C-176/96

LEHTONEN AND CASTORS BRAINU

OPINION OF ADVOCATE GENERAL ALBER delivered on 22 June 1999 *

A — Introduction foreigners under which football clubs could play only a limited number of foreign professionals — both rules were held by the Court of Justice, in its judgment of 15 December 1995, to be incompatible with Article 48 of the EC Treaty (now, 1. In these proceedings for a preliminary after amendment, Article 39 EC) —, the ruling the Tribunal de Première Instance present case concerns provisions which (Court of First Instance), Brussels, seeks to impose time-limits on transfers of players know whether certain transfer rules which between clubs, if the player concerned is to apply to basketball players in Belgium are play for the new club during the current compatible with the rules on freedom of season. movement for workers and competition law. For the 1995/96 season, the season concerned in the main proceedings, there were three different transfer periods. Play- ers could be transferred between Belgian clubs only before the start of the season, in the period from 15 April to 15 May 1995. Players from the European zone, on the 3. The applicant in the main proceedings, other hand, could be transferred until professional basketball player Mr Lehto- 28 February 1996, and those from third nen, who is Finnish — and so comes from countries until as late as 31 March 1996. the European zone —, was not engaged until 30 March 1996, and the first two matches of his club and co-applicant Asbl Castors Canada Dry Namur-Braine (here- inafter 'Castors Braine') in which he played or was on the team sheet were therefore declared forfeited, and other sanctions threatened. 2. While the Bosman case 1 concerned the transfer fees which a club had to pay if it wished to engage a player from another club after the player's contract with that club had expired, and also the rules on

9. For the second zone, Rule 3(c) of the 6. Under Rule 1(b) of the FIBA Rules, the FIBA Rules provides that clubs in principle international transfer rules apply to all may not engage players who have already national federations equally. Under Rule played during the same season in another 1(c) of the rules, the national federations country in the same zone, if such a transfer are obliged, as regards national transfer takes place after the transfer periods deter- rules, to be guided by the international mined by FIBA. The actual wording of Rule rules and to establish their own rules 3(c) [translation from French] is: accordingly.

7. For the Belgian federation, three differ- ent zones apply with respect to the transfer rules: the national zone, the 'European' 'For the European zone, the deadline for zone, and that of third countries. The registration of foreign players is 28 Febru- I - 2686

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ary. After that date it is still permitted for 12. The club notified the FRBSB of the players from other zones to be transferred player's engagement by lefter of 30 March to a European club.' 1996, after the Finnish federation had released him on 29 March 1996. The contract itself — which provided for a remuneration of BEF 200 000, payable in four instalments of BEF 50 000 each, for the duration of the engagement, which was 10. As regards such transfers of players the months of April and May, and a win from third countries — that is, the third bonus of BEF 15 000 a time— was zone — Rule 144 of the Belgian FRBSB concluded on 3 April 1996. Rules provides in turn that:

18. The Tribunal de Première Instance, Brussels, refers the following question to the Court for a preliminary ruling:

16. M r Lehtonen and Castors Braine there- upon brought an application for interim measures in the Tribunal de Première Instance, Brussels, seeking essentially an order quashing the award of the match by Are the rules of a sports federation which 20-0 to Belgacom-Quaregnon and prohi- prohibit a club from playing a player in the biting the FRBSB, on pain of a monetary competition for the first time if he has been penalty, from imposing further sanctions on engaged after a specified date contrary to the club if it continued to play M r Lehto- the Treaty of Rome (in particular Arti- nen. In the context of those proceedings M r cles 6, 48, 85 and 86) in the case of a Lehtonen, Castors Braine and the defen- professional player who is a national of a dant FRBSB agreed that the club would not Member State of the European Union, play M r Lehtonen any more in the 1995/96 notwithstanding the sporting reasons put season, the FRBSB would suspend the forward by the federations to justify those sanctions which had so far been imposed, rules, namely the need to prevent distortion and the Belgian court would refer the case of the competitions? to the Court of Justice for a preliminary ruling.

19. In the proceedings before the Court of Justice M r Lehtonen, the FRBSB, the Belgian League, the Austrian, French, Ger- man, Greek and Italian Governments and 17. By decision of 23 April 1996 the judge the Commission have submitted written hearing urgent applications at the Tribunal observations. Apart from the Austrian and de Première Instance, Brussels, held that a German Governments, all those parties also

23. Mr Lehtonen and the FRBSB, on the other hand, maintain that the reference is indeed admissible. It is for the court Submissions of the parties making the reference to determine whether the reference is necessary for its decision and, in urgent proceedings, whether a decision is urgent. Moreover, the plaintiff still has an interest in legal protection, since 20. Doubts were expressed by the French financial sanctions against the player arc and Italian Governments and the Commis- still possible and a decision on the costs of sion as to the admissibility of the reference the main proceedings has not yet been for a preliminary ruling. made. Furthermore, taking a 'benevolent' approach, all that is needed for a decision of the Court of Justice may be gathered from the order for reference. It is apparent that Mr Lehtonen is a professional player in a professional club. The transfer periods 21. They submit, first, that the order for are clearly set out, the Community law reference contains hardly any information which may be applicable is sufficiently on the facts and its observations on the law defined, the grounds of justification put are also too concise. In particular, it is not forward by the FRBSB arc included in the clear from the order to what extent Mr order, and on the basis of the 'professional Lehtonen is to be classified as a worker, the player — professional club — federation' applicable transfer rules are not described constellation an assessment may also be in sufficient detail, and the information made from the point of view of competition needed for an assessment of the applicabil- law. They submit that the reference is ity of competition law is also missing. therefore admissible.

25. In the order in Case C-458/93 Saddik 4 the Court emphasised in addition that the content of the order for reference serves not 27. The order for reference thus contains all the information needed to give a useful 3 — [1993] ECR I-393, paragraph 6. answer to the question of the applicability 4 — Order of 23 March 1995, [1995] ECR I-511, paragraph 13. of the provisions on freedom of movement

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for workers, and the reference for a pre- (b) Continuation of the proceedings liminary ruling is admissible in that respect.

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Castors Braine in the 1995/96 season. In 2. Discrimination on grounds of national- other respects too, the provisional arrange- ity (compatibility with Articles 48 and 6 of ment between the parties can — as regards the EC Treaty) the bringing into effect of hitherto suspen- ded sanctions by the FRBSB against Castors Braine — no longer be altered with any practical effect, if Castors Braine — as submitted by the Commission — have gone 32. Since Article 6 of the EC Treaty applies into liquidation. The concrete assessment only without prejudice to any special of those facts is, however, not for the Court provisions in the Treaty and Article 48 of Justice but for the referring court alone. constitutes a special rule on freedom of In any event, it appears from the order for movement for workers, there is no need to reference that at least the decision on costs consider whether the rule in question is remains to be made. It may be supposed compatible with Article 6. that the probable outcome of any substan- tive proceedings would influence that deci- sion. Consequently, answering the question referred is still of importance for a judicial decision.

33. In so far as the parties address the question of discrimination, it is not dispu- ted that the rules of sports federations fall in principle within the scope of Community law where they concern economic relation- ships. 8

Belgian league is not the subject of the deprive players at certain times of any question referred. It is also undisputed that possibility of taking up employment. The Community law contains no rule which exercise of the sport of basketball by a might, from the point of view of nation- professional player with a professional club ality, prohibit treating players who have falls within the scope of Community law, previously played for clubs in other Mem- since according to the case-law of the Court ber States less favourably than players who of Justice professional sport forms part of have previously played for clubs outside the the economic activities mentioned in Arti- European zone. 9 There is therefore no cle 2 of the EC Treaty (now, after amend- occasion to consider the prohibition of ment, Article 2 EC). Since the present case discrimination against workers under Arti- concerns the economic aspects of sport and cle 48 of the EC Treaty or the general the exercise by Mr Lehtonen of a funda- prohibition of discrimination under Arti- mental freedom, the application of Arti- cle 6 of the EC Treaty. cle 48 of the EC Treaty is not precluded by the freedom of association of the clubs and the resulting autonomy of the federation, nor by the principle of subsidiarity. It is also settled case-law of the Court that Arti- cle 48 can apply to private legal relations.

3. Obstruction of freedom of movement for workers under Article 48 of the EC Treaty 36. The Belgian League submits, relying on the Walraue and Dona judgments, thai- Article 48 of the EC Treaty is not applic- able to the present case, since the rules of the FRBSB and FIBA are based on non- Submissions of the parties economic and purely sporting grounds. 10

38. Italy considers that the national court 41. As follows from the Court's case-law, gives no information on whether the player having regard to the objectives of the is to be regarded as a worker at all. Community, sport is subject to Community law in so far as it constitutes an economic activity within the meaning of Article 2 of the EC Treaty. 12 If the Court then goes on to state that this applies to the activities of professional or semi-professional footbal- lers where they are in gainful employment or provide a remunerated service, the same must be true of professional basketball players in a similar situation. 39. Greece assumes that Article 48 of the EC Treaty applies in principle to rules such as those made by the FRBSB and FIBA. The present case, however, concerns a purely internal Belgian situation, since a Belgian player is just as ineligible to play if he misses the transfer deadline. According to 42. Since it is further not necessary — for the settled case-law of the Court, Article 48 the Community provisions on freedom of does not apply to purely internal situations. movement for workers to apply — for the Freedom of movement for workers, as employer to be an undertaking, all that is protected by Article 48, is also not affected. required being an employment relationship or the intention to create one, Article 48 of the EC Treaty must be taken to apply in principle in the present case.

43. The Italian Government is indeed right 40. France, Spain and the Commission, on to say that the order for reference contains the other hand, consider that freedom of movement for workers is affected. Ger- many and Austria concede at least the 12 — Bosman, cited in note 1, paragraph 73, and Walrave, cited possibility that it may be affected. in note 8, paragraph 4.

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cannot, thus, be deemed comparable to the ised by the fact that they do not necessarily rules on selling arrangements for goods affect those who import or export a which in Keck and Mithouard were held to product, but only the subsequent sale to fall outside the ambit of Article 30 of the the final consumer. A foreign producer does Treaty...' 16 not therefore, with respect to selling arrangements, have to alter his product according to the sales market he has in mind. Selling arrangements thus as a rule affect trade in goods only very indirectly. If trade in goods between Member States were nevertheless affected to a greater degree than internal trade within the Mem- ber State, then the formulation used in 47. That finding applies correspondingly to Keck and Mithouard would no longer the transfer periods: they not only affect the apply, as its very wording shows. Further- exercise of basketball within the jurisdic- more, product-related requirements always tion of the FRBSB, but also at certain times come under free movement of goods, prevent access by players who have pre- according to the Court's case-law. 18 Rules viously played in another federation and on on the exercise of a profession are much being transferred to Belgium (necessarily) closer to product-related rules than to rules wish to exercise their right to freedom of on selling arrangements. Rules on exercise movement. This is therefore a rule on must, like product-related rules, be com- access, which even on this view should be plied with directly by a citizen of the Union assessed entirely under Article 48 of the who wishes to assert the fundamental free- Treaty. dom under Article 48 of the EC Treaty. He must take account of new rules of exercise and acquire corresponding qualifications, possibly after every cross-frontier change of employment.

respect to the free movement of goods. (c) Justification of the obstacle According to Keck and Mithoitard, the only selling arrangements which are compatible with free movement of goods are those which apply in the same way to all the products concerned or affect national and foreign products in the same manner in fact and in law. That fundamental freedom continues to apply, on the other hand, to Submissions of the parties selling arrangements which have a specially burdensome effect on trade in goods. Admittedly, freedom of movement for workers also has a wide definition — comparable to the Dassonville formula — but it is already restricted by the fact that freedom of movement may be relied on 51. Mr Lehtonen and Castors Braine do only in a cross-border situation. That not accept that the restriction of freedom of starting point for reliance on freedom of movement for workers is justified in order movement already has a similar restrictive to protect sporting competition from dis- effect to that under Keck and Mithoitard tortions. They argue that restricting trans- for selling arrangements. fer possibilities cannot guarantee that com- petition is preserved. Rather, competition is distorted if clubs cannot compensate for any unavailability of important players. The rules also entrench the existing imbal- ance between clubs. Rich clubs can engage players to have in reserve, while poor clubs, on the other hand, without the possibility of transfers during the season, arc exposed to all the blows of fate.

53. Finally, the Court must balance the particular time by the signing of new interest in undistorted sporting competition players. The phasing of the transfer periods against the players' interest in employment. for players from the European zone and Freedom of movement for workers is based players from other countries is intended, in on the EC Treaty and at the same time particular, to stop players from being able embodies the fundamental right of freedom first to complete a national championship to pursue a profession, in particular the free in order then, by a transfer in the closing choice of employer, as the Court held in stage of another championship, to distort Katsikas and Others. 20 Sporting competi- competition there. The deadline prevents tion, on the other hand, cannot be derived players from being enticed away from clubs directly from the Treaty, but takes its of other federations in the European zone legitimation in Community law solely from which are still in decisive stages of the the Bosman judgment. 21 competition. The FIBA deadline is chosen in such a way that it comes before the end of a considerable number of European championships which end early. Cham- pionships of other countries, in particular the USA, end later, on the other hand.

54. They submit, in the alternative, that any transfer periods which might be justi- fied would have to be proportionate tem- porally, that is, determined with great restraint. There must be no difference in treatment between different players. Finally, such a system requires legitimation by means of legislation. 56. In the opinion of the Belgian League too, a temporal restriction of transfer possibilities is necessary, as otherwise there will be a threat of competition being distorted in the league.

62. In the Commission's opinion, the trans- 58. Austria too refers to the risk of players fer deadline could be justified in accor- moving inside a league, if it has not yet dance with the Court's findings in the been decided. There is otherwise a danger Bosman judgment. 23 If after a certain date that success will be decided by financial a team can no longer be strengthened by capability alone. A league requires a certain new players, that guarantees to a certain continuity of the teams taking part. extent equality of chances and uncertainty of results. 24 At the hearing the Commission concentrated in particular on the phasing of the transfer periods. The transfer deadline of 28 February for European players is appropriate for preventing distortion of competition only if competition cannot be distorted after that deadline by transfers 59. France submits that the transfer rule is from third countries. justified on sporting grounds, 22 namely the need for a sporting competition to be carried on by teams which are put together for a season, not from match to match on the basis of financial possibilities and the availability of players. Opinion

(a) Preliminary observation

60. According to Greece, the transfer periods are justified on grounds of the public interest, namely avoiding distortions of sporting competition, ensuring equality of 63. The Court held in Bosman specifically chances and openness of results, and pre- on sporting grounds of justification for serving a financial balance between clubs. 23 — Cited in note 1. 24 — See also the Commission staff working paper of 29 Sep- 22 — In this connection France refers to the 29th Declaration tember 1998, 'The development and prospects for Com- annexed to the Treaty of Amsterdam, emphasising the munity action in the field of sport', http://curopa.eu.int/ social significance of sport, in particular its role in forging c o m m / d g 1 0 / s p o r t / p u b l i c a t i o n s / d o c _ e v o l _de.html, identity and hringing people together. point 4.1.2., Sport and competition policy.

65. Besides, as Mr Lehtonen and Castors Braine submit, transfer periods ensure nei- ther that a balance is created, nor a certain equality of opportunity and uncertainty of results. A transfer deadline merely, when it (b) The federations' organisational authority expires, creates uncertainty as to the suc- cess of the arrangements made until then. In the further course of the season it then as a rule becomes clear what the balance of power is within a league. The restriction of transfers then leads to the preservation of

67. The idealistic justification lies in an 25 — Bosman, cited in note 1, paragraph 106. analogy between team competitions and

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26 — See also the 29th Declaration annexed to the Treaty of Amsterdam (Declaration on sport), according to winch the 69. It is that necessity which enables the hodies of the European Union are to listen to sports associations when important questions affecting sport art- sporting associations to interfere with the at issne.

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(c) Comparability of results of matches 73. First, it must be observed that these transfer deadlines do not intervene at the

27 — Cup competitions, which in principle do not imply comparable results but only presuppose success in the 72. A justification may, however, follow various individual matches, represent a completely differ- ent form of competition, which generally takes place in from the much more objective risk to parallel to the league championship.

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start of the season but during it, that is, great weight as both a fundamental free- they are 'delayed'. An arbitrarily fixed dom and a basic right. The basic right to transfer deadline would not be appropriate the free choice of employer was stressed by for ensuring comparability of results. Even the Court in Heylens: '... free access to at this stage, then, justification would fail. employment is a fundamental right which the Treaty confers individually on each worker in the Community'. 28

74. The situation would be different, how- ever, if the transfer deadline was not set arbitrarily, but was adjusted to the course of the competition in such a way that comparability of results was ensured at 77. Mr Lehtonen and Castors Braine are least after the transfer deadline expired. also correct in emphasising the particular Possibilities here are, for instance, the start conditions of the occupation of profes- of the second half of the season when all sional sportsman. The professional activity teams are due to play each other, or of play- of a sportsmen is as a rule limited to a offs, and even probably each new round in period of from ten to at most twenty years; the case of elimination competitions. it may indeed be very much shorter, for all sorts of reasons. Remuneration is not very high, precisely in the less popular sports, but also in less successful clubs.

elude sporting rules, in so far as they are transfer deadlines are justified. Transfers of based on purely sporting grounds. 29 Simi- players to teams in the Belgian League are lar reasoning is apparent in the decision of subject to different deadlines, depending on the E u r o p e a n Commission of H u m a n the federation to which the player's pre- Rights on the application by Mario Azzo- vious club belongs. Within a season, any pardi against Malta. 30 That decision con- transfer between Belgian clubs is exclu- cerned a change in the rules of two rowing ded. 3 1 Players of other clubs in the Eur- events, restricting participation to a max- opean zone — such as M r Lehtonen — imum of three races in each case, against may be transferred to a Belgian club up to which M r Azzopardi, who had previously 28 February, on the basis of a FIBA transfer successfully taken part in up to five indivi- deadline. Finally, players from clubs in dual races in each case, brought an — third countries may still be transferred to unsuccessful — complaint. a Belgian club up to 31 March, on the basis of the FRBSB transfer deadline.

79. Delayed transfer deadlines may be reasonable if they are not set arbitrarily. A transfer deadline may thus be justified on 81. The prohibition of transfers between sporting grounds in the public interest if the clubs in the Belgian League is not material deadline for sportsmen w h o have pre- to the present case. It does not affect Mr viously played for clubs in other Member Lehtonen's freedom of movement in this States is chosen in such a way that compar- case. N o r is it of any discernible signifi- ability of the results of that competition is cance for assessing the justification of the not affected by the transfers which take effect on that freedom of the transfer place before the deadline. deadline of 28 February.

comparability of results. If, however, as a 84. At the end of a championship, however, result of a phased transfer deadline, players not merely individual players, but at least who have previously played in third coun- in theory a large number of attractive tries can still be transferred to teams in the players become available on the market. Belgian League after this is prohibited for The follow-on transfer of a large number of players who have previously played in players between federations whose cham- other European States, then the compar- pionships end early and federations whose ability of results is still jeopardised. Pre- championships end late would appear pro- cisely in basketball, players from third blematic. The migration of, say, ten top countries — good players from the USA players of a national league to the four best- or Brazil, perhaps •— could significantly teams of another league would no doubt influence the existing balance within the fundamentally alter the previous balance of Belgian League. Consequently, phased powers. Regardless of comparability of transfer periods of this kind are no longer results, such a development would largely suitable for ensuring comparability of reduce ad absurdiini the ideal of an analogy results. On the basis of what has been said between individual and team sports. If the above, then, the stages in a system of phased transfer deadline were to serve the phased transfer periods which prevented purpose of preventing such a 'transfer the transfer of players from other Member movement', it might develop a justifying States before the end of the last stage would effect going beyond the mere organisational no longer be proportionate. authority of the sporting associations. From the point of view of Community law, that objective ought to be recognised in principle simply because it is Community law which has first made it possible to play a large number of players from other Member States. 12 As long as the sports organisations were able to limit the number of foreign players, the risk of a 'follow-on transfer movement' was also kept within bounds.

86. Appropriateness would be excluded if there existed even one championship which was not covered by the phased deadline and there was reason to fear a 'follow-on transfer movement' from there. 33 Appro- priateness would be at least doubtful if the 88. Considerable doubts are also indicated phased deadline with respect to champion- as regards the necessity of the phased ships of very high standard intervened only transfer deadline. If it really is to be very belatedly. There would then be a risk appropriate, then precisely in the case of of a 'follow-on transfer movement' if teams the strong championships with early dead- in those leagues no longer had any targets lines referred to above it catches, as well as to play for in the competition, because they 'follow-on transfer movements', also trans- could not affect the outcome of the cham- fers of players who wish for other reasons pionship. In such cases a transfer of several to leave their club although the club is still top players could be attractive for those in the sporting competition of the cham- concerned even some time before the end of pionship. No reason can be seen why those the championship. players should be disadvantaged compared to players from third countries.

pionship. A starting-point might be the ties for players and the transferring clubs existing FIBA Rules. Since under the FIBA could argue for a follow-on transfer move- Rules a player requires a release from his ment. Experience abroad could also appear club in any case, that club could determine attractive. In the present case it is not- whether there is evidence of a 'follow-on evident that there is a risk of a 'follow-on transfer movement' or whether the transfer transfer movement'. The practical difficul- is taking place for reasons of another kind. ties appear considerable and the sporting That procedure would, however, be more gain doubtful. Problems could arise with difficult to carry out than the phased the integration of new players shortly transfer period, and would be exposed to before the end of a competition, and with attacks by those who wish to take part in a the long-term planning of all the clubs 'follow-on transfer movement'. Decisions involved. would have to be made quickly and there would presumably be a possibility of appealing. These difficulties argue rather against rejecting even the necessity of phased transfer periods.

92. Taking that situation into account, the extremely unfocused means of a phased transfer deadline cannot appear justified 90. Phased transfer periods are in any case, for preventing a not very probable 'follow- however, not reasonable. Only as relatively on transfer movement', when set against complex systems of rules are they suitable the highly important protected right of at all for achieving their objective, and in so freedom of movement for workers. If the doing they also cover transfers which ought national court were given more convincing not to be prevented at all. They are there- information on the risk of a 'follow-on fore to be regarded as rules of a relatively transfer movement' and the precision of the low quality for achieving the objective. effect of phased transfer periods, it would then be for that court to reconsider the question of justification on that basis.

4. Applicability of Articles 85 and 86 of the between Member States is affected in so far EC Treaty as the rules on transfer periods affect all clubs and basketball players within the European Union and adversely affect the engagement of players from other Member States. Any economic exchange between 94. It must be stated to begin with that the the Member States is to be regarded as applicability of the rules on competition is trade here. Competition is restricted in two being considered only in the alternative. ways. First, players from other Member First, the reference for a preliminary ruling States cannot compete with Belgian players is inadmissible in this respect, as shown in or players from third countries and so point 28 above. Second, the contested pro- apply for employment with Belgian clubs. visions on transfer periods — as has been Second, the clubs' possibilities of compet- shown — infringe the rules on freedom of ing with each other to engage the players in movement for workers under Article 48 of question are restricted. That restriction of the EC Treaty, in so far as citizens of the competition affects essentially the 'market Union may rely on that fundamental free- in players', since the players are workers dom. The Court already held in Bosman who wish to perform contracts of employ- that there is no need to rule on the ment or who provide services within the interpretation of Articles 85 and 86 of the meaning of Article 59 of the EC Treaty EC Treaty when there is already a breach of (now, after amendment, Article 49 EC). In Article 48 of the EC Treaty. 35 the absence of an exemption under Arti- cle 85(3) of the EC Treaty, the rules on transfer periods are to be regarded as incompatible with the common market and as prohibited under Article 85 of the EC Treaty.

regarded as the entire market within the players, trade between Member States is Community. In that the transfer rules in not affected, and no position of economic question restrict the players' possibilities of power indicates an abuse of a dominant freely changing employer outside certain position. periods, there is an abuse of a dominant position. It is also possible, however, to determine the relevant market as that in which the Belgian clubs which play in the first division are active. Those clubs then joined together in the Belgian League to exclude any competition in the Belgian market. The dominant position on the market then follows from the monopoly position which the clubs — united in the federations — have. Since this conduct 98. According to the German Government, makes it impossible for other clubs to the rules of competition law arc not approach certain 'production factors', that applicable to the present case, since in is, basketball players, in order to engage particular there is no trade in basketball them for the current season, there is an players between Member States. In the abuse of a dominant position. alternative, the transfer periods are in any case a necessary measure in order to make a competition between the clubs possible at all.

100. In the Commission's view, the appli- cation in principle of Articles 85 and 86 of the EC Treaty to the present facts is beyond doubt. Both the players and the clubs constitute undertakings, with the conse- 101. In the context of Article 85(1), it must quence that the federations may very well be examined whether the acts at issue are be associations of undertakings. Trade attributable to undertakings and whether between Member States is affected in so they are liable to affect trade between far as the freedom of clubs to enter into Member States and competition. contracts with professional players even during a current league season is restricted. The same applies to restriction of competi- tion within the common market. The question arises, however, whether the rules concerning transfer periods are necessary for organising a sporting competition between the clubs. In principle they are not unsuitable for achieving that objective; 102. According to the Court's case-law, in however, it follows from the phasing of the the context of competition law, the concept transfer periods that the rules as a whole of an undertaking encompasses every entity are disproportionate. In the context of engaged in an economic activity, regardless Article 86 of the EC Treaty, a dominant of its status and the way in which it is position can be held only by the clubs financed.36 Despite the lack of information gathered together in the league. The rele- from the national court, it may be pre- vant market could then only be the market sumed — also on the basis of the submis- in which players are engaged. For there to sions of the parties — that the professional be a dominant position in the market, clubs organise sporting events for paying however, there must also be an economic spectators, market television transmission connection between the clubs capable of rights and obtain income by means of giving rise to an oligopolistic structure in advertising. They are thus indeed engaged the market. The information provided by in an economic activity. the referring court is too concise overall, however, for such conclusions to be reached. It must be taken that neither 36 — Case C-41/90 Höfner and Elser v Macrotron [1991] ECR Article 85 nor Article 86 of the EC Treaty 1-1979, paragraph 21; Joined Cases C-159/91 and C-160/91 Poucet and Pistre v Assurances Générales de precludes the provisions in question on France and Others [1993] ECR 1-637, paragraph 17; and Case C-55/96 Job Centre [1997] ECR I-7119, paragraph transfer periods. 20 et seq.

103. By contrast, however, there are no takings, is obstructed by these transfer indications in the present case as to how fat rules, there is probably also a restriction the FRBSB and FIBA are themselves eco- of competition within the meaning of nomically active. But since the FRBSB too Article 85( 1 ) of the EC Treaty. A transfer is at least made up of economically active period prevents clubs from increasing the clubs, it is to be regarded in any case as an attractiveness of their 'product' by taking association of undertakings within the on new players during a certain period. meaning of Article 85(1) of the EC Treaty. It is not necessary for the association to pursue an economic activity of its own. FIBA accordingly acts as an association of associations of undertakings. The rules both of the FRBSB and of FIBA are there- 106. The provisions on transfer periods fore decisions of associations of undertak- could, however, be necessary for creating ings. and guaranteeing a competition between the clubs at all. As may be seen from the grounds of justification already put for- ward in connection with the examination of freedom of movement for workers and effects thereon, the transfer rules as a whole are capable of calling into existence and then guaranteeing fair competition between 104. It is also the case that trade between the clubs. Member States may be affected. The con- cept of trade must not be restricted to trade in goods alone but given a wide interpreta- tion. 37 It must therefore be possible to find that trade is affected in a case in which the exercise of fundamental freedoms is 107. The Court rejected a purely formal obstructed. Transfer periods generally are application of the competition criterion in liable to affect trade between Member the DLG judgment. 38 According to thai- States in so far as they may at certain times judgment, the rules of competition law are prevent changes of club by professional not to be applied in the abstract, but always players within the Member States and so — by reference to the particular provisions as shown above — restrict freedom of and the economic conditions prevailing in movement for workers. the relevant market. Competition-restrict- ing rules such as in the present case which have the effect of promoting the establish- ment of competition on the market in question may therefore be compatible with Articles 85 and 86 of the EC Treaty if they are necessary and reasonable for achieving that objective. 105. Since the development of economic activities by the clubs, that is, by under- 38 — Case C-250/92 Goiimp-Klim Grovvareforening v Dansk 1.amlbrues Grovvareselskab füI.GI 11994] EC.'R l-žf>>ll, 3 7 paragraph .?(> et seq.; sec also Ciase -12/84 Reima ami — Case 172/80 Ziichncr v Bayerische Vercmsbank 119811 Olheis v Commission [I98.S1 E.CU 254.S, paragraph 19 et E C R 2 0 2 1 , paragraph 18. ' sceļ.

108. That reasoning may be transposed, at (b) Article 86 of the EC Treaty least partially, to the present situation. In so far as the present transfer deadlines do not disproportionately affect freedom of move- ment for workers, they guarantee compar- ability of results of matches within a 111. The applicability of Article 86 of the season. That objective is decisive for the EC Treaty to the present case presupposes competition between clubs which consists first the existence of a dominant position. 39 in increasing the attractiveness of their matches. Transfer periods are therefore compatible with Article 85 of the EC Treaty to the extent that they may be reconciled with freedom of movement for workers. 112. It follows from the Court's judgment in Centro Servizi Spediporto that mere participation in a body which coordinates competition does not suffice for the con- clusion that there is a collective dominant position. The undertakings must rather be so closely linked that they can adopt the same conduct on the relevant market. 40 109. No exemption has been granted, so there is no question of the application of Article 85(3) of the EC Treaty. 113. In the present case the question thus does not arise of whether on the basis of their cartel the clubs actually could be linked so closely together, but of whether they are linked so closely that they can act independently of the players. 110. To sum up, it may be said that transfer deadlines are not compatible with Arti- cle 85 of the EC Treaty if in particular the comparability of results in a season would be affected by transfers of players before 114. However, the statements of fact and the expiry of the transfer deadline and the law by the referring court needed to answer transfer period is shorter for professional that question are lacking. Whether Arti- sportsmen who previously played for a club cle 86 of the EC Treaty applies to the main in another Member State than for profes- proceedings must therefore be left open. sional sportsmen who previously played in third countries. It must be pointed out once more that this conclusion is based solely on 39 — On the definition of a dominant position, see Case 85/76 Hoffman-La Roche v Commission [1979] ECR 461, hypothetical considerations, as the order paragraph 38, and also Joined Cases T-68/89, T-77/89 for reference does not contain enough and T-78/89 SIV and Others v Commission [1992] ECR II-1403, paragraph 359, and Case T-102/96 Gencor v factual information for a definitive exam- Commission [1999] ECR II-753, paragraph 273. ination with respect to Article 85 of the EC 40 — Case C-96/94 Centro Servizi Spediporto v Spedizioni Marittima del Golfo [1995] ECR I-2883, paragraphs 32 Treaty. to 34.