied on the basic freedoms guaranteed by the EC Treaty in order to be able to practice his profession in France, after he had previously been refused admis- sion to practice as a lawyer in France because of lack of good character. The Court considered that the Belgian provi- sion was not of a discriminatory nature. 208 However, citing Klopp, it observed that free- dom of establishment included the right to maintain more than one place of work within the Community. It applied that The Court held that freedom of establish- reasoning to the case of a person employed ment under the second paragraph of Article in one Member State who wished to work in 52 includes the right to take up and pursue addition in another Member State in a self- activities as a self-employed person 'under employed capacity. In the Court's opinion, the conditions laid down for its own nation- the provisions of the Treaty relating to the als by the law of the country where such free movement of persons are intended to establishment is effected'. The requirement 'facilitate the pursuit by Community citizens for lawyers to be admitted was therefore of occupational activities of all kinds lawful under Community law, provided that throughout the Community'. They therefore such admission was open to nationals of all 'preclude national legislation which might Member States 'without discrimination'. At place Community citizens at a disadvantage the same time, however, the Court pointed when they wish to extend their activities out that that requirement pursued 'an objec- beyond the territory of a single Member tive worthy of protection'. 206 A further State'. Since the Belgian provision placed requirement thus seems to appear in addition persons who pursued occupational activities to the prohibition of discrimination. outside Belgium at a disadvantage, it was incompatible with Articles 48 and 52. 209 It is

noteworthy, a p a r t from the fact that the public vocational training establishments in Court did not focus on possible discrimi- Ireland an adequate knowledge of Irish was nation, that Article 48 and Article 52 were required. The Court found that the Treaty treated in the same way. did not prohibit the adoption by a Member State of a policy for the protection and pro- motion of its language. However, free move- ment of workers must not be encroached on thereby. The corresponding measures 'must The Court reached the same decision in the not in any circumstances be disproportionate Wolf case, 210 in which judgment was given in relation to the aim pursued and the man- on the same day. ner in which they are applied must not bring about discrimination against nationals of other Member States'. 214 Here too the Court thus apparently examined not only whether 177. The Daily Mail judgment 211 of the provision in question discriminated 1988 related to the question whether a com- against nationals of other Member States, but pany established in one Member State can also whether that provision complied with transfer its central management and control the principle of proportionality. to another Member State without changing its identity. The Court stated that the provi- sions on freedom of establishment were directed 'mainly to ensuring that foreign nationals and companies are treated in the host Member State in the same way as nationals of that State', but also prohibited the State of origin from 'hindering the estab- 179. The Corsica Ferries France judg- lishment in another Member State' of its ment, 2 1 5 also of 1989, relates to freedom to nationals. The rights guaranteed by Article provide services, and therefore need not be 52 et seq. would be 'rendered meaningless if considered in detail here. The following pas- the Member State of origin could prohibit sage in that judgment is, however, of interest undertakings from leaving in order to estab- in the present context: lish themselves in another Member State'. 212 In the particular case, however, the Court considered that there was no infringement.

181. The 1991 judgment in Vlassopoulou 220 217 once again concerned the freedom of estab- 180. The Biehl judgment, delivered in 1990, concerned the Luxembourg provisions lishment of lawyers. A Greek lawyer who on the repayment of excess income tax was a member of the Athens Bar had deducted. Such a repayment could be made obtained a doctorate in law from the Univer- only if the taxpayer was resident in Luxem- sity of Tübingen (Germany) and had worked bourg for the whole of the tax year. Mr with a firm of German lawyers since 1983. In Biehl, a German national, had been 1988 she applied for admission as a lawyer employed in Luxembourg from 1973; on (Rechtsanwältin) in Germany. Her applica- 1 November 1983 he returned to Germany. tion was refused on the ground that she did The Luxembourg revenue authorities refused not fulfil the conditions required under Ger- to repay him the amount of tax deducted in man law. the first ten months of 1983, which exceeded his total liability to tax. The Court adopted the view that the criterion of permanent res- idence in the national territory applied irre- spective of nationality, but there was never- theless a risk that it would work in particular against nationals of other Member States, The Court stated that 'even if applied with- since it was often such persons who left the out any discrimination on the basis of country or took up residence there in the nationality, national requirements concerning course of the year. 218 qualifications may have the effect of hinder- ing nationals of the other Member States in the exercise of their right of establishment guaranteed to them by Article 52 of the EEC Treaty'. That could be the case if the knowl- edge and qualifications acquired in another Member State were not taken into account. 221 Such knowledge and qualifica- That judgment has rightly been criticized on tions therefore have to be assessed by the the ground that the reasoning adopted by the Member State in question. If it proves that Court, based on covert discrimination, they correspond only partially to the would not have been adequate if the case had requirements of the Member State in ques- concerned not a German but a Luxemburger. tion, 'the host Member State is entitled to Yet the exercise of the right to freedom of require the person concerned to show that movement would have been subjected to

he has acquired the knowledge and qualifica- auditor had the status of employee, a self- tions which are lacking'. 222 employed person or a provider of servic- es. 224 It then recalled its previous case-law in those fields and on that basis reached the conclusion that 'Articles 48 and 59 of the Treaty are intended to facilitate the pursuit by Community nationals of occupational activities of all kinds throughout the Com- munity' and preclude national legislation 182. The 1992 judgment in Ramrath 223 con- which might place them at a disadvantage cerned the regulation of the profession of when they wish to extend their activities to auditor in Luxembourg. The provisions in another Member State. 225 The special nature force required an auditor inter alia to have a of certain activities might, however, require professional establishment in Luxembourg the imposition of specific conditions. 'Never- and not to carry on any activity likely to theless, as one of the fundamental principles impair his professional independence. Mr of the Treaty, freedom of movement of per- Ramrath had been granted authorization to sons may be restricted only by rules which practice as an auditor in Luxembourg in are justified in the general interest and are 1985. He was employed at the time by a firm applied to all persons and undertakings pur- established in Luxembourg, which likewise suing those activities in the territory of the had such authorization. In 1988 he informed State in question', and only in so far as the the authorities that he was now employed by general interest is not already safeguarded by an auditing company authorized to practise the rules of the Member State of origin. 226 in Germany and that his professional estab- Those requirements must in addition 'be lishment was in Germany; that employer objectively justified'. 227 It must therefore be would, however, exert no influence on him shown that there are 'compelling reasons in when he carried out audits in Luxembourg. the general interest which justify restrictions The Luxembourg firm stated that when Mr on freedom of movement' and that the Ramrath worked in Luxembourg he was still desired result 'cannot be achieved by less to be regarded as its employee. The Luxem- restrictive rules'. 228 bourg authorities nevertheless withdrew Mr Ramrath's authorization.

183. Mr Bosman refers to the Singh 230 judg- ment, also delivered in 1992. That decision concerned the disadvantages caused to the spouse of a national of a Member State by reason of the fact that the latter had made use of her right to freedom of movement. In the judgment the Court confirmed the find- ing in Stanton that freedom of movement 'Articles 48 and 52 therefore preclude all precludes national provisions which might national provisions on the conditions for the place citizens at a disadvantage when they use of a further academic degree obtained in wish to extend their economic activity to the another Member State which, although territory of another Member State. Apart applicable without discrimination on the from that, the case is in my opinion of no ground of nationality, are nevertheless liable great significance for the examination to be to hinder or make less attractive the exercise conducted in the present case. of the fundamental freedoms guaranteed by the EEC Treaty by Community citizens including the nationals of the Member State which has enacted the provisions. It would be different only if such provisions pursued a legitimate aim which was compatible with the EEC Treaty and justified by compelling 184. More significant, on the other hand, is reasons of the general interest (see the judg- the 1993 judgment in Kraus. 2 3 1That case ment in Case 71/76 Thieffry [1977] ECR concerned a German national who had 765, paragraphs 12 and 15). In such a case, obtained an academic degree in Great Britain however, the application of the national pro- after completing a course of postgraduate visions in question would in addition have to study there. Under the relevant German be appropriate for guaranteeing the realisa- rules, however, he could use that degree in tion of the objective pursued, and could not Germany only if he was granted permission go beyond what was necessary for achieving to do so. An infringement of those rules that objective (see the judgment in Case could lead to the imposition of a fine or C-106/91 Ramrath [1992] ECR I-3351, para- imprisonment for up to one year. graph 29 et seq.).' 234

187. The Klopp judgment is much clearer still. Here too the Court started from the assumption that there was no discrimination. The Court's examination basically came 186. The Thieffry judgment already points down to the question whether there was a in that direction, given that the Court did restriction of freedom of establishment and not focus there on the question of possible whether that could be justified by certain discrimination. 235 It could be maintained, superior considerations. 239 The Court used a however, that that was basically a case of corresponding approach in Stanton and (indirect) discrimination, since French Wolf. The answer to the question whether nationals were much more likely to be able the restriction on freedom of movement was to produce a French diploma than nationals justified was very concise. The Court merely of other Member States were. The Choquet observed that the persons in question were judgment already, however, can scarcely be already insured in other Member States explained in that way. 236 The Court's state- and that the Belgian social security scheme ment in that judgment that there could be a breach of Articles 48, 52 and 59 if a Member State imposed 'exorbitant charges' for exam- 237 — For another view, however, see José Carlos de Carvalho ining whether a driving licence obtained Moitinho de Almeida, 'La Ubre circulation des travailleurs dans la jurisprudence de la Cour de justice (art. abroad satisfied the requirements laid down 48 CEE/art. 28 E E E ) ' ,in: Olivier Jacot-Guillarmod (ed.), Accord EEE, Zürich 1992, p. 179, at p. 188, according to in that Member State could admittedly still which such rules do not discriminate either directly or indirectly. 238 — As rightly noted by José Carlos Moitinho de Almeida, 'Les entraves non discriminatoires à la Ubre circulation des personnes; leur compatibilité avec les articles 48 et 52 du 235 — See, for instance, Ernst Steindorff, 'Reichweite der Nieder- traité CE', in: Festskrift til Ole Due, Copenhagen 1994, lassungsfreiheit', Europarecht 1988, p. 19, at p. 24. p. 241, at p. 247. 236 — See Albert Bleckmann, 'Die Personenverkehrsfreiheit im 239 — See Wulf-Henning Roth, 'Grundlagen des gemeinsamen Recht der EG', Deutsches Verwaltungsblatt 1986, p. 69, at europäischen Versicherungsmarktes', Rabefs Zeitschrift p. 71. 54 (1990), p. 63, at p. 81.

therefore afforded them no additional social 188. The line applied in Klopp is continued protection. 240 and clarified in Commission v France and Commission v Luxembourg. 2 4 3In those cases the Court examines whether a restric- tion on freedom of movement (and freedom to provide services) is justified and propor- tionate. The Gullung judgment is less clear in this respect, but there too it is observed that the restriction in question serves 'an objec- tive worthy of protection'. In Groener not only the existence of an objective worthy of protection, but also the question of propor- It need not be decided whether those judg- tionality is examined. ments could also have been reached on the basis of a — broadly interpreted — prohibi- tion of discrimination. 241 What is decisive is that in the above cases the Court precisely did not choose that path. That the approach 189. That the right of freedom of movement chosen by the Court is justified can more- cannot be limited to the principle of treat- over be seen if one changes the facts which ment like a national of the host State is also gave rise to the Stanton case. If a Belgian shown by the Daily Mail judgment, from national who worked on a self-employed which it follows that Article 52 can also be basis in Belgium had also taken up employed infringed by the State of origin and that activity in another Member State, he would restrictions imposed by that State on the have found himself, in accordance with the right of establishment in another Member provisions at issue, in the same position as State must therefore be assessed by reference Mr Stanton. He would have been placed at a to that provision. disadvantage because he had made use of his right to freedom of movement. That case, however, can be solved with the aid of the prohibition of discrimination only if the view is taken that it suffices that citizens who exercise that right are placed at a disadvan- 190. All doubt as to whether the require- tage compared with those who do not. Such ments of Article 48 go beyond the principle an interpretation in my opinion corresponds of treatment like a national of the host State to the spirit of Article 48(2). 242 It is admit- has in my opinion been removed by the tedly evident that it is then no longer dis- Ramrath and Kraus judgments. In those crimination on grounds of nationality which decisions the Court stated clearly that is being focused on. restrictions on freedom of movement are compatible with Community law only if they are justified by 'compelling reasons of the general interest' and comply with the 240 — Stanton, cited above (note 207), paragraph 15; Wolf, cited principle of proportionality. In view of those above (note 210), paragraph 15. 241 — See, for example, Ulrich Everting, 'Das Niederlassungsre- unambiguous statements by the Court, it is cht in der Europäischen Gemeinschaft', Der Betrieb 1990, p. 1853, at p. 1855 (on the Klopp judgment); Andreas irrelevant whether the provisions examined Nachbaur, 'Art. 52 EWGV — Mehr als nur ein Dis- kriminierungsverbot?', Europäische Zeitschrift für Wirtschaftsrecht 1991, p. 470 at p. 471. 242 — See, for example, the cases of discrimination discussed in point 155 et seq. above. 243 — See point 172 above.

191. As I have already stated, however, there is in the case-law of the Court to date a large number of judgments which focus, when examining Article 48, on the presence of dis- crimination on the ground of nationality. Those judgments as a rule do not deal with the question whether the content of Article 48 might extend beyond the prohibition of 192. From the coexistence of those two cur- such discrimination. If I am not mistaken, rents in the case-law, it can therefore only be among those decisions there are only two in concluded, in my opinion, that the Court which the Court had to consider that ques- does not consider that there is necessarily a tion. Those are firstly the Kenny judgment contradiction between them. That coexist- and secondly the 1987 judgment in the ence can easily be explained. Ernst Steindorff action for failure to fulfil obligations, Com- has said with reference to the case-law on mission v Belgium. I have already explained Article 52 that the predominant interpreta- why the former judgment in my opinion tion of that provision as a prohibition of dis- does not permit of any very far-reaching crimination was 'necessitated by the prob- conclusions. 245 The latter judgment on Arti- lems to be decided'. 'Those problems could cle 52, on the other hand, could indeed be be overcome by means of a prohibition of understood as a rejection of the view put for- discrimination.' Other, different situations ward here. The Commission had after all might, however, require a new approach. 247 I consider that view both appropriate and con- vincing.

194. The wording of the provision itself indicates that the content of Article (2) Systematic context 48 extends beyond the mere prohibition of discrimination on grounds of nationality. Under paragraph 1 of Article 48, freedom of movement for workers is to be created by the end of the transitional period. Under paragraph 2 of Article 48, that is to 'entail' 196. From a systematic point of view, an the prohibition of any discrimination based interpretation of Article 48 which goes on nationality. There is thus nothing to pre- beyond the traditional view suggests itself vent Article 48(2) being interpreted as a part simply from the fact that that provision is of a more comprehensive regulation of free- dom of movement. 248 The special reference to discrimination in paragraph 2 could be 249 — See Brigitte Knobbe-Keuk, op. cit. (note 219), explained by that being the 'most evident p. 2574 (also with reference to the second paragraph of Article 52). 250 — Albert Bleckmann, op. cit. (note 236), p. 72. 251 — An exception to that is admittedly Article 48(3)(c), which refers to 'the provisions governing the employment of 248 — Ernst Steindorff, op. cit. (note 235), p. 21 (on the second nationals of that State laid down by law, regulation or paragraph of Article 52). administrative action'.

I - 5004

UNION ROYALE BELGE DES SOCIÉTÉS DE FOOTBALL ASSOCIATION AND OTHERS v BOSMAN AND OTHERS

based on Article 3(c), which imposes in gen- if it applies without distinction to national eral terms the 'abolition ... of obstacles' to providers of services and to those of other the free movement of goods, persons, ser- Member States, when it is liable to prohibit vices and capital. If Article 48 were really or otherwise impede the activities of a pro- nothing more than a prohibition of discrimi- vider of services'. Such restrictions are there- nation by reason of nationality, that provi- fore lawful only if they are 'justified by sion — or at least Article 48(2) — would no imperative reasons relating to the public longer have been necessary, in view of Arti- interest'. They must not 'exceed what is nec- cle 6 of the EC Treaty, in which all such dis- essary to attain those objectives'. 256 crimination is prohibited generally.

I - 5005

O P I N I O N O F MR LENZ — CASE C-415/93

discrimination. 257 For that reason alone, one them, freedom to provide services, was to be is inclined to apply the development which interpreted uniformly. has taken place in the recent case-law of the Court with respect to the interpretation of Article 59 to Article 48 as well.

I - 5006

UNION ROYALE BELGE DES SOCIÉTÉS DE FOOTBALL ASSOCIATION AND OTHERS v BOSMAN AND OTHERS

pursued in another Member State. What does remove an inconsistency in the previous that mean, for example, with respect to a case-law: if one adopts the position that the contract by which a club engages a player for content of the freedom of movement pro- a few matches? 261 It is debatable whether in tected by Article 48 consists only of the pro- such a case it would not be better to speak of hibition of discrimination spelt out in that a provision of services. The transfer rules provision, then logically only the grounds of currently in force admittedly ensure for the public policy, public security and public most part by means of specified time-limits health mentioned in Article 48(3) could be that contracts with players have a term of at adduced as justification of such discrimi- least a whole season, or at any rate half a sea- nation. The Court has, however, held on sev- son. However, that is not necessary, as the eral occasions already that in the case of example of other sports shows. 262 indirect discrimination other Objective grounds' can also justify a restriction on freedom of movement. 264 That the examina- tion in such a case is the same examination as that employed in the context of Article 59 with respect to non-discriminatory restrictions on freedom to provide services follows expressly from the judgments The Court has therefore quite rightly left it handed down in 1992 in Bachmann 265 and open in a number of cases whether Article Commission v Belgium. 266 The opinion put 48 or Article 59, for example, was applicable forward here would make it possible to do in the particular case. It did that in the Wal- away with that contradiction. rave and Dona cases, which are of special interest in the present case. 263 The Court thereby clearly indicated that those two pro- visions employ comparable criteria and that their application led to the same result in the specific case. That confirms my opinion set (3) Article 48 as a fundamental right out above.

right which the Treaty confers individually application of national provisions 'restricting on each worker in the Community'. 267 Any or prohibiting certain selling arrangements', restriction of the right to freedom of move- 'so long as those provisions apply to all rel- ment infringes a fundamental right of the evant traders operating within the national person concerned and therefore requires jus- territory and so long as they affect in the tification. Since it is a fundamental right same manner, in law and in fact, the market- which is being infringed, I cannot see, any ing of domestic products and of those from more than Advocate General Jacobs in his other Member States'. 269 That decision has Opinion in the Konstantinidis case, how the since been confirmed on several occa- non-discriminatory character of the measure sions. 270 It follows from those judgments could mean that it did not fall within the that they apply only to rules on selling scope of Article 48. 268 For that reason too, I arrangements. National provisions which am therefore of the opinion that Article relate to the presentation of goods and the 48 must also apply to non-discriminatory like are still to be assessed by reference to restrictions on freedom of movement. That Article 30, even if they are applied to domes- must at least be the case when the restriction tic and imported goods without distinc- relates to access to the employment market in tion. 271 Nevertheless, the scope of Article other Member States. 30 was thereby restricted by the Court. The question therefore arises whether in view of that an extension of the scope of Article 48 appears appropriate. Several of those tak- ing part in the present proceedings have referred to that point of view.

chosen by the Court represents the best In the Schindler judgment in 1994 the Court solution. It must not be forgotten, however, confirmed once again that non- that the initial situation in the field of Article discriminatory measures can fall within Arti- 48 is altogether different, since here there is cle 59. 274 An express confrontation with the as yet no settled case-law to the effect that later case-law on Article 30 can be found in even measures which apply without distinc- the recent judgment in Alpine Invest- tion are caught by that provision. The ments. 275 That case concerned a Netherlands extended interpretation of that provision measure prohibiting a company which spe- which I propose does not mean that all non- cialized in commodities futures from con- tacting potential clients in the Netherlands discriminatory measures which actually or and abroad by telephone without their prior potentially restrict freedom of movement consent in writing. The question arose must necessarily be subjected to the same whether that prohibition of 'cold calling' strict conditions for justification. If one infringed Article 59. The Netherlands and wished to adduce the case-law on Article the United Kingdom had argued, citing the 30 by analogy in this respect, one might con- Keck and Mithouard judgment, that the pro- sider drawing a distinction between measures hibition did not fall within the scope of Arti- which regulate access to occupational activity cle 59, since it was generally applicable and and measures which are directed more to the non-discriminatory and neither its object nor exercise of that activity. 273 effect was to create an advantage for the national market.

That reasoning can be applied to the field of Article 48. It must be noted in particular that the transfer rules at issue in the present case directly affect access to the employment mar- 208. I have already stated my position on ket in other Member States. 277 the significance for the present case of the principle of subsidiarity. 281

(ee) Application to the transfer rules 207. A further argument against an extended interpretation of Article 48 and Article 52 is based on the case-law on Article 34, which prohibits quantitative restrictions on exports and measures having equivalent effect. The Court has of course held that Article 34 con- cerns measures which 'have as their specific 209. Even if one were to assume that the object or effect the restriction of patterns of transfer rules were applied throughout the exports' and thereby provide a 'particular Community without distinction to transfers advantage' for national production. 278 If one within a Member State and to transfers to assumed that measures of a Member State another Member State, it would still be a fact applicable without distinction which made it that they restrict freedom of movement: con- difficult for its own nationals or third parties trary to what Article 48 requires, a profes- to exercise their right to freedom of move- sional football player cannot under those ment fell within Article 48, one would, how- rules move freely to another Member State ever, in the view of many writers, find one- in order to work for another club there. self contradicted by that case-law. 279 Even if Rather it is necessary in every case for the that were the case, one should not in my transfer fee due to be paid to his former club. As I have already explained, the fact that

under the current UEFA and FIFA rules player can transfer abroad only if the new entitlement to play for the new club is no club (or the player himself) is in a position to longer to depend on the transfer fee being pay the transfer fee demanded. If that is not settled makes no difference to that circum- the case, the player cannot move abroad. stance. 282 There is thus a clear restriction That is a direct restriction on access to the here on the right to freedom of movement, employment market. Since the transfer fee is which is caught by Article 48. That those demanded by the previous club and the hin- rules also restrict the possibility of changing drance to the transfer — even if it is also clubs freely within one and the same Mem- required by the rules of the international ber State can make no difference, on the view federations — thus originates in the sphere taken here. of the Member State of origin, the situation can very well be compared with that in the Alpine Investments case.

I-5011

O P I N I O N O F MR L E N Z — CASE C-415/93

Those considerations are of no significance before the Court. The Commission admit- for the present case. The transfer rules tedly initially left the point open in its writ- indeed do not 'directly' force the player to ten observations. At the hearing before the perform 'forced or compulsory labour'. The Court, however, referring to its observations provisions of Community law, however, are in Case C-340/90, in which it had already directed at quite different objectives. Article put forward that view, it indicated that it 48 of the EC Treaty protects generally the shared the opinion put forward here. right to trans-frontier freedom of movement in the Community. Moreover, the European Human Rights Commission's reasoning that an infringement of rights could be excluded because the person concerned had by choos- ing that occupation accepted any restrictions 213. Most of the other participants in the which might be bound up therewith seems proceedings, who consider that Article to me to be altogether questionable. Much 48 cannot apply to non-discriminatory more convincing is the decision handed obstacles to freedom of movement, also put down in 1979 on the basis of German law by forward the view that the rules on transfers the Landesarbeitsgericht (Higher Labour must in any event be regarded as justified on Court) Berlin in a comparable case. The the basis of various considerations. 286 Those Landesarbeitsgericht adopted the position possible grounds of justification must now that the transfer rules restricted the free be examined. choice of place of employment and therefore infringed Article 12 of the Grundgesetz (Basic Law). In the Landesarbeitsgerichts's opinion it was not permissible even for pri- vate agreements to conflict with that provi- sion, with the result that any acceptance of (ff) Possible grounds of justification those rules by the player was irrelevant. 285

As stated above, in the Walrave and Dona 216. In this connection it appears appropri- judgments the Court spoke in this context of ate to address an argument of principle non-economic reasons relating exclusively to which is used in justification of those and sport. 287 From the case-law on Article 30 on other rules. It is argued that sports associa- the one hand and Article 59 on the other tions can rely on the right to freedom of hand, however, it follows that restrictions association, and that that right may clash which are caught by those provisions may be with the individual sportsman's right to free- justified not only by reasons of a non- dom of movement and must therefore be

account thereby. One must therefore agree with the view that only an 'interest of the association which is of paramount impor- tance' could justify a restriction on freedom of movement. 293 Such interests can, if they 215. The formulation chosen in Walrave and arise, be subsumed in my opinion under the Donà thus presumably meant something concept of imperative reasons in the general else. In my opinion the Court is referring in interest. those judgments to rules which are of an exclusively sporting nature and are therefore not covered by Community law.

I-5013

OPINION OF MR LENZ — CASE C-415/93

transfer rules is also important with respect becoming even richer and the less well-off to the provisions on competition, and has even poorer. been discussed by the parties in that context. In so far as necessary for the examination of the present issue, I shall therefore also address here the arguments which have been put forward on Articles 85 and 86.

I - 5014

UNION ROYALE BELGE DES SOCIÉTÉS DE FOOTBALL ASSOCIATION AND OTHERS v BOSMAN AND OTHERS

amateur clubs in which young people and As I have stated above, 294 there is thus no adults are given an opportunity for sporting need to clarify in the present proceedings activity. The importance for society as such whether it is compatible with Community of the availability of a sensible leisure law that a transfer fee is payable on the occupation needs no further explanation. transfer of an amateur player to a profes- If the transfer rules were necessary to sional club. The present question is thus con- guarantee the survival of those amateur fined to professional football. It cannot be clubs, that would without doubt be an seen what effect the answer to the question imperative reason in the general interest, of the lawfulness of the rules on transfers in relevant in the context of Article 48. that field could have on amateur clubs.

I-5015

OPINION OF MR LENZ — CASE C-415/93

I - 5016

UNION ROYALE BELGE DES SOCIÉTÉS DE FOOTBALL ASSOCIATION AND OTHERS v BOSMAN AND OTHERS

money for a new player is indeed no great any more on this possibility. Secondly, it obstacle for a wealthy club or a club with a would be conceivable to distribute the clubs' wealthy patron. That is emphatically shown receipts among the clubs. Specifically, that by the examples of AC Milan and Blackburn means that part of the income obtained by a Rovers. 297 club from the sale of tickets for its home matches is distributed to the other clubs. Similarly, the income received for awarding the rights to transmit matches on television, for instance, could be divided up between all the clubs.

I-5017

O P I N I O N O F MR L E N Z — CASE C-415/93

other markets. It is likewise correct that the led by considerations other than purely economic success of a league depends not sporting or economic ones. It therefore is least on the existence of a certain balance indeed necessary, in my opinion, to ensure between its clubs. If the league is dominated by means of specific measures that a certain by one overmighty club, experience shows balance is preserved between the clubs. One that lack of interest will spread. possibility is the system of transfer payments currently in force. Another possibility is the redistribution of a proportion of income.

298 — See, for example, Stefan Késenne, 'De economie van de sport. Een overzichtsbijdrage', Economisch en Sociaal Tijd- schrift 1993, p. 359, at p. 376. 299 — J. Cairns, N . Jennett and P. J. Sloane, T h e Economics of Professional Team Sports: A Survey of Theory and Evi- dence', [1986] Journal of Economic Studies, p. 3, put for- Mr Bosman has admittedly pointed out that ward the view (citing Professor Noll) that the following there are those who consider that the neces- solution would be reasonable: the home club receives 50% and the away club 2 5 % of the receipts; the remaining 25% sary balance results as it were automatically, goes to the association for distribution among all the clubs in the league. Also of interest in this connection are the since by reason of the facts described above observations by Professor R. Noll, submitted by him in no club can be interested in achieving an July 1992 in the case of McNeil v NFL in the District Court of Minnesota, 4th Division, of which Mr Bosman overwhelming superiority in its league. has supplied a transcript. According to those observations, at the material rime in the USA 60% of income received in Experience shows, however, that club man- American football (more than in any other sport) is dis- tributed. In Professor Noll's opinion, that proportion was agements do not always calculate in that too large, since it reduced the incentive to perform (op. way, but may at times allow themselves to be cit., columns 2654 ff.).

I-5018

UNION ROYALE BELGE DES SOCIÉTÉS DE FOOTBALL ASSOCIATION AND OTHERS v BOSMAN AND OTHERS

230. It seems to me that that is not a matter of chance. The associations too can scarcely 231. While that system serves to cover the dispute that that possibility is an appropriate expenditure of UEFA and thus only indi- and reasonable alternative. The best evidence rectly — by means of corresponding grants for that is the circumstance that correspond- by UEFA to certain associations or clubs 302 ing models are already in use in professional — leads to a redistribution of income, the football today. In the German cup compe- case is different with the 'UEFA Champions tition, for example, the two clubs involved League'. That competition, which took the each to my knowledge receive half of the place of the earlier European Champions' receipts remaining after deduction of the Cup, was introduced by UEFA in 1992. A share due to the DFB. The income from UEFA document produced to the Court by awarding the rights of television and radio Mr Bosman provides information on the broadcasts of matches is distributed by the purpose and organization of that compe- DFB among the clubs according to a speci- tition. The objective is stated to be the pro- fied formula. 300 The position is presumably motion of the interests of football. It is spe- much the same in the associations of the cifically noted that the profit is not only to other Member States. be for the benefit of the clubs taking part, but all the associations are to receive a share of it.

A redistribution of income also takes place at UEFA level. Under Article 18 of the UEFA A balance of the 1992/93 season makes that statutes (1990 edition), UEFA is entitled to a clear. According to that, the eight clubs share of the receipts from the competitions it which took part in the competition each kept organizes and from certain international matches. A good example is the UEFA Cup rules for the 1992/93 season, which have 301 — See Articles 28 and 21 of the rules. 302 — One may mention, for example, the support given by UEFA to certain associations in eastern Europe and the former Soviet Union, enabling the countries concerned to 300 — See on this point Paragraph 3(5) of the Lizenzspielerstatut take part in the qualifying matches for the European foot- of the DFB. ball championship.

the receipts from the sale of tickets for their ical nature and thus not such as to justify a home matches. In addition to that, the com- continued restriction on freedom of move- petition produced an income of 70 million ment resulting from the transfer system. Swiss francs from the marketing of television and advertising rights. That amount was divided up as follows. The participating clubs received SFR 38 million (54%). A fur- ther SFR 12 million (18%) was distributed to all the clubs which had been eliminated in the first two rounds of the three UEFA com- petitions for club teams. SFR 5.8 million (8%) was distributed between the 42 mem- 233. Finally, it must be observed that a ber associations of UEFA. The remaining redistribution of a part of income appears SFR 14 million (20%) went to UEFA, to be substantially more suitable for attaining the invested for the benefit of football, in partic- desired purpose than the current system of ular for the promotion of youth and wom- transfer fees. It permits the clubs concerned en's football. to budget on a considerably more reliable basis. If a club can reckon with a certain basic amount which it will receive in any case, then solidarity between clubs is better served than by the possibility of receiving a large sum of money for one of the club's own players. As Mr Bosman has rightly sub- mitted, the discovery of a gifted player who can be transferred to a big club for good money is very often largely a matter of chance. Yet the prosperity of football depends not only on the welfare of such a club, but also on all the other small clubs being able to survive. That, however, is not guaranteed by the present rules on transfers. 232. The example of the Champions League in particular clearly demonstrates, in my opinion, that the clubs and associations con- cerned have acknowledged and accepted in principle the possibility of promoting their own interests and those of football in general by redistributing a proportion of income. I therefore see no unsurmountable obstacles to prevent that method also being introduced at 234. In so far as the rules on transfers pursue national level or at the level of the relevant the objective of ensuring the economic and association. By designing the system in an sporting equilibrium of the clubs, there is appropriate way it would be possible to thus at least one alternative by means of avoid the incentive to perform well being which that objective can be pursued just as reduced excessively and the smaller clubs well and which does not adversely affect becoming the rich clubs' boarders. I cannot players' freedom of movement. The transfer see any negative effects on the individual rules are thus not indispensable for attaining clubs' self-esteem. Even if there were such that objective, and thus do not comply with effects, they would be purely of a psycholog- the principle of proportionality.

A second argument against regarding trans- fer fees as a reimbursement of the training costs which have been incurred is the fact that such fees — and in many cases extraor- 236. However often that view has been dinarily large sums — are demanded even repeated in the course of these proceedings, when experienced professional players it still remains unconvincing. change clubs. Here there can no longer be any question of 'training' and reimbursement of the expense of such training. N o r does it make any difference that in such cases it is often 'compensation for development' (not compensation for training) which is spoken of. Any reasonable club will certainly pro- 237. The transfer fees cannot be regarded as vide its players with all the development nec- compensation for possible costs of training, essary. But that is expenditure which is in the if only for the simple reason that their club's own interest and which the player rec- amount is linked not to those costs but to ompenses with his performance. It is not evi- the player's earnings. N o r can it seriously be dent why such a club should be entitled to argued that a player, for example, who is claim a transfer fee on that basis. The regu- transferred for a fee of one million E C U lations of the French and Spanish associa- caused his previous club to incur training tions have, quite rightly in my opinion, costs amounting to that vast sum. A good drawn the conclusion that — at least after a demonstration that the argument put for- specified moment in time — no transfer fees ward by the associations is untenable can be can be demanded any more. 304 found in the DFB transfer rule, described above, for the transfer of an amateur player to a professional club. As we have seen, 303 — See point 29 above. under that rule a first division club had to 304 — See point 31 et seq. above.

239. That does not mean, however, that a demand for a transfer fee for a player would, following the view I have put forward, have to be regarded as unlawful in every case. The argument that a club should be compensated for the training work it has done, and that the big, rich clubs should not be enabled to enjoy the fruits of that work without making any contribution of their own, does indeed in my opinion have some weight. For that reason it might be considered whether appropriate transfer rules for professional footballers might not be acceptable. Mr Bos- man himself concedes that such transfer rules might be reasonable as regards transfers of amateur players to professional clubs. That The transfer rules at issue in the present case question need not be discussed further in the do not meet those requirements, or at best present proceedings, which concern only meet them in part. Moreover, it is not certain changes of clubs by professional players. The that even such a system of transfer rules Commission, however, suggested quite gen- could not also be countered by Mr Bosman's erally that a reasonable transfer fee may be argument that the objectives pursued by it justified. could also be attained by a system of redis- tribution of a proportion of income, without the players' right to freedom of movement having to be restricted for that purpose. The associations have not submitted anything which might refute that objection. It should be noted, moreover, that the above- mentioned DFB rules on the transfer of ama- teur players to professional clubs, for Such rules would in my opinion have to instance, appear to follow basically similar comply with two requirements. First, the considerations with their differing standard transfer fee would actually have to be limited amounts.

243. The argument that the payment of transfer fees must be permitted in order to compensate clubs for the amounts they themselves have had to spend on transfer fees when engaging players requires no fur- ther discussion: that argument contains a 241. UEFA has submitted that the payment petitio principii. So does the argument that of transfer fees enables and even encourages the purpose of the transfer fee is to compen- the clubs to search for talented players, an sate the loss which the club incurs because of activity which is vital for football. Even if the player's departure: that presupposes pre- that is the case, I do not see why it should be cisely that a player can be regarded as a sort necessary for that purpose to make the trans- of merchandise for the replacement of which fer of players depend on the payment of a a price is to be paid. Such an attitude may transfer fee. The possibility, already referred correspond to today's reality, as character- to several times, of redistributing a share of ized by the transfer rules, in which the 'buy- income would also give clubs the financial ing' and 'selling' of players is indeed spoken means for the discovery and training of tal- of. That reality must not blind us to the fact ented young players. Such a system of redis- that that is an attitude which has no legal tribution can also very well be designed in basis and is not compatible with the right to such a way as to allow incentives to be main- freedom of movement. tained for seeking out talent and providing good training. 305

that (economic) purpose, it would in any sional footballer whose contract has expired event not be such as to justify the conse- and who is a national of a Member State to a quent restriction on freedom of movement, club in another Member State depend on the since no interest of the clubs deserving of payment of a transfer fee. It will, on the legal protection can be discerned in their other hand, be open to associations in non- paying lower salaries than would be payable member countries to maintain those rules. in normal circumstances in the absence of That would have the result that a club in the the transfer rules and thereby benefiting at Community wishing to engage a player who the expense of the players. previously played for a club in a non- member country would still have to pay a transfer fee — even if that player was a national of one of the Member States of the Community. That could well create difficul- ties.

246. A more important objection is that the continued existence of those rules is neces- sary to guarantee the maintenance of the worldwide organization of football. The 247. Finally, I must mention the fear that the question of the compatibility of those rules abolition of the existing rules on transfers with Community law is of significance for would lead to dramatic changes in football world football only in so far as the associa- or even to an expropriation. 306 The view I tions in the Community are affected. It is have put forward would certainly mean that thus clear that the decision in the present case will apply to those associations only. If the Court follows the opinion I am advanc- 306 — See, for example, Jean-Paul Lacomble, 'De quelques prob- ing, it will no longer be possible within the lèmes de cohabitation entre le monde sportif et le monde civil', Journal des tribunaux de travail 1992, p. 461, at Community to make the transfer of a profes- p. 463 ('une véritable expropriation').

I - 5024

UNION ROYALE BELGE DES SOCIÉTÉS DE FOOTBALL ASSOCIATION AND OTHERS v BOSMAN AND OTHERS

250. That not only corresponds to the view 248. From all the above, it thus follows in put forward by Mr Bosman. The Commis- my opinion that the transfer rules hitherto in sion too expressed the same opinion at the force are not justified by a reason in the gen- hearing.

I - 5025

O P I N I O N O F MR L E N Z — CASE C-415/93

251. It seems to me to be especially signifi- tition provisions of the EC Treaty should be cant, however, that a Member State — the applied, and not Article 48. At the hearing, Kingdom of Denmark — has also put for- however, it rightly resiled from that position. ward this view. That shows that the Member N o reason can be seen why the rules at issue States have no inherent interest in the preser- in this case should not be subject both to vation of that transfer system. Article 48 and to E C competition law. 311 The EC Treaty at various places regulates the inter-relationship of the various fields in which its provisions apply. 312 For Article 48 on the one hand and Article 85 et seq. on 252. The view put forward here is also in the other hand there is no such provision, so harmony with the view for which the Euro- that in principle both sets of rules may be pean Parliament has long contended. In this applicable to a single factual situation. respect I may content myself with referring to the report of its Committee on Legal Affairs and Citizens' Rights on the freedom of movement of professional footballers within the Community of 1 March 1989 307 2. Applicability of Article 85 and the report of the Committee on Culture, Youth, Education and the Media on 'The European Community and Sport' of 27 April 1994 308 and to the resolutions of the European Parliament, adopted on that (a) Undertakings and associations of under- basis, of 11 April 1989 309 and 21 November takings 1991. 310

content for Article 85 and Article 86. 313 regarded as associations of undertakings According to the case-law, it encompasses within the meaning of Article 85. The fact 'every entity engaged in an economic activ- that in addition to the professional clubs, a ity, regardless of the legal status of the entity large number of amateur clubs also belong to and the way in which it is financed'. 314 It those associations makes no difference. can therefore not seriously be disputed, in view of what has already been said on this point, 315 that the professional clubs engage in such an economic activity. URBSFA's argument that that is true only of the large clubs, but not of the clubs concerned by the present proceedings, since the latter carry on only a minor economic activity, is not cor- rect: the size of the undertaking does not Moreover, associations of undertakings may matter. 316 The activities of US Dunkerque also be regarded as 'undertakings' within the and RC Liège are not different in character meaning of that provision, in so far as they from those of bigger clubs. What is different themselves engage in economic activity. 318 is only the economic success obtained by the clubs in question from their activity.

The Com- mission found in that connection that FIFA and the Italian football association inter alia 256. There is likewise no doubt that the carried on activities of an economic nature individual football associations are to be and were thus to be regarded as undertak- ings. 320 That decision has since become final. The Court of First Instance recently had to decide on an action brought by the Scottish 313 — Judgment of the Court of First Instance in Joined Cases T-68/89, T-77/89 and T-78/89 SIV and Others v Commis- Football Association. 321 That action was sion [1992] ECR II-1403, paragraph 358. 314 — Judgment in Case C-41/90 Höfner and Eher [1991] ECR I-1979, paragraph 21; also judgment in Joined Cases C-159/91 and C-160/91 Poucet [1993] ECR I-637, para- graph 17. 318 — Helmuth Schröter, in: Groeben, Thiesen and Ehlermann, 315 — See point 125 and point 126 et seq. above. Kommentar zum EWG-Vertrag, 4th ed., Baden-Baden 1991, preliminary observation on Articles 85 to 89, para- 316 — Glciss and Hirsch (Martin Hirsch and Thomas O. J. Burk-

I - 5027

OPINION OF MR LENZ — CASE C-415/93

directed against a decision of the Commis- 259. With one exception, none of the parties sion taken pursuant to Article 11 of Regu- has seriously attempted to dispute the view lation N o 17 of the Council of 6 February that the present case concerns agreements or 1962, First Regulation implementing Articles decisions which are to be assessed by refer- 85 and 86 of the Treaty. 322 That provision ence to Article 85. Only the French Govern- allows the Commission to obtain infor- ment adopted the position in its written mation from undertakings and associations observations that the transfer rules could not of undertakings. The Scottish Football Asso- be traced back to an agreement or decision. ciation raised various objections to the Com- It argued that the hindrance to freedom of mission's decision. It did not, however, dis- movement challenged by Mr Bosman did not pute that the Commission could rely on that result from the circumstance that a transfer provision against it. The Court of First fee had to be paid but from the fact that Instance therefore did not deal with the excessive transfer fees were demanded; no point either. That judgment has since become concerted practice could be seen therein, final and binding. however; instead this was merely the conse- quence of an actual situation ('la consé- quence d'une situation de fait').

(b) Agreements between undertakings or decisions by associations of undertakings I must admit that I am incapable of follow- ing that logic. In my opinion it is obvious that the transfer rules are not a natural phe- nomenon, but were created by the clubs and their associations.

Member States'. 324 The adverse effect must which have been mentioned that even today also be appreciable. 325 Both the former and those rules already have a considerable effect the latter condition are fulfilled in the on trade between Member States. Nor does present case. For the rules on foreign players the observation by URBSFA that a consider- that is in any event self-explanatory. The able number of foreign players are already rules on transfers also, however, have a sub- playing in the Belgian league speak against stantial effect on trade between Member the assumption that the rules in question States. The figures for Italy quoted above, affect trade between Member States. Instead for example, tell a plain tale in that they appear to me to confirm that there is a respect. 326 Moreover, it would suffice if trade considerable interest among players in mov- between Member States was potentially ing abroad. As I have already mentioned, the affected in an appreciable manner. 327 That is rules on foreign players were introduced in certainly the case. the 1960s — that is, after the entry into force of the Treaty. The introduction of those rules and their vehement defence by the associa- tions in the present proceedings would be incomprehensible if they in fact had no appreciable effect on trade between Member States. The rules on foreign players, like the rules on transfers, are liable to obstruct the realization of the corresponding intentions.

I - 5029

O P I N I O N O F MR L E N Z — CASE C-415/93

The same applies to Mr Bosman's theory The factual elements of Article 85(1) are ful- that the transfer rules set up a barrier to filled if the restriction of competition repre- access to the market, so that for that reason sents the purpose or the effect of the corre-

331 — See, for example, Lennart Ritter, Francis Rawlinson and W. David Braun, EEC Competition Law, Deventer and 330 — The same view is expressed by Zäch, op. cit. (note 152), Boston 1991, p. 32; Gleiss and Hirsch, op. cit. (note 316), p. 852, who assesses the transfer rules as 'typical cartel paragraph 23 on Article 85(1). agreements' within the meaning of Article 85(1 )(c). 332 — See point 134 and point 201 above.

I - 5030

UNION ROYALE BELGE DES SOCIÉTÉS DE FOOTBALL ASSOCIATION AND OTHERS v BOSMAN AND OTHERS

too there is a restriction of competition. The 85(1). It would be unconvincing to reject obstacle set up by those rules is of a purely that argument on the ground that paragraph financial nature. Anyone who has sufficient 3 of Article 85 in any event provides the pos- money can therefore create a top team out of sibility of exemption from the prohibition in a weaker or even insignificant one. There are paragraph 1. several examples of that. It is thus highly questionable whether that aspect can be rel- evant for the question of the presence of a restriction of competition.

I - 5031

O P I N I O N O F MR L E N Z — CASE C-415/93

335 — As a representative example, see the well-known work by René Joliet, The Rule of Reason in Antitrust Law: Ameri- can, German and Common Market Laws in Comparative Perspective, Liège 1967. 336 — See, for example, Schröter, op. cit. (note 318), paragraph 75 on Article 85; Whish, op. cit. (note 328), p. 209. 339 — See the judgment in Case 42/84 Remia v Commission [1985] ECR 2545, paragraph 20. 337 — Case T-17/93 Matra Hachette v Commission [1994] ECR II-595, paragraph 85. 340 — See in particular the judgment in Case 56/65 Société Tech- nique Minière v Maschinenbau Ulm [1966] ECR 235, at 338 — Judgments of 6 April 1995 in Case T-147/89 Société mét- p. 250. allurgique de Normandie v Commission, [1995] ECR II-1057, paragraph 90, and Case T-151/89 Société des treil- 341 — Case C-250/92 Gottrup-Klim v Dansk Landbrugs Grov- lis et panneaux soudés v Commission, [1995] ECR II-1191, vareselskab [1994] ECR I-5641. paragraph 90. 342 — Ibid., paragraphs 31 to 34.

I - 5032

UNION ROYALE BELGE DES SOCIÉTÉS DE FOOTBALL ASSOCIATION AND OTHERS v BOSMAN AND OTHERS

270. As I have already stated, the field of Similar considerations apply to the rules on professional football is substantially different foreign players. With respect to them, it is from other markets in that the clubs are much simpler still to reach the conclusion mutually dependent on each other. 3 4 5In that they are not necessary or indispensable view of those special features, the possibility for attaining the objectives ascribed to them. 347 I can refer here to those observa- tions too. 343 — Thus, for example, Bellamy and Child, Common Market Law of Competition, ed. Vivien Rose, 4th ed., London 1993, point 2-063. 344 — Cited above (note 341), paragraphs 35 and 36. 346 — See point 218 et seq. above. 345 — See point 227 above. 347 — See point 137 et seq. above.

I - 5033

O P I N I O N O F MR L E N Z — CASE C-415/93

348 — For more detail see, for example, the article by Gary R. Roberts, 'Antitrust Issues in Professional Sports', in: Gary A. Uberstine (ed.), Law of Professional and Amateur Sports, Part 2, Deerfield, New York and Rochester 1994, 273. There is in my opinion no rule to the p. 19-1 (especially pp. 19-45 ff.). 349 — See the judgment of the United States Court of Appeals, effect that agreements which concern Second Circuit, of 24 January 1995 in National Basketball employment relationships are in general and Association v Williams 45 F. (Federal Reporter) 3d 684, where the lower court's opinion that antitrust taw was not completely outside the scope of the provi- applicable to 'collective bargaining negotiations' was con- firmed; the judgment of the United States Court of sions on competition in the EC Treaty. N o r Appeals for the District of Columbia Circuit of 21 March is there any such rule, moreover, in the law 1995 in Brown v Pro Football, Inc. 50 F. 3d 1041 also observes that according to the case-law of the Supreme of the United States, which UEFA relies on. Court the 'labor exemption' (in so far as it is 'non- statutory') allows 'some union-employer agreements' a It is not necessary here to discuss in detail 'limited' exception from antitrust law. the bases and different varieties of the 'labor 350 — Judgment of 18 October 1976, 543 F. 2d 606.

I - 5034

UNION ROYALE BELGE DES SOCIÉTÉS DE FOOTBALL ASSOCIATION AND OTHERS v BOSMAN AND OTHERS

which is at times very close to the one I am such agreements or decisions should not fall putting forward. However, it need not be within the scope of Article 85. 354 discussed in more detail how faithfully that decision reflects the American legal position.

351 — For German law see, for instance, Hermann-Josef Bunte, in: Langen and Bunte, Kommentar zum deutschen und 354 — Zäch, op. cit. (note 152), takes a different view, however; europäischen Kartellrecht, 7th ed., Neuwied 1994, point without discussing the question at all, he adopts the pos- 155 et seq. on § 1. ition that the transfer rules concern the employment mar- 352 — For a contrary opinion, see Weatherill, op. cit (note 135), ket and are thus not caught by Article 85. p. 69, who notes the absence of a corresponding deroga- 355 — See point 31 et seq. above. It is probably not a matter of tion in the law. chance that the transfer rules o f those two countries are 353 — See Gleiss and Hirsch, op. cit. (note 316), point 20 on more favourable for players than those of the other asso- Article 85(1). ciations in the Community.

I - 5035

O P I N I O N O F MR L E N Z — CASE C-415/93

(e) Article 85(3) 3. Interpretation of Article 86

277. There is no need to examine here whether the rules on transfers and rules on 279. Finally, it must be ascertained whether foreign players could be exempted under the rules on foreign players and rules on Article 85(3). Such an exemption could be transfers at issue in this case are compatible granted only by the Commission. That with Article 86 of the EC Treaty. Under that would presuppose that a corresponding provision, 'any abuse by one or more under- application had been made. 356 takings of a dominant position within the common market or in a substantial part of it' is prohibited as incompatible with the com- mon market 'in so far as it may affect trade between Member States'.

356 — Castellaneta, op. cit. (note 136), p. 659, correctly points out that the 'gentlemen's agreement' of 1991 between the Commission and UEFA, which related to the new UEFA rules, cannot be regarded as an exemption within the meaning of Article 85(3). Such an exemption would require a formal decision. There was no such decision, however, as the Court of Justice found in an action brought by Mr Bosman (see the order in Case 281. The most important of the points still C-117/91 Bosman v Commission [1991] ECR I-4837, para- to be examined is thus the question whether graphs 13 to 15). 357 — See also Marticke, op. cit. (note 123), p. 74. Compare also one can speak of a dominant position within the interesting arguments of Weatherill, op. cit. (note 135), the meaning of Article 86 in the present case. p. 88 et seq. 358 — As also argued, with respect to the rules on foreign play- ers, by Giardini, op. cit. (note 119), p. 455; also Peter Karpenstein, 'Der Zugang von Ausländem zum Berufs- fußball innerhalb der Europäischen Gemeinschaft', in: Michael R. Will (ed.), Sportrecht in Europa, Heidelberg 359 — See point 255 et seq. above and point 260 et seq. respec- 1993, p. 171, at p. 188. tively.

I - 5036

UNION ROYALE BELGE DES SOCIÉTÉS DE FOOTBALL ASSOCIATION AND OTHERS v BOSMAN AND OTHERS

According to the case-law, that term refers to tion, but not of the associations. I find that a 'position of economic strength enjoyed by convincing. That approach also does justice an undertaking which enables it to prevent to the view expressed both by the Commis- effective competition being maintained on sion and by URBSFA that the rules in ques- the relevant market by affording it the power tion were not dictated by the associations, to behave to an appreciable extent indepen- but merely faithfully reflected the wishes of dently of its competitors, its customers and the clubs. ultimately of the consumers'. 360 As the wording of Article 86 shows, it is also possi- ble for several undertakings together to occupy a dominant position.

284. The Commission has already on 360 — Judgment in Case 85/76 Hoffmann-La Roche v Commis- numerous occasions in its decision-making sion [1979] ECR 461, paragraph 38; consistent case-law. practice assumed the existence of such a

I - 5037

O P I N I O N O F MR L E N Z — CASE C-415/93

sector. 'There is nothing, in principle, to prevent two or more independent economic entities from being, on a specific market, united by such economic links that, by virtue of that fact, together they hold a dominant position vis-à-vis the other operators on the same 286. The question need not be gone into in market. . . . However, it should be pointed out more depth here, however: the present case that for the purposes of establishing an does not concern the power on the market infringement of Article 86 .

The 1988 (flat glass), OJ 1989 L 33, p. 44, point 78 et seq.; present case, however, concerns rules which Decision 92/262/EEC of 1 April 1992 (French-West Afri- can shipowners' committees), OJ 1992 L 134, p. 1, point restrict the possibility of taking on players. 55 et seq.; and Decision 93/82/EEC of 23 December 1992 (Cewal and others), OJ 1993 L 34, p. 20, point 57. Those rules lead to a restriction of compe- See also the decisions in the field of merger control, for tition between the clubs. That is not,

I - 5038

UNION ROYALE BELGE DES SOCIÉTÉS DE FOOTBALL ASSOCIATION AND OTHERS v BOSMAN AND OTHERS

however, to be seen as an abuse within the In conclusion, then, like UEFA, URBSFA, meaning of Article 86, since in that respect the Commission and the Italian and French only the relationship between the clubs and Governments, I am of the opinion that there their players is affected. is no infringement of Article 86.

C — Conclusion

287. I therefore consider that the questions put by the Cour d'Appel, Liège, should be answered as follows:

1. Article 48 of the EC Treaty is to be interpreted as prohibiting