Opinion of the Advocate General — ECLI:EU:C:1999:321
Date: 1999-06-22
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the Judgment 
1. Preliminary rulings — Admissibility — Need to provide the Court with sufficient 
details of the factual and legal context 
(EC Treaty, Art. 177 (now Art. 234 EC» 
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SUMMARY — CASE C-176/96 
2. Community law — Scope — Sport as an economic activity — Included 
(EC Treaty, Art. 2 (now, after amendment, Art. 2 EC)) 
3. Freedom of movement for persons — Workers — Treaty provisions — Scope — 
Sporting activity — Limits 
(EC Treaty, Art. 48 (now, after amendment, Art. 39 EC)) 
4. Freedom of movement for persons — Workers — Freedom of establishment — 
Freedom to provide services — Treaty provisions — Scope — Rules aimed at 
regulating gainful employment in a collective manner but not emanating from a 
public authority — Included 
(EC Treaty, Arts 48, 52 and 59 (now, after amendment, Arts 39 EC, 43 EC and 49 
EC)) 
5. Freedom of movement for persons — Workers — Definition — Professional sports­
man who is a national of a Member State and has entered into a contract of 
employment with a club in another Member State with a view to exercising gainful 
employment in that State 
(EC Treaty, Art. 48 (now, after amendment, Art. 39 EC)) 
6. Freedom of movement for persons — Workers — Rules laid down by sporting 
associations of a Member State making the participation of professional players from 
another Member State in certain competitions subject to compliance with transfer 
deadlines —· Not permitted in the absence of objective justification 
(EC Treaty, Art. 48 (now, after amendment, Art. 39 EC)) 
1. The need to provide an interpretation 
of Community law which will be of use 
to the national court makes it necessary 
that the national court define the 
factual and legal context of the ques­
tions it is asking or, at the very least, 
explain the factual circumstances on 
which those questions are based. Those 
requirements are of particular impor­
tance in certain areas, such as that of 
competition, where the factual and 
legal situations are often complex. 
The information provided in decisions 
making references must not only enable 
the Court to reply usefully but also give 
the governments of the Member States 
and other interested parties the oppor­
tunity to submit observations pursuant 
to Article 20 of the Statute of the Court 
of Justice. It is the Court's duty to 
ensure that that opportunity is safe­
guarded, bearing in mind that, by 
virtue of the abovementioned provi­
sion, only the decisions making refer­
ences are notified to the interested 
parties. 
(see paras 22-23) 
2. Having regard to the objectives of the 
Community, sport is subject to Com-
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LUHTONEN AND CASTORS BRAINE 
munity law in so far as it constitutes an 
economic activity within the meaning 
of Article 2 of the Treaty (now, after 
amendment, Article 2 EC). That is the 
case with the activities of professional 
basketball players, where they work as 
paid employees or provide services for 
remuneration and those activities are 
effective and genuine activities and not 
such as to be regarded as purely 
marginal and ancillary. 
(see paras 32, 43-44) 
3. The Treaty provisions concerning free­
dom of movement for persons do not 
preclude rules or practices in the field 
of sport excluding foreign players from 
certain matches for reasons which are 
not of an economic nature, which 
relate to the particular nature and 
context of such matches and are thus 
of sporting interest only, as in the case 
of matches between national teams 
from different countries. That restric­
tion on the scope of those provisions 
must, however, remain limited to its 
proper objective, and may not be relied 
on to exclude all sporting activity from 
the scope of the Treaty. 
(see para. 34) 
4. The Community provisions on freedom 
of movement for persons and freedom 
to provide services not only apply to 
the action of public authorities but 
extend also to rules of any other nature 
aimed at regulating gainful employ­
ment and the provision of services in a 
collective manner. The abolition as 
between Member States of obstacles 
to freedom of movement for persons 
and freedom to provide services would 
be compromised if the abolition of 
State barriers could be neutralised by 
obstacles resulting from the exercise of 
their legal autonomy by associations or 
organisations not governed by public 
law. 
(see para. 35) 
5. A professional basketball player who is 
a national of a Member State must be 
regarded as a worker within the mean­
ing of Article 48 of the Treaty (now, 
after amendment, Article 39 EC) 
where, having entered into a contract 
of employment with a club in another 
Member State with a view to exercising 
gainful employment in that State, he 
thereby accepts an offer of employment 
actually made, within the meaning of 
Article 48(3)(a) of the Treaty. 
(sec para. 46) 
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SUMMARY — CASE C-176/96 
6. Article 48 of the EC Treaty (now, after 
amendment, Article 39 EC) precludes 
the application of rules laid down in a 
Member State by sporting associations 
which prohibit a basketball club from 
fielding players from other Member 
States in matches in the national cham­
pionship, where they have been trans­
ferred after a specified date, if that date 
is earlier than the date which applies to 
transfers of players from certain non-
member countries, unless objective 
reasons concerning only sport as such 
or relating to differences between the 
position of players from a federation in 
the European zone and that of players 
from a federation not in that zone 
justify such different treatment. 
(see para. 60 and operative part) 
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