Opinion of the Advocate General — ECLI:EU:C:1999:147
Date: 1999-05-18
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Freedom to provide services;Dominant position
Procedure: Reference for a preliminary ruling
Origin: Belgium

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-
louris, History of the Olympic Games, Ekthotikí Athinón 
(Athens Publishing House) 1976, p.108 ff. 
49 — In particular in sports such as football and basketball. 
50 — This is true at least of the judo tournament in Paris, 
according to the information which Ms Deliège has 
supplied to the Court, and which has not been called into 
question by the other parties. 
I - 2574 
DELIÉGE 
57. Let us therefore examine Ms Deliège's 
circumstances in greater detail: by partici­
pating in Category A judo tournaments, she 
is said to provide services to the holders of 
the television broadcasting rights and/or to 
those who use such events for advertising 
purposes; the intermediaries for the services 
are the tournament organisers who, as 
such, obtain revenue from the television 
broadcasting rights and from advertising. It 
is true that Ms Deliège does not receive any 
remuneration direct from the recipients of 
her services, but she does receive, by way of 
consideration from the organisers, the right 
to participate in those tournaments; by 
participating, she satisfies her sponsors and 
is then rewarded by them in various ways. 
The fact that this is not a provision of 
services in its traditional form — whereby 
the supplier provides a service direct to the 
recipient and is remunerated by him — 
should not necessarily lead us to the 
conclusion that the relationship between 
athletes, tournament organisers and televi­
sion b roadcas te r s or adver t i sers , as 
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. 
58. I think it appropriate to refer in this 
respect to the Opinion of Advocate General 
Mancini in Bond van Adverteerders 51 
which, it will be recalled, concerned the 
distribution by cable network of television 
programmes containing advertising. Inter­
preting Articles 59 and 60 of the Treaty 
and the case-law of the Court, the Advo­
cate General concluded that, in order for 'a 
service' to exist, the provision of the service 
did not have to give rise to payment on the 
part of the recipient. He also pointed out 
that 'in making these observations it is not 
my intention to deny that the participants 
in the broadcasting, transmission and 
reception of a signal — the broadcaster, 
the advertiser, the owner of the satellite, the 
cable operator, the viewer — pursue an 
economic interest or, in other words, that 
the supply of the service has an economic 
aspect. I simply wish to point out that, 
precisely because manifest interests are at 
stake, the supply of services does not cease 
to be economic in nature where, as in this 
case, no transfer of money takes place 
between the broadcaster and the viewer. 52 
Indeed, in my opinion, the supply of the 
service may still be economic in nature even 
where there is no remuneration at all (as in 
the case of charitable programmes in which 
well-known sportsmen or actors take 
par t . . . ) ' .53 
59. Applying the above observations to Ms 
Deliège's case, the conclusion can be drawn 
that the economic nature of her activity is 
not in any way affected by the fact that she 
does not appear to be remunerated for her 
services in international judo tournaments 
by the tournament organisers, their spon­
sors, or the holders of the television broad­
casting rights. To reiterate the view 
expressed by Advocate General Mancini, 
51 — Cited in footnote 13 above. 
52 — My emphasis. 
53 — Point 8 of the Opinion of Advocate General Mancini in 
Bond van Adverteerders , cited in footnote 13 above. 
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OPINION OF MR COSMAS — JOINED CASES C-51/96 AND C-191/97 
where the interests at stake are many and 
complex, as indeed they are in the case of 
the sporting events referred to by Ms 
Deliège, the economic nature of the activity 
may derive from other factors, even if no 
transfer of money takes place between the 
provider and the recipient of one of the 
many services involved. 
60. To recapitulate, it is my opinion that 
the participation of a high-level non-ama­
teur sportswoman with her own sponsors 
in international tournaments which involve 
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. 
(b) Conformity of the contested EJU rules 
with Article 59 et seq. of the Treaty 
61. Assuming, on the basis of the foregoing 
considerations, that Ms Deliège's practice 
of judo, precisely because of the special 
conditions under which it takes place, 
constitutes an economic activity and is 
therefore protected by the Treaty, the 
question arises as to the extent to which 
the EJU rules on the basis of which Ms 
Deliège was excluded from certain interna­
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
men and sportswomen who can be put 
forward by each national federation is 
limited to one (or, exceptionally, two) per 
category. 
62. The EJU rules must be examined from 
two angles: first, it is essential to determine 
the extent to which they fall within the 
scope of Article 59 of the Treaty or — 
inasmuch as they relate purely to sports 
matters — whether they fall completely 
outside it. Secondly, in the event of a 
negative answer to the latter question, it 
will be necessary to examine those rules 
from the point of view of the conditions 
and restrictions imposed by Article 59 of 
the Treaty. The question will then arise as 
to the extent to which the system for 
selecting athletes is valid and does not 
constitute an obstacle to freedom to pro­
vide services. 
I - 2576 
DELIÈGE 
(1) Exclusion of the application of Arti­
cle 59 to the contested rules 
63. There are two possible legal bases for 
the argument that the EJU rules are not 
subject to the requirements of Article 59, 
which I shall examine below. 
(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 
contested measures adopted by the EJU do 
not in themselves impede access to the 
provision of services (assuming of course 
that participation in the judo tournaments 
in question constitutes such a 'service' in 
Ms Deliège's case), but affect only the way 
in which those services are provided. Mea­
sures which relate to the 'manner of 
providing' a service — such as those which, 
without discrimination, govern the 'selling 
arrangements' for a product — do not fall 
within the scope of Articles 59 and 30 of 
the Treaty (now, after amendment, Arti­
cles 49 EC and 28 EC). 
65. Certain sports rules can indeed be 
excluded from the scope of the Community 
provisions relating to freedom of move­
ment, on the basis of the rule established in 
Keck and Mithouard and Alpine Invest­
ments. This is at odds, however, with 
Bosman. According to Bosnian, rules gov­
erning the transfer of professional footbal­
lers 'directly affect players' access to the 
employment market in other Member 
States and are thus capable of impeding 
freedom of movement for workers. They 
cannot, thus, be deemed comparable to the 
rules on selling arrangements for goods 
which in Keck and Mithouard were held to 
fall outside the ambit of Article 30 of the 
Treaty'. 56 
66. I take the view, however, that, despite 
the assertions to the contrary by the Danish 
and Norwegian Governments, the EJU 
rules at issue do not relate merely to the 
way in which a service is organised, but are 
concerned directly with the question of 
access to that service. Both the rule con­
cerning 'one (or two) sportsmen or sports­
women per category' and the principle that 
participants in certain international com­
petitions should be selected by the national 
federations alone apply directly to access 
for 'high-level non-amateur athletes', such 
as Ms Deliège, to the market in services in 
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 | 1995 | ECR I-1141. 56 — Bosman, cited in footnote 12 above, paragraph 103. 
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OPINION OF MR COSMAS — JOINED CASES C-51/96 AND C-191/97 
(bb) The rules which derive from the parti­
cular nature of sport 
67. Most of the Member States and the 
sports federations contend that the con­
tested EJU rules are not subject to the 
application of the Community freedoms 
because they relate purely to matters of 
sport. 
68. The particular nature of sport has 
indeed been accepted by the Court as 
grounds for excluding application of the 
principle of free movement. In Dona, it was 
expressly held that the provisions of Com­
munity law on freedom of movement for 
persons and freedom to provide services 'do 
not prevent the adoption of rules or of a 
practice excluding foreign players from 
participation in certain matches for reasons 
which are not of an economic nature, 
which relate to the particular nature and 
context of such matches and are thus of 
sporting interest only, such as, for example, 
matches between national teams from dif­
ferent countries'. 57 
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 
The above findings were confirmed in 
Bosman, where the Court recognised that 
the Community provisions on freedom of 
movement for persons and freedom to 
provide services 'do not preclude rules or 
p rac t i ces just if ied on n o n - e c o n o m i c 
grounds which relate to the particular 
nature and context of certain matches.' 59 
It must be stressed, however, that this 
restriction on the scope of Community 
law 'must remain limited to its proper 
objective. It cannot, therefore, be relied 
upon to exclude the whole of a sporting 
activity from the scope of the Treaty.' 60 
69. The following conclusions can be 
drawn from the above case-law. First, 
certain rules or practices relating to sport 
do not fall within the scope of Article 59 of 
the Treaty. Secondly, in order for that 
exception to apply, the rules or practices 
in question must be justified by specific, 
non-economic reasons which relate purely 
to sport; the organisation of matches 
between national teams is a prime example 
of such a reason. Thirdly, the gap created in 
the application of Community law is 
clearly delimited; departures from Commu­
nity obligations may not exceed the pur­
pose for which they are created. 
70. I shall now apply the above rules to the 
facts of this case. The first argument that 
could be put forward in favour of uphold­
ing the contested decisions of the EJU 
is their ultimate objective. They were 
57 — Dona, cited in footnote 12 above, paragraph 14. 
58 — Walrave and Koch, cited in footnote 12 above, para­
graph 8. 
59 — Bosman, cited in footnote 12 above, paragraph 76. 
60 — Ibidem, paragraph 76. 
I - 2578 
DELIÈGE 
intended to serve as the basis for selecting 
the national teams which would represent 
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
less vitally important to each of the Eur­
opean national teams. Similarly, the com­
position of the European national teams 
which would have the honour of attending 
the greatest international sports event of 
all, the Olympic Games, is a purely sport­
ing matter which, in principle, has no 
economic dimension. 
71. Consequently, the central aim of the 
contested EJU rules was the selection of 
national teams for Atlanta. Logically, those 
rules are premised on the need to send to 
Atlanta the best national teams in Europe. 
The best teams are those made up of the 
athletes who have performed best in their 
sport. That is why selection at European 
level is based on athletes' success in certain 
international tournaments and in the Eur­
opean championships. Two questions 
remain, however. First, was it essential to 
make the national federations exclusively 
responsible for deciding which athletes 
would take part in the international tour­
naments at issue? Secondly, was it neces­
sary to restrict the number of athletes 
which each national federation was entitled 
to enter for the tournaments? Those are the 
questions I shall answer below. 
72. As far as the first question is concerned, 
it must be observed that, in accordance 
with standard practice throughout the 
world, the success or failure of a country's 
national team in a particular sport lies in 
the hands of the national federation respon­
sible for that sport. National federations 
have been entrusted with a task in the 
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 
A judo tournaments, it was quite logical 
that national federations should be given 
the exclusive right to decide which athletes 
would take part in those tournaments. The 
very essence of the system would clearly be 
undermined if national judo federations 
were allowed to bear the responsibility for 
promoting the interests of the national 
team in that sport but could not themselves 
choose the sportsmen or sportswomen they 
considered capable of defending those 
interests. Moreover, it is essential that 
participants be selected exclusively by the 
national federations. The effect of introdu­
cing a different system enabling athletes to 
enter international tournaments individu­
ally, as Ms Deliège wishes, would be to 
upset the balance between national federa-
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OPINION OF MR COSMAS — JOINED CASES C-51/96 AND C-191/97 
tions, inasmuch as they would no longer 
each be represented by the same number of 
athletes. 
73. That observation brings me to the 
answer to the second question. When 
defending the interests of their national 
teams with a view to selection for the 
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, 
secondly, to restrict the number of partici­
pants from each federation to one or two 
sportsmen or sportswomen per category. It 
is certainly not for the Court to consider 
the scope for increasing that number to 
three, four or more athletes per category. 
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 
are not applicable. Nor does the restriction 
on the scope of Article 59 exceed its 
purpose, which is to preserve the sporting 
ideal of noble competition between States. 
75. It should again be noted that high­
lighting that dimension of sport appears to 
have been one of the concerns of the 
Community's constitutional legislature dur­
ing the discussions leading to the conclu­
sion of the Treaty of Amsterdam.61 In 
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 
sports associations when important ques­
tions affecting sport are at issue, and to give 
special consideration to the particular char­
acteristics of amateur sport. 
76. In summary, Community law recog­
nises sporting authorities as having limited 
powers of self-management and self-regu­
lation on non-economic questions relating 
to the particular nature of sport. It is my 
view that, in adopting the contested rules, 
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. 
(2) Examination of the contested EJU rules 
in the light of Article 59 of the Treaty 
77. In the alternative, in the event that the 
contested sports rules are not inherently 
61 — I believe that reference to the Treaty of Amsterdam, even 
though it did not enter into force until 1 May 1999, is 
useful because it reveals the intentions of the Member 
States and the Community institutions with regard to the 
prospects for further European unification. 
I - 2580 
DELIÉGE 
exempt from Article 59, it is appropriate to 
make the following observations. 
78. It should be pointed out first of all that, 
contrary to what Ms Deliège maintains, the 
EJU rules do not appear to give rise to 
discrimination. Ms Deliège claims that the 
rule restricting the number of judokas per 
category who may take part in interna­
tional Category A tournaments creates a 
restriction which has discriminatory effects. 
Such discrimination is certainly not based 
directly on the nationality of the athlete, 
since national federations can accept ath­
letes of other nationalities for Category A 
judo tournaments, provided that they are 
registered with the relevant federations and 
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. 
79. In my opinion, that assertion is incor­
rect. The quantitative restriction imposed 
by the EJU applies to all judokas in Europe, 
irrespective of their nationality or their 
place of establishment. Ms Deliège would 
be subject to exactly the same restrictions 
relating to selection for international Cate­
gory A judo tournaments, whatever her 
nationality or place of establishment. 
80. That finding does not necessarily mean 
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 
are provided. Article 59 also covers restric­
tions which do not give rise to discrimina­
tion. I refer in particular to Säger, 62 which 
states that 'Article 59 of the Treaty requires 
not only the elimination of all discrimina­
tion against a person providing services on 
the ground of his nationality but also the 
abolition of any restriction, even if it 
applies without distinction to national 
providers of services and to those of other 
Member States, when it is liable to prohibit 
or otherwise impede the activities of a 
provider of services established in another 
Member State'. 63 
81. From that point of view, it must be 
recognised that, first, by limiting the num­
ber of judokas allowed to participate in 
international Category A judo tournaments 
and, secondly, by granting national sports 
federations the exclusive power to select 
those judokas, the EJU rules create obsta­
cles capable of precluding or impeding the 
freedom to provide services enjoyed by 
62 — Case C-76/90 Säger [1991] ECR I-4221. 
63 — Säger, cited in footnote 62 above, paragraph 12. See also 
Case C-288/89 Collectieve Antennevoorziening Gouda 
[1991] ECR I-4007; Alpine Investments, cited in footnote 
55 above; and Schindler, cited in footnote 15 above. 
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OPINION OF MR COSMAS — JOINED CASES C-51/96 AND C-191/97 
'high-level non-amateur athletes.'64 Those 
obstacles therefore constitute restrictions 
on the freedom to provide services which 
are in principle contrary to Article 59 of 
the Treaty. 
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 held65 that 
obstacles to freedom of movement can be 
tolerated by the Community legal order 
where the following conditions are met: 
firstly, where a derogation is expressly 
provided for by Community law, as in the 
case of Article 56 of the Treaty (now, after 
amendment, Article 46 EC), concerning 
national rules justified on grounds of public 
policy, public security or public health; and, 
secondly, in the case of measures which, 
without giving rise to discrimination, are 
justified by overriding needs in the public 
interest, are appropriate to the attainment 
of the aim pursued and are not binding 
beyond the degree necessary for the attain­
ment of that aim. The EJU rules were not 
adopted on grounds of public policy, public 
security or public health. Nevertheless, they 
may be objectively justified by another 
overriding need in the public interest. It is 
therefore appropriate to apply the set of 
criteria developed by the Court in its case-
law in order to determine whether the 
obstacles imposed by the EJU rules can or 
cannot be tolerated 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. 
84. First, I have already referred to the 
relationship between the contested sports 
rules and the selection of the European 
national teams for the Atlanta Olympic 
Games. Even if it is not accepted that those 
rules do not fall entirely outside the scope 
of Article 59, inasmuch as they relate to 
particular matches between national teams, 
the fact remains that they are objectively 
justified in so far as they apply to Member 
States' national judo teams. Allow me to 
explain. The pursuit of a national team's 
interests constitutes an overriding need in 
the public interest which, by its very nature, 
is capable of justifying restrictions on the 
freedom to provide services. In order to 
meet that overriding need, it is possible to 
grant certain powers to the sports teams or 
to the national sports federations, which 
are also exclusively responsible for select­
ing national teams. One such justified 
prerogative is to confer on judo federations 
the exclusive right to select the sportsmen 
and sportswomen who will take part in 
international Category A judo tourna­
ments. I also believe that the introduction 
of a mechanism for selecting the best 
64 — For the definition of this category, see point 41 et seq. 
above. 
65 — See Alpine Investments, cited in footnote 55 above; Säger, 
cited in footnote 62 above; Collectieve Antennevoorzien­
ing Gouda, cited in footnote 63 above, and Case C-353/89 
Commission v Netherlands [1991] ECR I-4069. 
I - 2582 
DELIÈGE 
national teams to represent Europe in the 
Atlanta Olympic Games may be treated as 
an overriding need in the public interest, 
the meeting of which justifies certain mea­
sures restricting access for judokas to 
international tournaments. It was the 
exclusive responsibility of the EJU to devise 
arrangements for selecting European 
national teams for the Atlanta Games. By 
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. 
85. A second point which must be empha­
sised is the representativeness ensured by 
the contested system for selecting partici­
pants in Category A judo tournaments. 
Through the sports rules which it has 
chosen, the EJU promotes a particular form 
of tournament which ensures that the 
widest possible range of European coun­
tries are represented. In other words, it 
enables sportsmen from every Member 
State of the EJU to take part. It thus 
strengthens the position of countries in 
which judo is less developed, first, because 
judokas from those countries are able to 
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 
of their national judokas' poor perfor­
mance. In other words, the idea of repre­
sentativeness also includes the need for 
balanced development of the sport at pan-
European level; that need is directly linked 
to the ideal of noble competition which is, 
or at least should be, espoused in sport. 
Accordingly, the restrictions on access to 
certain international tournaments which 
are imposed on judokas in order to make 
those tournaments more representative 
and, by extension, in the interest of the 
balanced development of the sport at pan-
European level, are justified, even if they 
may be equivalent to restrictions 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. 
Indeed, a less restrictive system based on 
more objective criteria such as each ath­
lete's individual track record and ability, 
without any prior involvement by the 
federations, could, in her view, be created. 
Ms Deliège believes that such a system 
would be easy to operate, particularly in 
individual sports such as judo. In that 
regard, she cites the example of tennis, 
the organisation of which reflects an ideal 
combination of the promotion of the gen­
eral interests of the sport and the protection 
of the economic and professional interests 
of the athletes. 
87. Ms Deliège's reasoning is unacceptable 
because it disregards both the importance 
of the particular nature of sport and the 
limited extent to which Community law 
may intervene in the practicalities of sport­
ing activity. This brings me to the third 
point in my observations on this matter. 
Community law docs not require sport to 
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OPINION OF MR COSMAS — JOINED CASES C-51/96 AND C-191/97 
develop in a particular direction, in the 
sense that it does not demand that indivi­
dual sports become fully commercialised or 
fully professional. On the contrary, in 
principle, it respects the choices made by 
the governing bodies of each sport, who are 
also the legitimate representatives of its 
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 
law. It ensures that sporting institutions 
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 
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 
a restriction on Community freedoms. This 
is dictated by the need to guarantee sport's 
right of self-regulation. 
88. In conclusion, it has been seen that, 
even in a so-called 'amateur' sport, there is 
scope for application of the principles of 
freedom of movement for persons and 
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
sional or purely amateur. It is the governing 
bodies of a sport which have the last word 
in determining whether it is predominantly 
professional or amateur. In any event, the 
contested EJU rules cannot be regarded as 
contrary to the Community rules on free­
dom of movement or freedom to provide 
services. 
B. The EJU rules in the light of Articles 85 
and 86 of the Treaty 
(a) The arguments of the parties 
89. According to Ms Deliège's observa­
tions, any judoka may be regarded as an 
undertaking within the meaning of Arti­
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 
as a decision of an association of under­
takings or as an agreement between under­
takings, and Article 85 of the Treaty should 
therefore be applied. 
90. Ms Deliège claims, next, that the 
contested rules have at least the potential 
I - 2584 
DELIÉGE 
to produce a significant impact on intra-
Community trade, in so far as judokas 
cannot move freely within the common 
market in order to provide their services 
there; the market associated with judo is 
under the absolute and exclusive control of 
the sporting federations. Ms Deliège sub­
mits that the contested EJU rules restrict 
competition both on the market in judo 
tournaments and on the market in adver­
tising services provided within the context 
of such tournaments. More specifically, the 
restriction on the number of athletes 
allowed to take part in international Cate­
gory A judo tournaments precludes the 
participation of athletes from countries 
where that sport is highly developed. 
Accordingly, the restriction on competition 
adversely affects the quality of the services 
provided in the sector of judo tournaments. 
Furthermore, the contested rules allow 
federations to control competition within 
the sport in a permanent and unlawful 
manner which precludes the participation 
of a greater number of athletes. 
91. Ms Deliège also observes that only the 
Commission has the power, under Arti­
cle 85(3) of the Treaty, to grant an exemp­
tion by virtue of which the contested sports 
rules would cease to infringe the Commu­
nity provisions on competition. However, 
no such exemption has as yet been 
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. 
92. As regards Article 86, Ms Deliège has 
endeavoured to define the market in ques­
tion. It is (in her submission) the market in 
judo services provided at international judo 
tournaments not involving competition 
between national teams. Geographically, 
the market covers the whole of the Euro­
pean market on which the EJU rules apply 
and, in any event, the Belgian market. Ms 
Deliège maintains that the LBJ holds a 
dominant position on the Belgian market, 
while the EJU holds a dominant position on 
the European market. She submits that the 
LBJ and the EJU abuse their dominant 
positions by imposing rules which deny 
certain athletes access to the financial 
resources which they could derive from 
practising their sport. According to Ms 
Deliège, the abuse lies in the fact that the 
federations do not merely regulate matters 
relating to the practice of judo, but also 
determine in a way which is unlawful the 
conditions governing access to tourna­
ments. First of all, the right of selection 
enjoyed by national federations could be 
deemed comparable to the imposition by an 
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 
apply different conditions to the provision 
of equivalent services. Ms Deliège considers 
such conduct to constitute abuse inasmuch 
as it adversely affects intra-Community 
trade and restricts free competition; she 
refers in this respect to her submissions 
relating to Article 85 of the Treaty. 
93. The LFJ, the LBJ and most of the 
Member States reject the premiss that this 
I - 2585 
OPINION OF MR COSMAS — JOINED CASES C-51/96 AND C-191/97 
dispute may fall within the scope of the 
Community rules on competition. They 
submit that not only can a judoka not be 
regarded as an undertaking, but also that 
judo federations or associations cannot be 
classified as undertakings or associations of 
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 
Ms Deliège were deemed to have the status 
of an undertaking by virtue of sponsorship, 
that would not be sufficient for the federa­
tions to be classified as associations of 
undertakings, inasmuch as athletes are not 
attached to those federations as providers 
of advertising services, but because of their 
status as athletes. In other words, since 
judo federations have no commercial or 
economic objectives, they cannot be regar­
ded as undertakings or associations of 
undertakings, even if certain judokas may 
be classified as undertakings. 
94. Furthermore, the above parties draw 
attention to the fact that the application of 
Article 85 presupposes the existence of 
effective competition and the risk of a 
barrier to intra-Community trade. As the 
sports federations and most of the Member 
States point out, those conditions are not 
fulfilled in the present case. In any event, 
the rules for selecting athletes to take part 
in tournaments, which are based exclu­
sively on objective and non-discriminatory 
sport-related criteria, are consistent with 
the principles of free competition. For the 
same reasons, it cannot be maintained that 
the sports federations in question occupy a 
dominant position which they abuse. 
95. The Spanish Government takes an 
intermediate view. It observes first of all 
that, while it is true that athletes belonging 
to sports federations may be regarded as 
undertakings or associations of undertak­
ings, the determination of whether or not 
that is so must be based on objective 
criteria and a close examination of each 
dispute. As far as the present case is 
concerned, there is no evidence to show 
that the adoption of the contested rules by 
the EJU is in fact equivalent to the pursuit 
of an economic activity capable of giving 
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 competi t ion to an unjustified 
degree. 
96. The need for an ad hoc assessment of 
the present case is also highlighted by the 
Netherlands Government, while the Nor­
wegian Government states that, in assessing 
sports legislation with reference to the 
competition rules, regard must also be 
had to questions such as sponsorship, 
advertising and the distribution of earnings. 
On the basis of those criteria, it must be 
I - 2586 
DELIĖGE 
examined to what extent the contested EJU 
rules affect trade between States and com­
petition. The Norwegian Government does 
not automatically rule out the possibility 
that sports legislation may lead to results 
which are contrary to the requirements of 
Article 85(1) of the Treaty. It considers it 
important, however, to examine also the 
extent to which the relevant sports rules 
may be regarded as justified by their 
purpose. 
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 
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 
Community competition law as long as it is 
not disproportionate to the purpose for 
which it is intended. 
(b) My position on the above issue 
98. The Court has not yet stated its posi­
tion on the direct impact which the Com­
munity competition rules may have on 
sport. In Bosman, 66 the Court considered 
it appropriate not to answer the referring 
court's questions as to the compatibility 
with the Community competition rules of 
certain rules of the Union of European 
Football Associations (UEFA) concerning 
the transfer of professional footballers. 
However, Advocate General Lenz made 
some very interesting points on that issue 
in his Opinion in that case, from which it 
follows that the provisions of Article 85 el 
seq. of the Treaty arc applicable to sport. 
(1) Admissibility 
99. As far as this case is concerned, the 
Court's task is not to give a hypothetical 
answer to the question referred but to 
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 
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 
trade is involved, whether there is a domi­
nant position, whether the conduct in 
question constitutes abuse and, finally, 
what effect the contested act or practice 
has on competition. That information, 
which is essential in order to determine 
satisfactorily to what extent the contested 66 — Sec footnote 12. 
I - 2587 
OPINION OF MR COSMAS — JOINED CASES C-Jl/96 AND C-191/97 
EJU rules are contrary to Articles 85 and 
86 of the Treaty, has not been furnished to 
the Community judicature by the referring 
court. The latter confines itself to vague 
and general observations on whether the 
contested EJU rules are in conformity with 
competition law. It is therefore clearly 
impossible to give a satisfactory answer to 
the question referred. 
100. Certain aspects of the position I have 
taken may be open to question. It is 
ultimately debatable whether the same 
question may be addressed from the point 
of view of Article 59 et seq. of the Treaty, 
but not from the point of view of Article 85 
et seq. There is, however, an essential 
difference between the rules on freedom 
to provide services and those on the 
protection of competition. In the first case, 
the point of law is examined in its indivi­
dual dimension: the question is whether the 
relationship between certain persons is that 
of supplier and recipient of a 'service' 
within the meaning of Community law. It 
is therefore sufficient to ascertain the extent 
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 
examined from the point of view of the 
rules on competition, on the other hand, 
must be considered in its overall institu­
tional dimension. The examination focuses 
not on the assessment of an individual 
activity but on the description and delimi­
tation of a global market. Defining the 
market conditions and the overall conduct 
of all those trading on it is clearly a more 
complex affair than ascertaining whether, 
in a particular case, there is a provision of 
services within the meaning of the Treaty. 
Similarly, the issues of fact and law of 
which the Community judicature must be 
aware in order to give a correct and 
satisfactory answer to a question relating 
to competition law are quite clearly more 
numerous than those which must be taken 
into account in order to deal with a case 
concerning the Community rules on free­
dom of movement. 
101. The Court has already noted, in its 
judgment in Telemar sicabruzzo,67 the 
increased need to define and analyse the 
facts in the main proceedings in order to 
make it possible to answer questions relat­
ing to Community competition law. In that 
case, it held that: '[i]t must be pointed out 
that 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 
legislative context of the questions it is 
asking or, at the very least, explain the 
factual circumstances on which those ques­
tions are based. Those requirements are of 
particular importance in the field of com­
petition, which is characterised by complex 
factual and legal situations.'68 
102. Consequently, in the absence of suffi­
cient factual and legal information to make 
a satisfactory answer possible, I believe that 
the contested EJU rules cannot be examined 
in the light of the Community competition 
rules. In particular, it is not clear how many 
67 — Cited in footnote 5 above. 
68 — Telemarsicabruzzo, cited in footnote 5 above, paragraphs 
6 and 7. 
I - 2588 
DELIÉGE 
judokas practise their sport by way of an 
economic activity, and it is therefore impos­
sible to determine how many undertakings 
are supposed to be operating on the 
relevant market. Nor do we know the 
precise extent of the economic activity (if 
any) pursued by the national judo federa­
tions, the EJU or the organisers of interna­
tional judo tournaments. Furthermore, the 
questions concerning the existence of intra-
Community trade in the field of interna­
tional judo tournaments, the effects of the 
contested EJU rules on such trade and their 
effect on competition generally can only be 
answered hypothetically, an approach 
which does not by any means provide the 
national court with a useful and satisfac­
tory reply. 
(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
munity competition law. 
104. First of all, it is my view that any 
judoka in the 'high-level non-amateur' 
category — as described above — must be 
regarded as an undertaking within the 
meaning of Article 85 of the Treaty. That 
term 'encompasses every entity engaged in 
an economic activity, regardless of the legal 
status of the entity and the way in which it 
is financed.'69 By extension, the national 
judo federations and the EJU may be 
regarded as associations of undertakings 
within the meaning of Article 85. As 
Advocate General Lenz rightly observed 
in his Opinion in Bosman, 70 that conclu­
sion is not affected by the fact that 
members of national federations include 
not only 'high-level non-amateur athletes', 
but also a large number of amateur clubs 
and purely amateur athletes. Furthermore, 
the national federations and the EJU may 
themselves be regarded as undertakings 
within the meaning of Article 85 of the 
Treaty, inasmuch as they pursue an inde­
pendent economic activity, whether or not 
they do so with a view directly to financial 
gain. The Community judicature has not 
held a profit-making aim to be one of the 
constituent elements of the concept of an 
'undertaking' within the meaning of Arti­
cle 85. 7 1 72 
69 — See Case C-41/90 Höfner and Elser [1991] ECR I-1979, 
paragraph 2 1 . 
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
cles 85 and 86 of the Treaty. Similarly, in its Decision 
92/521/EEC of 27 October 1992 relating to a proceeding 
under Article 85 of the EEC Treaty (IV/33.384 and IV/ 
33.378 — Distribution of package tours during the 1990 
World Cup) (OJ 1992 L 326, p. 31), the Commission 
stated that FIFA (International Federation of Association 
Football) and the Italian Football Federation were exercis­
ing an economic activity, in particular in the context of the 
distribution of tickets for the 1990 Football World Cup in 
Italy, and that they must therefore be regarded as under­
takings. 
I - 2589 
OPINION OF MR COSMAS — JOINED CASES C-51/96 AND C-191/97 
105. In summary, it is not inconceivable 
that the EJU and the national federations 
which belong to it may be regarded as 
undertakings within the meaning of Arti­
cles 85 and 86 of the Treaty. However, 
certain points remain unclear. First, it is not 
possible, on the basis of the information 
brought to the attention of the Court, to 
determine the number of judokas who, like 
Ms Deliège, are to be regarded as 'under­
takings'. It is not therefore possible to 
determine accurately which judokas fall 
into the 'high-level non-amateur' category. 
It is merely safe to assume that it includes 
some of the best practitioners of that sport 
from countries throughout Europe. It is 
also impossible to determine accurately the 
extent to which the LBJ and the EJU 
directly pursue an economic activity (when 
organising tournaments, concluding con­
tracts with sponsors or selling television 
broadcasting rights) and whether there is 
any link between that activity and the 
sports rules at the centre of this dispute. 
106. In any event, even assuming that the 
contested rules do constitute an agreement 
between undertakings or a decision of an 
association of undertakings,7 3 an infringe­
ment of Article 85 also requires an obstacle 
to trade between Member States and a 
restriction on competition. 
107. As regards the impact on trade 
between States, it should be pointed out 
that the prohibition laid down in Article 85 
applies to any agreement 'which is capable 
of constituting a threat to freedom of trade 
between Member States in a manner which 
might harm the attainment of the objectives 
of a single market between the Member 
States,' 7 4 provided that the effect in ques­
tion is 'appreciable' .7 5 
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 
alone appreciably. The fact that the EJU has 
decided that the need for tournaments to be 
representative should take priority over the 
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 
association of undertakings is of no importance in practice 
(point 258 of the Opinion). 
74 — Case 22/78 Hugin [1979] ECR 1869, paragraph 17. 
75 — By way of guidance, see Case 28/77 Tepea v Commission 
[1978] ECR 1391, paragraphs 46 and 47. 
I - 2590 
DELIÉGE 
in my opinion a legitimate choice. It is an 
attempt by the EJU (which it is entitled to 
make) to adapt to the needs of the mar­
ket. 76 More specifically, it prefers to orga­
nise tournaments featuring athletes from as 
many countries as possible, rather than 
tournaments involving only a few countries 
where judo is already well developed. Not 
only does that choice not hinder intra-
Community trade, it may strengthen it, in 
so far as it ensures that international judo 
tournaments are entered by athletes from 
all Member States and not just from those 
where the sport is developed. 
109. However, two observations can be set 
against the above interpretation. First, it 
seems to be settled case-law that intra-
Community trade is affected even in cases 
where an agreement or a decision between 
undertakings or associations of undertak­
ings gives rise to an increase rather than a 
decrease in the volume of trade between 
Member States.77 Consequently, the fact 
that the contested EJU rules seek to ensure 
that athletes from all Member States take 
part in a series of international tourna­
ments, while this would be impossible 
without those rules, does not necessarily 
mean that there is no obstacle to trade 
between Member States. Secondly, the 
obstacle in question may be merely poten­
tial: in other words, it is sufficient that 
there be a possibility of significant impact 
on trade between Member States. 78 Con­
sequently, the mere fact that the EJU rules 
are capable of excluding a number of high-
level athletes from taking part in interna­
tional judo tournaments may be sufficient 
to support the finding that a potential 
obstacle to intra-Community trade exists. 
110. However, even on the basis of that 
broad interpretation, which I do not 
endorse, I am still of the opinion that there 
has been no infringement of Article 85(1) 
of the Treaty in the present case, since there 
has been no unlawful restriction of compe­
tition. I would say first of all that I agree 
with the Commission's argument that mea­
sures adopted by a sports federation in the 
field of access for athletes to international 
tournaments may constitute a restriction of 
competition. It must also be recognised, 
however, that Article 85( 1 ) docs not apply 
to restrictions on competition which are 
essential in order to attain the legitimate 
aims which they pursue. That exception is 
based on the idea that rules which, at first 
sight, reduce competition, but are necessary 
precisely in order to enable market forces 
to function or to secure some other legit­
imate aim, should not be regarded as 
infringing the Community provisions on 
competition. 76 — The more representative a tournament is, the greater the 
revenue television broadcasting rights and advertising will 
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 —Case 19/77 Miller [1978] ECR 131, paragraphs 14 and15 . 
I - 2 5 9 1 
OPINION OF MR COSMAS — JOINED CASES C-51/96 AND C-191/97 
111. That was the interpretation adopted 
by the Court in DLG, 79 concerning the 
lawfulness of the statutes of a cooperative 
which prohibited its members from also 
participating in other organisations in 
direct competition with it. Having held 
that compatibility with the rules on com­
petition could not be assessed in the 
abstract but depended on the content of 
the clauses at issue and the 'economic 
conditions prevailing on the markets con­
cerned', the Court concluded that restric­
tions on competition which were 'neces­
sary ' to ensure tha t the cooperat ive 
functioned properly and to strengthen its 
position when a contract was concluded did 
not fall within the scope of Article 85(1). 
The Court also examined the extent to 
which the provisions of the statutes were 
'reasonable' and did not contain any 'dis­
proportionate' penalties. 8 0 
112. As Advocate General Lenz pointed 
out in his Opinion in Bosman, 81 the above 
legal construction must be transposed to 
the relationship between sport and Com­
munity competition law. Applying that 
reasoning to this case, I also take the view 
that, even if they were to be regarded as 
reducing competition, in the sense that they 
prevent certain judokas from taking part in 
certain international tournaments, the con­
tested rules do not fall within the scope of 
Article 85 of the Treaty because they are 
indispensable for attaining the legitimate 
objectives deriving from the particular 
nature of judo. 8 2 As regards the description 
and legitimacy of those objectives, I refer to 
the analysis above, 83 which shows that the 
contested sports rules were intended, first, 
to establish a mechanism for selecting 
national teams to represent Europe in the 
Atlanta Olympic Games and, secondly, to 
ensure that certain international judo tour­
naments are as representative as possible. 
Consequently, there is, in my view, no 
infringement of Article 85(1) of the Treaty. 
113. Indeed, even if the Court were minded 
to accept that the EJU occupies a dominant 
position on the market in judo tourna-
79 — Case C-250/92 DLG [1994] ECR I-J641. 
80 — DLG, cited in footnote 79 above, paragraphs 31 to 36. 
81 — Cited in footnote 12 above, point 268 et seq. 
82 — In answer to an argument raised by Ms Deliège in this 
respect, I would say the following: the extent to which an 
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 
whether or not to grant an exemption under Article 85(3) 
of the Treaty. 
83 — See points 70 to 76 and 84 to 88 above. 
I - 2592 
DELIÉGE 
ments, the particular objectives pursued by 
the measures which it has adopted would 
still mean that its conduct could not be 
classified as abuse and does not therefore 
fall within the scope of the prohibitions 
contained in Article 86 of the Treaty. 
114. In conclusion, in the light of the 
evidence submitted for the Court's consid­
eration, I do not sec how the EJU rules 
could be regarded as contrary to the 
requirements of Articles 85 and 86 of the 
Treaty. 
VI — Conclusion 
115. On those grounds, I propose that the Court reply as follows to the questions 
referred for a preliminary ruling: 
(1) The question referred in Case C-51/96 is inadmissible. 
(2) With regard to the question referred in Case C-191/97: 
(a) A sporting activity from which an athlete derives economic advantages in 
the form of financial aid from the sports federations in her country and in 
the form of bonuses, under the conditions described in the present case, 
constitutes an economic activity within the meaning of Article 2 of the EC 
Treaty (now, after amendment, Article 2 EC) and therefore enjoys the 
protection of Community law. 
I - 2593 
OPINION OF MR COSMAS — JOINED CASES C-51/96 AND C-191/97 
(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). 
I - 2594