C-51/96

IV — Case C-51/96 I-2557

V — Case C-191/97 I-2559

A — Application of the Community provisions on freedom of movement I-2559

(a) The economic nature of Ms Deliège's activity I - 2560

( 1 ) The arguments of the parties I - 2561

(2) My views on the above issue I - 2563

(1) Exclusion of the application of Article 59 to the contested rules I - 2577

(aa) The rule in Keck and Mithouard I - 2577

(bb) The rules which derive from the particular nature of sport I - 2578

(2) Examination of the contested EJU rules in the light of Article 59 of the Trear y I - 2580

* Original language: Greek.

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1. In this case, the Court has been asked to answer two questions referred for a pre- liminary ruling under Article 177 of the EC Treaty (now Article 234 EC) by the Tribu- I I — Facts nal de Première Instance (Court of First Instance), N a m u r (Belgium). The Court thus has the opportunity to supplement its case-law concerning the way in which sport 2. Ms Deliège, a Belgian national and the falls within the scope of, and is linked to, applicant in the main proceedings, is a Community law. More specifically, the judoka in Belgium. She has achieved con- present case raises the question whether siderable success in that sport. 1According the fundamental principles of primary to her, however, she has fallen into dis- Community law relating to freedom of favour with the sports federations in her movement for persons and the protection country. 2 She claims that they repeatedly of fair competition (Articles 48 and 59 of prevented her from taking part in tourna- the EC Treaty, now, after amendment, ments in order to damage her career and to Articles 39 EC and 49 EC, and Articles 60, make it easier for rival athletes to join the 85 and 86 of the EC Treaty, now Arti- national team due to participate in the cles 50 EC, 81 EC and 82 EC; I shall Atlanta Olympic Games. The defendant henceforth refer to the numbering used federations contend that Ms Deliège was prior to the entry into force of the Treaty of excluded from the international tourna- Amsterdam) apply within the context of the ments on strictly sport-related and disci- relationship between sportsmen and the federations to which they belong. The dispute under consideration differs from 1 — She has been Belgian champion on several occasions, Bosman in two major respects: first, it European champion once and under-19s world champion relates to an individual rather than a team once. 2 — The Ligue Belge de Judo ('the LBJ') and the Ligue sport (judo); and second, the sport in Francophone de Judo ('the LFJ').

plinaiy grounds. It appears, first, that the and five women in each of the seven applicant's ability and performance do not categories 3 ). In order to implement the match those of the sportswomen chosen to IJF's decisions — that is to say, to select the take part in international tournaments and European sportsmen and sportswomen second, that she has a difficult character who would be sent to Atlanta — the and is inclined to commit disciplinary European Judo Union ('the EJU') met in offences. Nicosia, where it took the following deci- sions: the European selection list for the Olympic Games would be drawn up on the basis of the results achieved at the major European tournaments ('Category A' tour- naments) and in the European champion- ships. The right to enter judokas for those tournaments (including those in Basle, Paris and Leonding) was held exclusively by the 3. That feud between Ms Deliège and the national federations, each of which was Belgian sports authorities formed the back- allowed to put forward only seven men and drop to a number of incidents which led to seven women in total, including no more the dispute currently pending before the than one or two male or female judokas per national court. Ms Deliège wished to take category. Qualification for the selection list part in the 1995 European judo champion- was based on the best results achieved by ships, and the international judo tourna- each sportsman or sportswoman at three ments held in Basle on 2 and 3 December Category A tournaments and his or her 1995, Paris on 10 and 11 February 1996 results at the European championships. and Leonding on 16, 17 and 18 February Every athlete, male or female, therefore 1996. It was particularly important for her had an interest in participating in those to take part in those tournaments because tournaments in order to be one of the nine her place in the Belgian Olympic team best men and five best women from each depended largely on how well she per- category to be entered on the European formed in them. selection list. It should be pointed out, however, that any right to participate in the Olympic Games on the basis of past results accrued not to the athlete himself but to his country's national federation. In other words, it was quite possible for an athlete to be ranked first on the European selection list but ultimately not to participate in the Atlanta Games if his federation asked someone else to represent his country. 4. At this point, it is appropriate to exam- ine the criteria and mechanism for selecting judokas for the Atlanta Olympic Games. The International Judo Federation ('the IJF') had decided that those qualifying for those games would be the first eight in each category from the most recent world championships and a number of judokas 3 — As in other combat sports, athletes are divided into categories according to weight. Ms Deliège, for example, for each continent (for Europe, nine men usually fought in the under-52 kilo category.

6. Before the same court, Ms Deliège then brought against the LFJ, the LBJ and the 8. When required to give judgment on the president of the LBJ, François Pacquée, an substance of the case, the Tribunal de action seeking, first, a ruling that the Première Instance, Namur, taking the view system of selecting judokas for interna- that there was a risk that the Court of tional tournaments is unlawful because it is Justice would declare the question referred contrary to the principle of freedom to in Case C-51/96 inadmissible, considered it provide services and the freedom of sports- appropriate to stay proceedings pending a men to pursue their profession, second — preliminary ruling (Case C-191/97) as to: in the event that the national court con- sidered it appropriate to refer a question for a preliminary ruling to the Court of Jus- tice — the adoption of a delaying measure pending an answer to the question referred and third, an order requiring the defendant federations and the president of the LBJ to 'Whether or not it is contrary to the Treaty pay her BEF 30 million by way of com- of Rome, in particular Articles 59, 85 and pensation. 86 of the Treaty, to require professional or

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10. I consider it appropriate to look more 9. The sports federations, the Belgian, closely at the first of the picas as to Greek and Italian Governments and the inadmissibility. According to Pardini, 6the Commission submit that the question refer- Court of Justice has jurisdiction to answer red in Case C-51/96 is inadmissible. They questions referred for a preliminary ruling put forward three arguments in support of in the context of proceedings for interim that view. First, they submit that the answer measures provided that the answer may be to the question concerned would be of of use to the court making the reference. absolutely no use to the national court. The Conversely, 'the Court of Justice has no proceedings for interim measures in which jurisdiction to hear a reference for a the question was submitted had come to an preliminary ruling when at the time it is end when the matter was referred to the made the procedure before the court mak- Court of Justice and the referring court had ing it has already been terminated.' 7Simi- therefore ceased to be seised of the case. larly, a national court hearing an applica- The point of law raised in the question tion for interim measures cannot refer a referred relates to the substance of the case, question for a preliminary ruling with a in respect of which the court hearing the view to assisting the national court which application for interim measures is not will have to dispose of the substance of the entitled to take action. Consequently, in case. The Court clearly stated that '|i]t accordance with the rule in Pardini, 4the follows from both the wording and the question referred should not be answered. The second argument in favour of inad- missibility is based on the content of the 5 — Reference is made in particular to Joined Cases C-320/90, C-321/90 and C-322/90 Telemarsicabruzzo and Others [1993] ECR I-393. 6 — Cited in footnote 4 ahove. 4 — Case 338/85 Pardini [1988] ECR 2041. 7 — Pardini, cited in footnote 4 above, paragraph 11.

scheme' of Article 177 (now Article 234 which has since had exclusive jurisdiction EC) that 'only a national court or tribunal to rule on the substance. Accordingly, even which considers that the preliminary ruling if the court hearing the application for requested is necessary to enable it to give interim measures were to receive an answer judgment may exercise the right to bring a to the question referred, it could not take matter before the Court'. 8 any further action to apply Community rules to the relationship between Ms Deliège and the sports federations because, in so doing, it would have to address matters jurisdiction over which lies exclu- sively with the court required to give 11. Under Belgian procedural law, in parti- judgment on the substance. In other words, cular Articles 584 and 1039(1) of the Code it would be acting in a manner detrimental Judiciare (Judicial Code), an order granting to the main proceedings, in direct conflict interim measures does not constitute the with national rules of procedure. final ruling but merely provides a tempor- ary remedy in cases of urgency. A court hearing an application for interim measures cannot, in its decision, encroach upon matters which fall within the exclusive jurisdiction of the court dealing with the substance of the case. That prohibition is not in any way affected by the case-law of the Belgian Court of Cassation which permits a court hearing an application for interim measures to examine certain legal 13. It is therefore clear that, when the time aspects of the dispute. 9 T h a t right is came to answer the question referred for a granted within the very limited context in preliminary ruling in Case C-51/96, the which courts hearing applications for proceedings for interim measures which interim measures operate, that is to say gave rise to that question had come to an provisional settlement in cases of urgency. end and the referring court had therefore necessarily exhausted its jurisdiction. N o r is it possible, in accordance with Pardini, 10 to answer the question referred merely in order to assist the national court required to give judgment on the substance. Indeed, 12. In addition to referring a question for a it was for that very reason that, in view of preliminary ruling, the order for reference the risk that the question referred might be also provisionally settled the relationship dismissed as i n a d m i s s i b l e , the c o u r t between Ms Deliège and the sports federa- required to dispose of the substance of the tions concerned. The proceedings on the case submitted a new question, this time in substance were initiated by Ms Deliège on Case C-191/97. In the light of all those 26 February and 1 March 1996 before the factors, I do not consider that there is any Tribunal de Première Instance, Namur, need to examine the substance of the question in Case C-51/96.

V — Case C-191/97 dent right to defend itself against the Court's findings. Moreover, the Court docs not have jurisdiction to examine the merits of the order for reference as regards the participation of the IJF and the EJU in the main proceedings. In so far as those federations are not parties to the proceed- 14. The sports federations, the Greek Gov- ings before the national court, they do not ernment and the Commission argue in their have the right to submit observations observations that the question referred in before the Court. They can, however, avail Case C-191/97 is inadmissible, first, themselves of the remedies available under because it does not set out the legal and national procedural law to challenge the factual background to the case in sufficient decisions of the referring court, if they have detail to make a reply possible, second, been wrongfully excluded from the main because it does not relate to Community proceedings. law, third, because any answer would infringe the rights of the defence of the IJF and the EJU which, although directly involved in the case, have not been able to express their views and fourth, because the question is hypothetical. The Netherlands 16. It remains to be examined to what and Italian Governments have also cast extent the Court of Justice has sufficient doubt on the admissibility of the question information regarding the legal and factual in their oral observations. context within which it has been called upon to answer the question referred. I shall return to that point when examining the two specific issues raised in the ques- tion. The question concerns the compat- ibility of certain sports rules adopted by the EJU with Community law, from the point of view, first, of the Community provisions on freedom of movement and, second, of 15. I believe that the question at issue is not the Community rules on the protection of of a hypothetical nature and that its competition. The following examination subject-matter, as I shall explain later, 11 will look at each of those two fundamental does not necessarily fall outside the scope issues in turn. of Community law. Furthermore, the asser- tion that the rights of the defence of the IJF and the EJU have been infringed must be rejected. First of all, an indirect examina- tion of the conformity of rules with Com- munity law in the context of an answer to a question referred for a preliminary ruling A — Application of the Community provi- does not infringe the rights of the party sions on freedom of movement responsible for those rules in such a way as to necessitate its being granted an indepen-

2 0 . The Court has held that 'sport is subject to Community law only in so far 18. The above finding is not sufficient, as it constitutes an economic activity within however, to provide an answer to the the meaning of Article 2 of the Treaty question referred. The present case must (now, after amendment, Article 2 EC)'. 12 be examined from two not entirely uncon- It is therefore necessary to determine the nected points of view. First, does Ms extent to which Ms Deliège's practice of Deliège's sporting activity as a judoka fall judo constitutes an 'economic activity'. If within the scope of the relevant articles of the answer is in the affirmative, Article 59 the Treaty? In other words, does it exhibit et seq. of the Treaty will, in principle, have the economic dimension necessary for it to to be applied. be covered by the principle of freedom of movement? Second, even if the first ques- tion is answered in the affirmative, are the relevant sports rules adopted by the EJU with a view to restricting the number of potential participants in international tour- 2 1 . This is the most important issue in naments contrary to Article 59 et seq. of providing a useful answer to the question the Treaty? referred. A finding that Ms Deliège is to be regarded as pursuing an economic activity enjoying the protection of Community rules will in itself lend considerable weight to her case in the main proceedings, irrespective of the Court's final ruling on the compatibility of the contested EJU rules

12 — See Case 13/76 Donà [1976] ECR 1333, paragraph 12; 19. I shall answer those questions in the Case 36/74 Walrave and Koch [1974] ECR 1405, para- graph 4; and Case C-41J/93 Bosman [1995] ECR I-4921, following points of my examination. More- paragraph 73.

Ms Deliège submits that the trilateral relationship between the sporting opera- tors, the non-sporting operators and the (1) The arguments of the parties athletes themselves is therefore character- ised by the provision or receipt of various kinds of service. These are always cross- border services, whether because the sup- pliers or the recipients of the services are established in different Member States, 13 or because they are required to move from one Member State to another. 14 The ser- vices are generally provided 'for remunera- 22. Ms Deliège maintains that the partici- tion' within the meaning of Article 60 of pation of a high-level judoka (such as she) the Treaty, as interpreted by case-law. 15 in major European tournaments constitutes an economic activity. That activity can be broken down into four different types of service. First, those which Ms Deliège provides to the tournament organisers, in so far as such competitions are entertain- ment events staged for spectators for remu- Ms Deliège submits, finally, that her neration which generate revenue from the income from judo, in particular from sale of television broadcasting rights or sponsorship, and the financial aid paid by from advertising. Secondly, the athlete the Belgian federations enabled her to earn herself is the recipient of services provided a living exclusively from that sport, at least by the organisers, in so far as she has to pay until the incidents which gave rise to the a registration fee in order to take part in the tournaments. Thirdly, she provides services to her sponsors who, in return for financial 13 — Case 352/85 Bond van Adverteerders [1988] ECR 2085. consideration, conduct their advertising 14 — Joined Cases 286/82 and 26/83 Luisi and Carbone [19841 through their connection with the athlete. ECR 377. 15 — See Case 263/86 Humbel [1988] ECR 5365, and Case According to Ms Deliège, the fact that the C-275/92 Schindler [19941 ECR I-1039.

dispute currently pending before the judo, are non-existent or marginal in any national court. event — constitutes not 'remuneration' for the sporting activity but consideration for the provision of advertising services. They cannot therefore make the sporting activity as such economic in nature. In the same context, judokas cannot be regarded as recipients of services provided by tourna- ment organisers. They are not asked to pay 23. The LFJ, the LBJ and Mr. Pacquée, on any financial consideration in order to take the other hand, contend that judo, at least part in the events. Moreover, the tourna- as it is practised in Belgium, is a purely ments are not profit-making; they are sporting and recreational activity which is sometimes held without spectators or on a not of an economic nature. In order for the free-entry basis. contrary to be true, practice of that sport would have to guarantee an appreciable return, which is not so in the present case. Ms Deliège is not attached to the federation by any form of employment relationship and does not receive any other kind of remuneration for practising her sport. The LFJ describes the grants and travelling expenses as aid to improve sporting perfor- mance, comparable to that granted to a diligent student to finance his studies. The LBJ and Mr. Pacquée make the same analogy, drawing a parallel between ama- teur sport — their classification of judo — and State education. They also refer to Humbel, 16 from which they infer that an activity which is not pursued with a view to profit, but which aims to satisfy social and cultural aspirations, does not fall within the 24. The Governments of most of the States scope of Article 60 of the Treaty. The which have submitted observations, and practice of judo, they submit, constitutes the Commission, take the same view as the an activity of that kind in Belgium. Belgian judo federations. They conclude that there is insufficient evidence to support the view that, in the light of the conditions and the context in which it is pursued, Ms Deliège's sporting activity constitutes an economic activity within the meaning of Article 2 of the Treaty. They submit that there is no evidence of remuneration, that is They further contend that any earnings to say financial consideration received by from sponsorship — which, in the case of the athlete for practising judo, and that Article 59 et seq. of the Treaty are not therefore applicable. Only the Finnish and 16 — Cited in footnote 15 above. Netherlands Governments maintain that

26. It should be stated to begin with that the fact that judo is in principle an amateur 1 7 — Cf paragraphs 79 and 80 of the judgment in Bosnian, tiled in footnote 12 above. sport, as contended by the Belgian federa- 'As regards the arguments based on the principle of tions and most of the Member States, does freedom of association, it must he recognised that this principle, enshrined in Article 11 of the European Con- not in itself exclude Ms Deliège's situation vention for the Protection of Minnan Rights and Funda- mental Freedoms and resulting from the constitutional from the scope of Article 59 et seq. of the traditions common to the Member States, is one of the fundamental rights winch, as the Court has consistently Treaty. Whether or not Ms Deliège's activ- held and as is reaffirmed in the preamble to tile Single ity is economic will emerge from the European Act and in Article F(2) of the Treaty on European Union, are protected m the Community legal particular characteristics of the activity order. itself, not from the sports federations' However, the rules laid down by sporting associations to which the national court refers cannot be seen as necessary assertions regarding the image of judo to ensure enioyment of that freedom by those associations, by the clubs or by their players, nor can they he seen as an today. Even if it is accepted that the present inevitable result thereof.'

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scope of Article 59 et seq. of the Treaty, courses taught under the national second- since the problem does not directly affect ary education system or in an institute of the exercise of that freedom. However, I higher education financed out of public shall return to the issue of the limits to self- funds cannot be regarded as consideration regulation in sport later in my examina- for teaching or enrolment fees which the tion. 1 8 students might have to pay.

31. The Court sometimes shows a degree of flexibility even as regards the link that must exist between the provider of the service and the recipient, and between the remu- neration and the services provided. The 29. In Humbel 19 and Wirth, 20 the Court Bond van Adverteerders case 2 4 required an held that 'the essential characteristic of examination under Article 60 of the Treaty remuneration lies in the fact that it con- of the cross-border transmission by cable of stitutes consideration for the service in television programmes containing adver- question, and is normally agreed upon tisements. In the m a i n , t h a t activity between the provider and the recipient of involves four categories of person: the the service'. 21 On that basis, it held that broadcasters of television programmes; the cable network operators; the adverti- 18 — See points 76 and 87 et seq. below. 19 — Cited in footnote 15 above. 20 — Case C-109/92 Wirth [1993] ECR I-6447. 22 — Cited in footnote 15 above. 21 — Humbel, cited in footnote 15 above, paragraph 17, and 23 — Schindler, cited in footnote 15 above, paragraph 33. Wirth, cited in footnote 20 above, paragraph 15. 24 — Cited in footnote 13 above.

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(cc) Ms Deliège's alleged earnings from judo

33. I shall turn now to examine each 32. The Court's judgment in Steymann, 27 party's submissions concerning whether or concerning the nature of activities per- not Ms Deliège performs an economic formed by a person in his capacity as a activity by providing services for remunera- member of a religious community, is also of tion. As stated above, Ms Deliège puts interest. It was held in that case that work forward four types of service within the carried out within that community by its meaning of Article 60 of the Treaty as members, in so far as the work aims to being directly linked to her sporting activity ensure its economic independence, 'consti- and to her participation in international tutes an essential part of participation in tournaments in Europe. Unless the Court is that community'; 28 consequently, the ser- minded to accept that the other three types of service which she says she provides do not meet the requirements of Article 60 of 25 — My emphasis. the Treaty, I do not consider it appropriate 2 6 — Bond van Adverteerders, cited in footnote 13 above, paragraph 16. 27 — Case 196/87 Steymann |1988] UCR 6159. 28 — Steymann, cited in footnote 27 above, paragraph 12. 29 — Ibidem, paragraph 12.

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to examine her assertions regarding issue of sponsorship, irrespective of whe- the services she claims to receive from the ther the sums in question are paid to Ms tournament organisers. 30 I shall look at the Deliège, to the competition organisers or to services which she allegedly provides, first, the judo federations. to the LFJ and the LBJ, secondly, to the competition organisers and, thirdly, to her sponsors.

35. In these circumstances, the analysis that 37. Let us therefore examine each of the follows falls into two parts: the first arguments raised against Ms Deliège's consists of a legal assessment of the finan- assertions. Doubt has been cast first of all cial and other aid which Ms Deliège has on whether a sum of money which is not received from the judo federations in Bel- paid by way of consideration under a gium; while the second looks at the broader contract of employment or any other contractual relationship between the ath- lete and the federation, and which has not 30 — I consider that, in the circumstances of this dispute, where the Court is asked to assess the validity of the way in which been fixed by agreement between the two athletes are selected to participate in tournaments, the primary consideration is the extent to which those athletes parties, may be classified as remuneration are providers of services rather than recipients of services. within the meaning of Article 60. It is

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38. That point forms the basis of the second argument put forward by Ms Deliè- ge's opponents and primarily the defendant federations in the main proceedings. As has been seen, the federations submit that the mechanism of providing financial aid to athletes is intended solely to help them 40. The above arguments, which are con- improve their performance, and therefore trary to Ms Deliège's views, are not without to ensure their development as athletes, in logic. They are, nonetheless, based on a the same way as a State education system potentially unsound generalisation. In the offers bursaries to pupils who excel at vast majority of cases, it is true, the practice school. The fact that the federations are of judo is not at all economic in nature and non-profit-making and that the aid they is not the concern of Community law. It is provide serves purely social and cultural an entirely non-economic activity organised purposes argues in favour of the non- to promote educational, social and cultural application of Article 60 in the present aims connected with the ideals of sport. Is

31 — Cited in footnote 15 above. 33 — Cited til footnote 15 above. 32 — Cited in footnote 27 above. 34 — Cited m footnote 20 above.

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4 3 . The criteria for defining the category at issue may be objective or subjective. I shall look first at the former, which are also the most reliable. A sportsman is a 'non- amateur' falling within the scope of Arti- 42. The first major problem of interpreta- cle 59 et seq. of the Treaty where his tion lies in defining that category. H o w is a practice of sport, viewed objectively, must distinction to be drawn between purely be treated in the same way as the practice amateur athletes and those who are pro- of a profession, and therefore constitutes tected by the provisions of the Treaty? the regular pursuit of the funds necessary to Clearly not every athlete who is highly support himself. Classification as such will successful or receives some form of subsidy depend primarily on the objective condi- or aid will necessarily fall within the 'non- tions of practice which the federation or amateur' category. It is useful here to draw some other institution attaches to the between sport and State education a paral- award of financial aid: daily training, other lel which has already been referred to by obligations requiring exclusive dedication

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35 — It is worth noting that the conditions for receiving financial aid on a regular basis arc laid down by the federations 45. It is true that, because of the many themselves in a general and abstract manner. They stipulate, for example, that athletes who can demonstrate forms in which the aid is granted, it is not a degree of success in competition and who follow a certain training regime are to receive periodic financial aid always possible to determine its true pur- or remuneration in the form of lump-sum bonuses. pose. 38 However, I believe that the regular 36 — This raises a difficult issue. Must a person's practice of sport he successful in order to exhibit an economic payment of aid by federations to their interest? In other words, docs Community law protect champions often extends beyond the con- only successful athletes? The answer is not obvious. I believe that some performance at a high level — a criterion text of performance enhancement. A high- which falls outside the scope of legal assessment — is essential, and that, without it, it is objectively clear that an level athlete provides an important service athlete is not eligible for the aid which federations make to the sport's governing bodies. His success available for champions. I do not, however, consider that 'high-level non-amateur athletes' who have obtained aid makes him an 'idol' for the young people from the federation should be treated differently from athletes who, because of the circumstances under which the federation wishes to attract, a magnet they practise the sport and their results, may legitimately claim such aid. for sponsors, and another argument for sports organisations to rely on when seek- 37 — Caution must be exercised, however: while the large amount of the aid received supports the argument that the sporting activity is economic in nature, that docs not mean that athletes who receive a negligible amount by way of aid do not pursue an economic activity solely because their 38 — However, the premiums paid to champions in amateur income is low. The primary criterion remains the condi- sports after a major success (e.g. winning a medal in the tions under which they pursue the sporting activity in Olympic Games) are clearly a reward for success rather question. than an aiti to improve performance.

39 — Sport practised on a purely amateur basis does not need champions or any special support for them. It is the 41 — BEF 250 000 in 1993 and BEF 200 000 in 1994. federations which establish mechanisms for granting aid to 42 — Those w h o qualify for the 'high-level non-amateur athlete' the best athletes and determine the conditions under which category. they may practise their sport. Through those mechanisms they encourage champions to see their sporting career as a 43 — Approximately BEF 30 000. means of earning a living. 44 — BEF 1 000 000 for a gold medal, BEF 600 000 for silver 40 — In reply to the Commission's argument in this respect, and BEF 400 000 for bronze. while judo does not 'normally' lead to remuneration, the 45 — The documents before the Court show that, in return for fact remains that some judokas are 'normally' remunerated being guaranteed financial support from the judo federa- for their performance and their activity. More generally, I tion, athletes who receive it must submit to significant think that, nowadays, any Olympic-standard athlete obligations and undertakings. Failure to attend a number 'normally' practises his sport, whatever that may be, for of training sessions is enough for an athlete to lose such remuneration or with a view to obtaining remuneration. benefits.

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sport must be regarded as an economic of the services which she claims to offer her activity within the meaning of the Treaty. sponsors and the tournament organisers, it That conclusion is corroborated by the is necessary, first of all, to undertake a more analysis that follows. general analysis of the relationship between sport and economic life. By examining the form and strength of the link between business and sport, it will be possible to draw conclusions which will be useful in resolving this dispute, although the follow- ing basic rule can be established here and now: the closer the relationship between (ii) The link between sport and economic sporting activity and economic activity, the life more the sporting activity will be subject to the rules of Community law on freedom of movement.

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cularly so where the economic component between the advertising services which an of the sporting activity affects the sporting athlete can provide and how well he per- event as a whole, in the sense that, without forms in his sport. His future as an it, the sporting event would be dramatically 'advertising idol' goes hand in hand with different, or could not take place at all. the success of his sporting career.

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5 3 . However, the existence of personal Treaty. Wherein, however, does that eco- sponsors, as in Ms Deliège's case, is not nomic dimension lie? First of all, in the fact insignificant, particularly where other that spectators may have to pay to attend a objective factors argue in favour of the sports event; secondly, in that a sports event contention that practice of the sport con- may also become a television product cerned may, under certain circumstances, which will generate substantial revenue exhibit a more general economic interest. for those who hold the television broad- casting rights; and, lastly — if not most importantly —, in that it may provide a framework for promotion through adver- tising, that is to say that it may become a means of providing advertising services. Those factors must be taken into account when considering the extent to which a sporting event constitutes an economic activity.

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There is, in fact, support for that view. On the basis of the above description, the term 'economic product' does appear to be more applicable to other sports, such as tennis or athletics, and sporting events other than Category A judo tournaments. The final decision on the matter rests with the national court, whose task it will be to 56. To return to our main focus of interest carry out the examination necessary to (judo competitions and, in particular, inter- make t h a t determination.

In other even richer cities in Southern Italy, the amount of the bonus could be as high as five talents, an enormous sum for the time, given that Solon had fixed the value of the Attic talent at 6 000 drachmas. In summary, the phenomena which the Court has been asked to examine in the present case (the interrelationship between amateur and profes- sional sport and sponsorship in sport) date back to antiquity. See, for example, H. Daremberg and E. Saglio, Dictionnaire des Antiquités Grecques et Romaines, Vol. IV, Graz, 1963, p. 182, 1st Edition, Paris 1907; N . Yia- 50 — This is true at least of the judo tournament in Paris, louris, History of the Olympic Games, Ekthotikí Athinón according to the information which Ms Deliège has (Athens Publishing House) 1976, p.108 ff. supplied to the Court, and which has not been called into 49 — In particular in sports such as football and basketball. question by the other parties.

57. Let us therefore examine Ms Deliège's and the case-law of the Court, the Advo- circumstances in greater detail: by partici- cate General concluded that, in order for 'a pating in Category A judo tournaments, she service' to exist, the provision of the service is said to provide services to the holders of did not have to give rise to payment on the the television broadcasting rights and/or to part of the recipient. He also pointed out those who use such events for advertising that 'in making these observations it is not purposes; the intermediaries for the services my intention to deny that the participants are the tournament organisers who, as in the broadcasting, transmission and such, obtain revenue from the television reception of a signal — the broadcaster, broadcasting rights and from advertising. It the advertiser, the owner of the satellite, the is true that Ms Deliège does not receive any cable operator, the viewer — pursue an remuneration direct from the recipients of economic interest or, in other words, that her services, but she does receive, by way of the supply of the service has an economic consideration from the organisers, the right aspect. I simply wish to point out that, to participate in those tournaments; by precisely because manifest interests are at participating, she satisfies her sponsors and stake, the supply of services does not cease is then rewarded by them in various ways. to be economic in nature where, as in this The fact that this is not a provision of case, no transfer of money takes place services in its traditional form — whereby between the broadcaster and the viewer. 5 2 the supplier provides a service direct to the Indeed, in my opinion, the supply of the recipient and is remunerated by him — service may still be economic in nature even should not necessarily lead us to the where there is no remuneration at all (as in conclusion that the relationship between the case of charitable programmes in which athletes, tournament organisers and televi- well-known sportsmen or actors take sion b r o a d c a s t e r s or a d v e r t i s e r s , as part...)'.53 described above, does not fall within the scope of the Community rules on freedom to provide services. Those rules were intro- duced to cover complex situations of this kind also.

where the interests at stake are many and of judo, precisely because of the special complex, as indeed they are in the case of conditions under which it takes place, the sporting events referred to by Ms constitutes an economic activity and is Deliège, the economic nature of the activity therefore protected by the Treaty, the may derive from other factors, even if no question arises as to the extent to which transfer of money takes place between the the EJU rules on the basis of which Ms provider and the recipient of one of the Deliège was excluded from certain interna- many services involved. tional tournaments are compatible with the primary Community rules on freedom to provide services. Under the EJU rules, men and women are selected for certain inter- national tournaments in accordance with two basic principles: first, national federa- tions have exclusive responsibility for selec- tion; and, secondly, the number of sports- 60. To recapitulate, it is my opinion that men and sportswomen who can be put the participation of a high-level non-ama- forward by each national federation is teur sportswoman with her own sponsors limited to one (or, exceptionally, two) per in international tournaments which involve category. not only sport but also constitute an economic event amounts to the exercise of an activity which would 'normally' be economic in nature. She is in principle protected by Community law and, in particular, by the rules on freedom to provide services. I have yet to examine whether the rules governing the conditions for participating in the tournaments in question fall within the scope of Article 59 and, if so, to what extent they are compa- tible with that article.

(aa) The rule in Keck and Mithouard

64. The Danish and Norwegian Govern- ments maintain that, in accordance with Keck and Mithouard 54 and Alpine Invest- ments, 55 the question of the applicability of Article 59 of the Treaty in the present case does not arise. They submit that the 66. I take the view, however, that, despite contested measures adopted by the EJU do the assertions to the contrary by the Danish not in themselves impede access to the and Norwegian Governments, the EJU provision of services (assuming of course rules at issue do not relate merely to the that participation in the judo tournaments way in which a service is organised, but are in question constitutes such a 'service' in concerned directly with the question of Ms Deliège's case), but affect only the way access to that service. Both the rule con- in which those services are provided. Mea- cerning 'one (or two) sportsmen or sports- sures which relate to the 'manner of women per category' and the principle that providing' a service — such as those which, participants in certain international com- without discrimination, govern the 'selling petitions should be selected by the national arrangements' for a product — do not fall federations alone apply directly to access within the scope of Articles 59 and 30 of for 'high-level non-amateur athletes', such the Treaty (now, after amendment, Arti- as Ms Deliège, to the market in services in cles 49 EC and 28 EC). other Member States. The rule in Keck and Mithouard should not therefore be applied in the present case. 54 — Joined Cases C-267/91 and C-268/91 Keck ami Muhimani [1993] ECR I-6097. 55 — Case C-384/93 Alpine Investments | 1 9 9 5 | ECR I-1141. 56 — Bosman, cited in footnote 12 above, paragraph 103.

68. The particular nature of sport has indeed been accepted by the Court as grounds for excluding application of the 69. The following conclusions can be principle of free movement. In Dona, it was drawn from the above case-law. First, expressly held that the provisions of Com- certain rules or practices relating to sport munity law on freedom of movement for do not fall within the scope of Article 59 of persons and freedom to provide services 'do the Treaty. Secondly, in order for that not prevent the adoption of rules or of a exception to apply, the rules or practices practice excluding foreign players from in question must be justified by specific, participation in certain matches for reasons non-economic reasons which relate purely which are not of an economic nature, to sport; the organisation of matches which relate to the particular nature and between national teams is a prime example context of such matches and are thus of of such a reason. Thirdly, the gap created in sporting interest only, such as, for example, the application of Community law is matches between national teams from dif- clearly delimited; departures from Commu- ferent countries'. 57 nity obligations may not exceed the pur- pose for which they are created.

As long ago as Walrave and Koch, the Community judicature held that the com- position of national teams 'is a question of purely sporting interest and as such has nothing to do with economic activity.' 58 70. I shall now apply the above rules to the The above findings were confirmed in facts of this case. The first argument that Bosman, where the Court recognised that could be put forward in favour of uphold- the Community provisions on freedom of ing the contested decisions of the EJU is their ultimate objective. They were

intended to serve as the basis for selecting to enter for the tournaments? Those are the the national teams which would represent questions I shall answer below. Europe in the Atlanta Olympic Games. More specifically, the international Cate- gory A judo tournaments to which Ms Deliège refers involved competition not only between individual sportsmen but also between national teams, the first prize being the right to send athletes to the next Olympic Games. Even though national teams were not competing directly against each another in those tournaments, the outcome of the tournaments was neverthe- 72. As far as the first question is concerned, less vitally important to each of the Eur- it must be observed that, in accordance opean national teams. Similarly, the com- with standard practice throughout the position of the European national teams world, the success or failure of a country's which would have the honour of attending national team in a particular sport lies in the greatest international sports event of the hands of the national federation respon- all, the Olympic Games, is a purely sport- sible for that sport. National federations ing matter which, in principle, has no have been entrusted with a task in the economic dimension. public interest, which consists in managing and promoting the interests of national teams so that they achieve the highest international honours. It is widely recog- nised that the highest honour for a national team is to be selected for the Olympic Games, that is to say for athletes wearing the national colours to represent their country there. Accordingly, since national teams were necessarily selected on the basis of performances in international Category 71. Consequently, the central aim of the A judo tournaments, it was quite logical contested EJU rules was the selection of that national federations should be given national teams for Atlanta. Logically, those the exclusive right to decide which athletes rules are premised on the need to send to would take part in those tournaments. The Atlanta the best national teams in Europe. very essence of the system would clearly be The best teams are those made up of the undermined if national judo federations athletes who have performed best in their were allowed to bear the responsibility for sport. That is why selection at European promoting the interests of the national level is based on athletes' success in certain team in that sport but could not themselves international tournaments and in the Eur- choose the sportsmen or sportswomen they opean championships. Two questions considered capable of defending those remain, however. First, was it essential to interests. Moreover, it is essential that make the national federations exclusively participants be selected exclusively by the responsible for deciding which athletes national federations. The effect of introdu- would take part in the international tour- cing a different system enabling athletes to naments at issue? Secondly, was it neces- enter international tournaments individu- sary to restrict the number of athletes ally, as Ms Deliège wishes, would be to which each national federation was entitled upset the balance between national federa-

tions, inasmuch as they would no longer ing the discussions leading to the conclu- each be represented by the same number of sion of the Treaty of Amsterdam. 61 In athletes. Declaration No 29 on sport, the Confer- ence 'emphasises the social significance of sport, in particular its role in forging identity and bringing people together.' Nor is it a coincidence that the same declaration recognises the need to listen to 73. That observation brings me to the sports associations when important ques- answer to the second question. When tions affecting sport are at issue, and to give defending the interests of their national special consideration to the particular char- teams with a view to selection for the acteristics of amateur sport. Games, national federations must be affor- ded the same opportunities. Accordingly, in order to ensure that they compete on equal terms, the EJU considered it appropriate, first, to grant national federations the exclusive right to select athletes for inter- national Category A tournaments and, 76. In summary, Community law recog- secondly, to restrict the number of partici- nises sporting authorities as having limited pants from each federation to one or two powers of self-management and self-regu- sportsmen or sportswomen per category. It lation on non-economic questions relating is certainly not for the Court to consider to the particular nature of sport. It is my the scope for increasing that number to view that, in adopting the contested rules, three, four or more athletes per category. the EJU did not exceed that limited power of self-management and self-regulation. The question of the application of Arti- cle 59 of the Treaty does not therefore arise. 74. In the light of the foregoing, it is my opinion that the contested EJU rules intro- duce provisions which are justified on 'non- economic grounds which relate to the particular nature and context of certain matches.' Consequently, the Community provisions on freedom to provide services (2) Examination of the contested EJU rules are not applicable. Nor does the restriction in the light of Article 59 of the Treaty on the scope of Article 59 exceed its purpose, which is to preserve the sporting ideal of noble competition between States.

exempt from Article 59, it is appropriate to 80. That finding does not necessarily mean make the following observations. that the contested sports rules are compa- tible with the requirements of Article 59 of the Treaty. It is very clear from the case-law of the Court that Article 59 relates not only to discriminatory restrictions, that is to say restrictions which provide for different treatment detrimental to the provider of services by reason of his nationality or the fact that he is established in a Member State other than that in which the services 78. It should be pointed out first of all that, are provided. Article 59 also covers restric- contrary to what Ms Deliège maintains, the tions which do not give rise to discrimina- EJU rules do not appear to give rise to tion. I refer in particular to Säger, 62 which discrimination. Ms Deliège claims that the states that 'Article 59 of the Treaty requires rule restricting the number of judokas per not only the elimination of all discrimina- category who may take part in interna- tion against a person providing services on tional Category A tournaments creates a the ground of his nationality but also the restriction which has discriminatory effects. abolition of any restriction, even if it Such discrimination is certainly not based applies without distinction to national directly on the nationality of the athlete, providers of services and to those of other since national federations can accept ath- Member States, when it is liable to prohibit letes of other nationalities for Category A or otherwise impede the activities of a judo tournaments, provided that they are provider of services established in another registered with the relevant federations and Member State'. 63 have a licence issued by them. However, Ms Deliège sees this as a potential source of discrimination based on the place where the athlete is established, which discrimina- tion is prohibited by Community law.

83. What therefore might justify the exis- tence of the EJU rules? On the basis of the arguments put forward by the parties, I consider that the following three points should be emphasised in this respect. 82. It remains to be examined to what extent the restrictions on the freedom to provide services imposed by the EJU rules are consistent with the rules of the Treaty. The Court has consistently held 65 that obstacles to freedom of movement can be tolerated by the Community legal order where the following conditions are met: 84. First, I have already referred to the firstly, where a derogation is expressly relationship between the contested sports provided for by Community law, as in the rules and the selection of the European case of Article 56 of the Treaty (now, after national teams for the Atlanta Olympic amendment, Article 46 EC), concerning Games. Even if it is not accepted that those national rules justified on grounds of public rules do not fall entirely outside the scope policy, public security or public health; and, of Article 59, inasmuch as they relate to secondly, in the case of measures which, particular matches between national teams, without giving rise to discrimination, are the fact remains that they are objectively justified by overriding needs in the public justified in so far as they apply to Member interest, are appropriate to the attainment States' national judo teams. Allow me to of the aim pursued and are not binding explain. The pursuit of a national team's beyond the degree necessary for the attain- interests constitutes an overriding need in ment of that aim. The EJU rules were not the public interest which, by its very nature, adopted on grounds of public policy, public is capable of justifying restrictions on the security or public health. Nevertheless, they freedom to provide services. In order to may be objectively justified by another meet that overriding need, it is possible to overriding need in the public interest. It is grant certain powers to the sports teams or therefore appropriate to apply the set of to the national sports federations, which criteria developed by the Court in its case- are also exclusively responsible for select- law in order to determine whether the ing national teams. One such justified prerogative is to confer on judo federations the exclusive right to select the sportsmen 64 — For the definition of this category, see point 41 et seq. and sportswomen who will take part in above. international Category A judo tourna- 65 — See Alpine Investments, cited in footnote 55 above; Säger, cited in footnote 62 above; Collectieve Antennevoorzien- ments. I also believe that the introduction ing Gouda, cited in footnote 63 above, and Case C-353/89 Commission v Netherlands [1991] ECR I-4069. of a mechanism for selecting the best

national teams to represent Europe in the Accordingly, the restrictions on access to Atlanta Olympic Games may be treated as certain international tournaments which an overriding need in the public interest, are imposed on judokas in order to make the meeting of which justifies certain mea- those tournaments more representative sures restricting access for judokas to and, by extension, in the interest of the international tournaments. It was the balanced development of the sport at pan- exclusive responsibility of the EJU to devise European level, are justified, even if they arrangements for selecting European may be equivalent to restrictions on the national teams for the Atlanta Games. By freedom to provide services. adopting the contested rules, the EJU took the measures necessary to perform that task. That is why the rules in question constitute a legitimate restriction on the freedom to provide services. 86. In response to that interpretation, Ms Deliège submits that the objectives, first, of selecting the best national teams for the Atlanta Games, and, second, of organising as many representative international judo tournaments as possible, do not require protection so absolute as to justify the restrictions imposed by the contested rules. 85. A second point which must be empha- Indeed, a less restrictive system based on sised is the representativeness ensured by more objective criteria such as each ath- the contested system for selecting partici- lete's individual track record and ability, pants in Category A judo tournaments. without any prior involvement by the Through the sports rules which it has federations, could, in her view, be created. chosen, the EJU promotes a particular form Ms Deliège believes that such a system of tournament which ensures that the would be easy to operate, particularly in widest possible range of European coun- individual sports such as judo. In that tries are represented. In other words, it regard, she cites the example of tennis, enables sportsmen from every Member the organisation of which reflects an ideal State of the EJU to take part. It thus combination of the promotion of the gen- strengthens the position of countries in eral interests of the sport and the protection which judo is less developed, first, because of the economic and professional interests judokas from those countries are able to of the athletes. take part in high-level competitions to which they would not have access if the sole criterion were their performance, and, secondly, because it raises the awareness of the country's sports fans, who would otherwise be indifferent to judo because 87. Ms Deliège's reasoning is unacceptable of their national judokas' poor perfor- because it disregards both the importance mance. In other words, the idea of repre- of the particular nature of sport and the sentativeness also includes the need for limited extent to which Community law balanced development of the sport at pan- may intervene in the practicalities of sport- European level; that need is directly linked ing activity. This brings me to the third to the ideal of noble competition which is, point in my observations on this matter. or at least should be, espoused in sport. Community law docs not require sport to

develop in a particular direction, in the bodies of a sport which have the last word sense that it does not demand that indivi- in determining whether it is predominantly dual sports become fully commercialised or professional or amateur. In any event, the fully professional. On the contrary, in contested EJU rules cannot be regarded as principle, it respects the choices made by contrary to the Community rules on free- the governing bodies of each sport, who are dom of movement or freedom to provide also the legitimate representatives of its services. practitioners, its fans and anyone with an interest in it generally. The Community legal order merely prohibits the commer- cialisation or professionalisation of sport in breach of the rules of the Treaty. I take the view, in other words, that the right of self- regulation which sport enjoys and to which I referred above is protected by Community B. The EJU rules in the light of Articles 85 law. It ensures that sporting institutions and 86 of the Treaty have the power to promote a sport in a manner which they consider to be most consistent with their objectives, provided that their choices do not give rise to discrimination or conceal the pursuit of economic interests. Accordingly, any deci- sion by sporting institutions which has as (a) The arguments of the parties its exclusive aim or objective the promotion of the social dimension of sport, over and above any intention of an economic nature, is in principle justified, even where it entails 89. According to Ms Deliège's observa- a restriction on Community freedoms. This tions, any judoka may be regarded as an is dictated by the need to guarantee sport's undertaking within the meaning of Arti- right of self-regulation. cle 85 of the Treaty, in so far as he provides services or at least participates in the provision of services. By the same token, the judo federations constitute associations of undertakings or autonomous undertak- ings in so far as they pursue economic activities. Consequently, the contested EJU rules must, in her view, be regarded either 88. In conclusion, it has been seen that, as a decision of an association of under- even in a so-called 'amateur' sport, there is takings or as an agreement between under- scope for application of the principles of takings, and Article 85 of the Treaty should freedom of movement for persons and therefore be applied. freedom to provide services. That does not in any way mean, however, that such a sport must become purely professional, in the sense of being fully comparable to a professional activity. Indeed, very few sports can be classified as purely profes- 90. Ms Deliège claims, next, that the sional or purely amateur. It is the governing contested rules have at least the potential

to produce a significant impact on intra- tion. It is (in her submission) the market in Community trade, in so far as judokas judo services provided at international judo cannot move freely within the common tournaments not involving competition market in order to provide their services between national teams. Geographically, there; the market associated with judo is the market covers the whole of the Euro- under the absolute and exclusive control of pean market on which the EJU rules apply the sporting federations. Ms Deliège sub- and, in any event, the Belgian market. Ms mits that the contested EJU rules restrict Deliège maintains that the LBJ holds a competition both on the market in judo dominant position on the Belgian market, tournaments and on the market in adver- while the EJU holds a dominant position on tising services provided within the context the European market. She submits that the of such tournaments. More specifically, the LBJ and the EJU abuse their dominant restriction on the number of athletes positions by imposing rules which deny allowed to take part in international Cate- certain athletes access to the financial gory A judo tournaments precludes the resources which they could derive from participation of athletes from countries practising their sport. According to Ms where that sport is highly developed. Deliège, the abuse lies in the fact that the Accordingly, the restriction on competition federations do not merely regulate matters adversely affects the quality of the services relating to the practice of judo, but also provided in the sector of judo tournaments. determine in a way which is unlawful the Furthermore, the contested rules allow conditions governing access to tourna- federations to control competition within ments. First of all, the right of selection the sport in a permanent and unlawful enjoyed by national federations could be manner which precludes the participation deemed comparable to the imposition by an of a greater number of athletes. undertaking in a dominant position of different rules of cooperation to the detri- ment of its business partners, namely sportsmen. Secondly, the effect of restrict- ing the number of judokas taking part in international Category A tournaments is to 91. Ms Deliège also observes that only the apply different conditions to the provision Commission has the power, under Arti- of equivalent services. Ms Deliège considers cle 85(3) of the Treaty, to grant an exemp- such conduct to constitute abuse inasmuch tion by virtue of which the contested sports as it adversely affects intra-Community rules would cease to infringe the Commu- trade and restricts free competition; she nity provisions on competition. However, refers in this respect to her submissions no such exemption has as yet been relating to Article 85 of the Treaty. requested and, in Ms Deliège's opinion, could not in any event be granted in respect of agreements or practices affecting Arti- cle 59 of the Treaty.

dispute may fall within the scope of the sively on objective and non-discriminatory Community rules on competition. They sport-related criteria, are consistent with submit that not only can a judoka not be the principles of free competition. For the regarded as an undertaking, but also that same reasons, it cannot be maintained that judo federations or associations cannot be the sports federations in question occupy a classified as undertakings or associations of dominant position which they abuse. undertakings, because their objective is not the pursuit of economic interests but the promotion of social and cultural ideals such as noble competition and the development of sport. In any event, even assuming that a judoka could be regarded as an undertak- ing, that would not be so in Ms Deliège's case; furthermore, even if an athlete such as 95. The Spanish Government takes an Ms Deliège were deemed to have the status intermediate view. It observes first of all of an undertaking by virtue of sponsorship, that, while it is true that athletes belonging that would not be sufficient for the federa- to sports federations may be regarded as tions to be classified as associations of undertakings or associations of undertak- undertakings, inasmuch as athletes are not ings, the determination of whether or not attached to those federations as providers that is so must be based on objective of advertising services, but because of their criteria and a close examination of each status as athletes. In other words, since dispute. As far as the present case is judo federations have no commercial or concerned, there is no evidence to show economic objectives, they cannot be regar- that the adoption of the contested rules by ded as undertakings or associations of the EJU is in fact equivalent to the pursuit undertakings, even if certain judokas may of an economic activity capable of giving be classified as undertakings. rise to the application of the Community competition rules. In any event, the Spanish Government adds, it is not clear that the contested rules do, or could, appreciably affect trade between Member States or restrict competition to an unjustified degree.

97. Finally, the Commission points out that the possibility cannot automatically be ruled out that the prohibitions laid down in Articles 85 and 86 of the Treaty may (1) Admissibility also be applicable to sports provisions which regulate or organise the selection of athletes for participation in tournaments on the basis of unobjective and discriminatory criteria. Selection which is based on results or introduces objectively justified restric­ tions, on the other hand, does not infringe 99. As far as this case is concerned, the Community competition law as long as it is Court's task is not to give a hypothetical not disproportionate to the purpose for answer to the question referred but to which it is intended. provide the referring court with guidelines which will be useful to it in resolving the dispute in the main proceedings. I am afraid, however, that this is not possible in the present case. The examination of an activity from the point of view of Commu­ nity competition law must be preceded by the combined analysis of a large amount of complex legal and factual data in order to (b) My position on the above issue be able to determine which (if any) under­ takings are involved, what form they take, what the particular market conditions arc, what (if any) level of intra-Community 98. The Court has not yet stated its posi­ trade is involved, whether there is a domi­ tion on the direct impact which the Com­ nant position, whether the conduct in munity competition rules may have on question constitutes abuse and, finally, sport. In Bosman, 66 the Court considered what effect the contested act or practice has on competition. That information, which is essential in order to determine 66 — Sec footnote 12. satisfactorily to what extent the contested

101. The Court has already noted, in its judgment in Telemar sicabruzzo,67 the 100. Certain aspects of the position I have increased need to define and analyse the taken may be open to question. It is facts in the main proceedings in order to ultimately debatable whether the same make it possible to answer questions relat- question may be addressed from the point ing to Community competition law. In that of view of Article 59 et seq. of the Treaty, case, it held that: '[i]t must be pointed out but not from the point of view of Article 85 that the need to provide an interpretation et seq. There is, however, an essential of Community law which will be of use to difference between the rules on freedom the national court makes it necessary that to provide services and those on the the national court define the factual and protection of competition. In the first case, legislative context of the questions it is the point of law is examined in its indivi- asking or, at the very least, explain the dual dimension: the question is whether the factual circumstances on which those ques- relationship between certain persons is that tions are based. Those requirements are of of supplier and recipient of a 'service' particular importance in the field of com- within the meaning of Community law. It petition, which is characterised by complex is therefore sufficient to ascertain the extent factual and legal situations.' 68 to which a sportswoman provides services only for remuneration in order to deter- mine whether the articles of the Treaty relating to freedom to provide services are in principle applicable to her. An activity 102. Consequently, in the absence of suffi- examined from the point of view of the cient factual and legal information to make rules on competition, on the other hand, a satisfactory answer possible, I believe that must be considered in its overall institu- the contested EJU rules cannot be examined tional dimension. The examination focuses in the light of the Community competition not on the assessment of an individual rules. In particular, it is not clear how many activity but on the description and delimi- tation of a global market. Defining the market conditions and the overall conduct 67 — Cited in footnote 5 above. 68 — Telemarsicabruzzo, cited in footnote 5 above, paragraphs of all those trading on it is clearly a more 6 and 7.

(2) Substance

103. As an entirely secondary submission, however, I shall make a number of points below as regards the extent to which the contested EJU rules are contrary to Com- 69 — See Case C-41/90 Höfner and Elser [1991] ECR I-1979, paragraph 2 1 . munity competition law. 70 — Point 256 of the Opinion of Advocate General Lenz in Bosman, cited in footnote 12 above. 71 — See Joined Cases 209/78 to 215/78 and 218/78 Van Landewyck and Others [1980] ECR 3125, paragraph 88. 72 — With regard more specifically to national federations, reference can be made to the judgment of the Court of First Instance in Case T-46/92 Scottish Football v Commission [1994] ECR II-1039, in which the Scottish Football Association was found to constitute an undertaking or an association of undertakings within the meaning of Arti- 104. First of all, it is my view that any cles 85 and 86 of the Treaty. Similarly, in its Decision 92/521/EEC of 27 October 1992 relating to a proceeding judoka in the 'high-level non-amateur' under Article 85 of the EEC Treaty (IV/33.384 and IV/ category — as described above — must be 33.378 — Distribution of package tours during the 1990 World Cup) (OJ 1992 L 326, p. 31), the Commission regarded as an undertaking within the stated that FIFA (International Federation of Association Football) and the Italian Football Federation were exercis- meaning of Article 85 of the Treaty. That ing an economic activity, in particular in the context of the distribution of tickets for the 1990 Football World Cup in term 'encompasses every entity engaged in Italy, and that they must therefore be regarded as under- an economic activity, regardless of the legal takings.

108. In my opinion it is unclear whether the contested sports rules lead to conse- quences of that kind. To what extent are the circumstances prevailing on the market in entertainment events and the market in advertising services, the markets involved in international judo tournaments, changed by the sole fact that an athlete cannot compete in those tournaments? I do not think there is any danger that the funda- mental choice made by the EJU to make certain international judo matches more representative will jeopardise freedom of trade between Member States at all, let 106. In any event, even assuming that the alone appreciably. The fact that the EJU has contested rules do constitute an agreement decided that the need for tournaments to be between undertakings or a decision of an representative should take priority over the association of undertakings, 7 3 an infringe- need for them to be open to those objec- tively best qualified to compete in them is

73 — As Advocate General Lenz rightly observes in Bosman, cited in footnote 12 above, the distinction between an agreement between undertakings and a decision of an 74 — Case 22/78 Hugin [1979] ECR 1869, paragraph 17. association of undertakings is of no importance in practice 75 — By way of guidance, see Case 28/77 Tepea v Commission (point 258 of the Opinion). [1978] ECR 1391, paragraphs 46 and 47.

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DELIÉGE

110. However, even on the basis of that broad interpretation, which I do not 109. However, two observations can be set endorse, I am still of the opinion that there against the above interpretation. First, it has been no infringement of Article 85(1) seems to be settled case-law that intra- of the Treaty in the present case, since there Community trade is affected even in cases has been no unlawful restriction of compe- where an agreement or a decision between tition. I would say first of all that I agree undertakings or associations of undertak- with the Commission's argument that mea- ings gives rise to an increase rather than a sures adopted by a sports federation in the decrease in the volume of trade between field of access for athletes to international Member States. 77 Consequently, the fact tournaments may constitute a restriction of that the contested EJU rules seek to ensure competition. It must also be recognised, that athletes from all Member States take however, that Article 85( 1 ) docs not apply part in a series of international tourna- to restrictions on competition which are ments, while this would be impossible essential in order to attain the legitimate without those rules, does not necessarily aims which they pursue. That exception is mean that there is no obstacle to trade based on the idea that rules which, at first between Member States. Secondly, the sight, reduce competition, but are necessary obstacle in question may be merely poten- precisely in order to enable market forces tial: in other words, it is sufficient that to function or to secure some other legit- imate aim, should not be regarded as infringing the Community provisions on 76 — The more representative a tournament is, the greater the revenue television broadcasting rights and advertising will competition. generate, since those tournaments will (potentially) attract public interest in all the Member States of the EJU. 77 — Case 56/65 Société Technique Mittlère v Maschinenbau Ulm [1966] ECR 235. 78 — C a s e 19/77 Miller [1978] ECR 131, paragraphs 14 a n d 1 5 .

113. Indeed, even if the Court were minded to accept that the EJU occupies a dominant 112. As Advocate General Lenz pointed position on the market in judo tourna- out in his Opinion in Bosman, 81 the above legal construction must be transposed to the relationship between sport and Com- 82 — In answer to an argument raised by Ms Deliège in this respect, I would say the following: the extent to which an munity competition law. Applying that agreement or a practice falls within the scope of Article 85 is a matter for the Court to decide. If, however, the Court were minded to accept that the agreement or practice in question fell within the scope of the prohibitions contained in Article 85(1), it would be for the Commission to decide 79 — Case C-250/92 DLG [1994] ECR I-J641. whether or not to grant an exemption under Article 85(3) 80 — DLG, cited in footnote 79 above, paragraphs 31 to 36. of the Treaty. 81 — Cited in footnote 12 above, point 268 et seq. 83 — See points 70 to 76 and 84 to 88 above.

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ments, the particular objectives pursued by 114. In conclusion, in the light of the the measures which it has adopted would evidence submitted for the Court's consid- still mean that its conduct could not be eration, I do not sec how the EJU rules classified as abuse and does not therefore could be regarded as contrary to the fall within the scope of the prohibitions requirements of Articles 85 and 86 of the contained in Article 86 of the Treaty. Treaty.

VI — Conclusion

115. On those grounds, I propose that the Court reply as follows to the questions referred for a preliminary ruling:

(b) Community law and, more specifically, Article 59 et seq. of the Treaty (now, after amendment, Article 49 EC et seq.) do not preclude sports rules which, first, require 'high-level non-amateur athletes' to obtain authorisa- tion from the national federation with which they are registered to take part in international tournaments not involving direct competition between national teams and, secondly, limit the number of athletes selected by the national federations to take part in those tournaments, in so far as those rules are justified on non-economic grounds deriving from the particular nature of certain sports matches and from the particular needs of sport in general; those grounds include, in particular, organising the selection of European national teams to take part in the Olympic Games and guaranteeing the representative nature of international matches as a constituent part of the balanced development of sport at pan-European level.

(c) In the absence of sufficient information, it is impossible to reply to the question referred as regards Articles 85 and 86 of the EC Treaty (now Articles 81 EC and 82 EC).

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