C-438/00

DEUTSCHER HANDBALLBUND

OPINION OF ADVOCATE GENERAL STIX-HACKL delivered on 11 July 2002 1

I — Introduction II — Relevant legislation

A — Community law

2. Article 38 of the Agreement provides:

'1. Subject to the conditions and modalities applicable in each Member State: 1. This case concerns the restriction, laid down in the rules of a sports association, on the number of players from non-members countries allowed to play in certain compe- titions. In particular, clarification is sought as to whether that restriction is compatible — treatment accorded to workers of Slo- with the Europe Agreement establishing an vak Republic nationality legally association between the European Commu- employed in the territory of a Member nities and their Member States, of the one State shall be free from any discrimi- part, and the Slovak Republic, of the other nation based on nationality, as regards part ('the Agreement'). 2This addresses a working conditions, remuneration or legal issue which has already been raised dismissal, as compared to its own before and resolved by a number of nationals, national courts. 3

' 1 . Taking into account the labour market situation in the Member State, subject to its legislation and to the respect of rules in '1. For the purpose of Title IV of this force in that Member State in the area of Agreement, nothing in the Agreement shall mobility of workers: prevent the Parties from applying their laws and regulations regarding entry and stay, work, labour conditions and establishment of natural persons, and supply of services, provided that, in so doing, they do not apply them in a manner as to nullify or impair the benefits accruing to any Party — the existing facilities for access to under the terms of a specific provision of employment for Slovak Republic this Agreement. This provision does not workers accorded by Member States prejudice the application of Article 54.'

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B — National law letter A may play in a league or cup match.

5. Extracts from Rule 15 of the Spielord- nung (federal regulations governing com- petitive games, hereinafter 'the SpO') of the Deutscher Handballbund e.V. (German Handball Federation) ('the DHB') in the version relevant to these proceedings read as follows:

(5) The marking of a licence with the letter '(1) The letter A is to be inserted after the A is to be cancelled from 1 July of the licence number on the licences of year if the player's country of origin players becomes associated within the meaning of Paragraph 1(b) by that date. The DHB shall publish and continually update the list of the States correspond- ingly associated.' (a) who do not possess the nationality of a State of the European Union (EU State),

10. In the referring court's view, the deci­ sive factor in the dispute is the manner in which the reference to Article 48 of the EC Treaty (now, after amendment, Article 39 EC) in Rule 15(1)(b) of the SpO is to be construed. 7. The Landgericht (Regional Court) Dort­ mund ordered the DHB to issue the player's licence requested, stating essentially by way of reasons that it followed from the inter­ pretation of the playing rules themselves that M r Kolpak was not to be treated under Rule 15 of the SpO as a player with the 11. The Oberlandesgericht interprets that nationality of a non-member country. The reference as covering only players who DHB appealed against that judgment. have exactly the same rights as EU nationals with regard to free movement of workers. Thus, M r Kolpak would not be entitled to an unrestricted player's licence without the suffix 'A'. After all, as pointed out by the referring court, Slovakia is not included on the list kept by the DHB pursuant to Rule 15(5) of the SpO. 8. The Oberlandesgericht (Higher Regional Court) H a m m , which has made the refer­ ence, takes the view that M r Kołpak has a right of action under German national law before the ordinary courts of the State and that, even if he is not himself directly or indirectly a member of the DHB, he is individually entitled under the SpO, as a 12. The referring court therefore seeks to player in the federal league under contract ascertain whether, notwithstanding the with a member club, to be issued with a provision to the contrary in Rule 15(1 )(b) licence to play if certain conditions are met. of the SpO, M r Kolpak is none the less

17. The referring court further assumes that Article 38 of the Agreement, like 14. According to that court, by restricting Article 39 EC, is directly applicable. If that Mr Kolpak's opportunities to play in is so, however, third-party effect will also matches, Rule 15(1)(b) in conjunction with have to be taken to exist in such a way that Rule 15(2) of the SpO also treats him Article 38 of the Agreement not only unequally as regards working conditions in applies to the action of public authorities so far as a player who has already secured but also extends to rules of any other lawful access to employment and is con­ nature aimed at the collective regulation of sequently no longer himself affected by an employment because, otherwise, the abol­ obstacle to employment does not, by virtue ition of public barriers could be rendered of that rule, enjoy the same opportunity as meaningless by obstacles resulting from that granted to other players likewise to associations or organisations not governed play in official; matches as part of such by public law exercising their legal auton­ employment. omy.

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18. The Oberlandesgericht therefore con­ 20. As the Commission correctly points cludes that Rule 15(l)(b) of the SpO out, it is not for the Court, in preliminary infringes Article 38 of the Agreement and ruling proceedings, to answer questions as that, since the other conditions are satis­ to whether a rule of national law is fied, Mr Kołpak is entitled to be issued with compatible with Community law. In light an unrestricted player's licence. of the observations made by the referring court, the Commission also points to the fact that the question referred is, strictly speaking, raised only in relation to nationals of non-member countries that are outside the European Economic Area (EEA).

V — Submissions of the parties exercise of his profession, in particular where club transfers were concerned, and that what mattered to him was the estab­ lishment of a lawful situation. He was, he stated, an employed person and benefited from the direct applicability of Article 38 of A — Admissibility the Association Agreement, which applies also to rules of sports associations. More­ over, Rule 15 of the SpO fell short of its objective because it did not apply to all 22. The Italian Government considers that clubs. the description of the facts in the order for reference is incomplete, in particular as regards the precise damage actually suf­ fered by the Slovak player. It was not clear from the order for reference either whether the player did in fact play at all or whether 25. The DHB, the Spanish Government the frequency with which he played in and the Italian Government essentially take matches actually depended on the associ­ the view that the SpO rules which arc the ation's rule rather than on strictly technical subject-matter of these proceedings are not decisions or considered views of the trainer. contrary to Article 38(1) of the Agreement. On those grounds, the Italian Government In their view, Article 38(1) is not directly proposes that the Court should declare the applicable and therefore does not confer reference for a preliminary ruling to be any (subjective) right on an individual, that inadmissible pursuant to Article 92 of its is to say, on a player. The DHB considers Rules of Procedure. that this follows from the previous decisions on the absence of horizontal effect of directives and from the fact that the Court has not as yet ruled that a provision contained in an association 23. Referring to case-law, the Commission agreement has direct effect. takes the opposite view that this case does not involve a hypothetical situation and that there has, on the contrary, been an adequate description of the facts.

29. Moreover, the DHB takes the view that At the hearing, the Italian Government Mr Kolpak had never been prevented from pointed out that the task of assessing the playing in a match on the basis of the legal provisions of a given Member State association's statutes and that the club falls to the relevant national court and that concerned merely sought to employ other the rule at issue in these proceedings can be nationals from non-member countries. justified on sporting grounds. Finally, the DHB submits that the judgment in Bosman5 does not preclude the appli- cation of the SpO rule at issue in these proceedings because that rule serves purely sporting purposes and the DHB's decision to introduce a nationality clause is pro- tected by the fundamental right to freedom 28. The DHB and the Spanish and Italian of association guaranteed by the German Governments submit further that the Basic Law. restricted scope of the prohibition of dis- crimination laid down in Article 38 of the Agreement, that is to say, the fact that Slovak workers are not afforded entirely the same treatment as EU citizens, is confirmed by the subject-matter, purpose and context of the Association Agreement, 30. At the hearing, the Greek Government which is the expression of a transitional referred to the Court's case-law on the phase in the process of bringing the Slovak direct applicability of agreements with Republic closer to the EU. The Court's non-member countries and to the case-law interpretation of freedom of movement for on professional sport. It also pointed to the workers, as provided for in Article 39 EC, fact that the scope of Article 38 of the and its application to the sports sector is Association Agreement is narrower than therefore, they argue, confined to EU that of Article 39 EC inasmuch as Article 38 citizens and nationals of EEA Contracting does not provide a comprehensive right to Parties. The Italian Government in addition free movement for workers. As Member takes the view that the EEA Agreement States may adopt rules in accordance with does not contain any restriction relating to Article 42 of the Association Agreement conditions and modalities. At the hearing, and as rules of sports federations are to be the Spanish Government again highlighted the significance of the proviso set out in Article 38(1) of the Association Agreement 5 — Case C-415/93 [1995] ECR I-4921.

3 1 . Conversely, the German Government and the Commission proceed on the basis that Article 38(1) of the Agreement is directly applicable and that Mr Kołpak may rely on that provision as against a federation such as the DHB. The reference to conditions and modalities, in their view, does not preclude the direct applicability of the prohibition of discrimination. 34. Having regard to the judgment in Bosman, the German Government and the Commission submit that Rule 15 of the SpO constitutes discrimination as regards conditions of employment but does not constitute a restriction on access to the 32. The nationality clause which is the labour market. subject-matter of these proceedings is, they argue, discriminatory and therefore infringes Article 38 of the Agreement which, amongst other things, relates to working conditions. However, only those Slovak workers who are lawfully employed in a Member State may rely on its direct applicability.

35. Such a restriction, they argue, is also by no means justified because the relevant nationality clause is neither appropriate nor reasonable for securing the establishment 33. So far as the direct applicability of of a reserve of high-quality G e r m a n Article 38 of the Agreement to sports players. German clubs are thus permitted associations is concerned, the German to field teams which do not include a single Government and the Commission take the German player. view that reference must be made to the Court's case-law on Article 39 EC. Other­ wise, the DHB could issue rules which, as 6 — Qu'il in fnotnoti' 4.

38. In view of those circumstances, the 4 1 . For the purpose of answering that question referred is admissible. question, reference may be made to the Court's case-law concerning the parallel provision in another Europe agreement 7 — Reference need only be made to Case C-254/98 TK- which likewise governs freedom of move­ Heimdienst [2000] ECR 1-151, paragraph 13 with further ment for workers, namely the case-law on references, and Joined Cases C-332/92, C-333/92 and C-335/92 Eurico Italia and Others [1994] ECR 1-711. Article 37 of the Association Agreement

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with Poland. In its judgment in Pokrzepto¬ prohibition of discrimination against wicz-Meyer, which was cited on several workers from the relevant association occasions during the hearing, the Court country. 9 In addition, Article 59(1) of the held in this regard that: Agreement with Slovakia, which is com- parable to Article 58(1) of the Agreement with Poland, cannot preclude direct appli- cability cither. 10

'In view of the foregoing considerations, the first indent of Article 37(1) of the 44. It must therefore be concluded that the Europe Agreement must be held to have first indent of Article 38(1) of the Agree- direct effect, so that Polish nationals who ment is directly applicable. assert it may also rely on it before the national courts of the host Member State.'8

2. Applicability of Article 38 of the Agree- ment to measures taken by sports feder- ations

48. The Court has also 'held that the abolition as between Member States of obstacles to freedom of movement for 51. Suffice it in this context to refer to the persons and to freedom to provide services Court's findings in Fokrzeptowicz-Meyer would be compromised if the abolition of as regards the Association Agreement with State barriers could be neutralised by Poland. The reasoning applied by the Court obstacles resulting from the exercise of with regard to the transposition of case-law their legal autonomy by associations or on Article 48 of the EC Treaty (now, after organisations not governed by public amendment, Article 39 EC) to the com- law'. 12 parable provision of the Association Agree- ment with Poland may also be applied in the present proceedings.

54. This means that the interpretation 56. As regards Mr Kolpak's status as a given to Article 48(2) of the EEC Treaty worker, regard should be had to the judg­ in the judgments in Walrave and Koch 1 6 ment in Lehtonen and Castors Braine, in and in Bosman I 7 can be transposed in the which the Court held as follows: present case to the first indent of Article 38(1) of the Agreement.

3. Substance of Article 38 of the Agreement 'As to the concept of worker, it must be borne in mind that, according to settled case-law, it may not be interpreted differ­ ently according to each national law but (a) The persons covered by that provision has a Community meaning. It must be defined in accordance with objective crite­ ria which distinguish the employment rela­ tionship by reference to the rights and duties of the persons concerned. The essen­ 55. It is at this point necessary to examine tial feature of an employment relationship whether Mr Kolpak, that is to say, in is that for a certain period of time a person performs services for and under the direc­ tion of another person, in return for which 14 — Pokneptowicz-Meyer (cited in footnote 4), paragraphs 32 he receives remuneration.' 18 and 33. 15 — Pokrzeptowicz-Mcyer (cited in footnote 41, paragraph 4 1 . 16 — Cited in footnote 11. 17 — Cited in footnote 5. 18 — Cited m footnote 11, paragraph 45.

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57. According to the findings of the Ober- member countries, nationals of EEA Con­ landesgericht and the documents submitted tracting Parties excepted, have only limited to the Court, Mr Kołpak entered into an opportunities to play in certain matches, employment contract with a club, namely that is to say, in league and cup matches in TSV Östringen e.V. Handball, with a view the federal and regional leagues. to carrying on gainful employment as goalkeeper for that club.

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64. It now remains to be established In this respect, the objection that clubs are whether this obstacle to the free movement free to field in matches nationals of EEA of workers can be justified objectively. Contracting Parties, which include the EU Member States, in particular cannot be disregarded.

65. It should first be mentioned that the rules at issue here are not, unlike in the case of Deliège, 21 selection rules which do not contain a nationality clause, nor are they rules meeting the objective of ensuring the 68. As regards the argument raised during regularity of sporting competitions, as in the proceedings to the effect that Rule 15 of Lehtonen and Castors Braine. 22 This case, the SpO in the version applicable in the in contast, involves a rule that restricts the main proceedings was, for purely sporting number of players who are nationals of purposes, necessary in particular to create a other countries, essentially, a rule cor- sufficient reserve of players of German responding to the one at issue in Bosnian, 23 nationality, it must be observed that the although that case did in fact relate to Court expressly rejected that argument in nationals of other Member States. Bosnian. 25

66. Moreover, there has been nothing in the proceedings to demonstrate that Rule 15 of the SpO is appropriate for the pursuit 69. Finally, it should be pointed out that of purely sporting objectives. up-and-coming young German players are not restricted to playing for a German club. They likewise have the chance to engage in this high-performance sport with foreign clubs.

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