Opinion of Mr Advocate General Lenz delivered on 20 September 1995. - Union royale belge des sociétés de football association ASBL v Jean-Marc Bosman, Royal club liégeois SA v Jean-Marc Bosman and others and Union des associations européennes de football (UEFA) v Jean-Marc Bosman. - Reference for a preliminary ruling: Cour d'appel de Liège - Belgium. - Freedom of movement for workers - Competition rules applicable to undertakings - Professional footballers - Sporting rules on the transfer of players requiring the new club to pay a fee to the old club - Limitation of the number of players having the nationality of other Member States who may be fielded in a match. - Case C-415/93.



European Court reports 1995 Page I-04921



Opinion of the Advocate-General

A - Introduction

I - The problems raised

1 This reference from the Cour d'Appel (Court of Appeal), Liège, for a preliminary ruling raises two questions relating to the compatibility with Community law of certain rules applying in football. The first question concerns the rules which permit a football club, if a player under contract with it moves to another club after that contract has expired, to demand a certain sum of money (the so-called transfer fee) from that club. The second question which has been referred concerns the rules which restrict the access of foreign footballers to the various competitions (the so-called rules on foreign players).

2 I shall first describe the facts which are at the origin of the national proceedings and the rules whose compatibility with Community law is at issue in this case. Since the facts of the action pending in the Liège Cour d'Appel can be understood only in the context of those rules, it makes sense to begin by looking at those rules.

II - The organization of football

3 The rules to be discussed here were adopted by private associations. As will be demonstrated, only in a few Member States so far has the national legislature enacted provisions which are of relevance in this field. Since the rules of those associations interlock and are more or less aligned to each other, in order to understand them one must first form a concept of how football is organized.

4 Football as an organized sport is played in clubs which are joined together in associations. As a rule there is a single association in each Member State, which organizes the sport at national level. In Belgium this is the ASBL Union Royale Belge des Sociétés de Football Association (hereinafter `URBSFA'). An exception is the United Kingdom, where for historical reasons England, Wales, Scotland and Northern Ireland each have their own association.

5 Those associations are joined together worldwide in the Fédération Internationale de Football Association (`FIFA'), whose seat is in Zürich, Switzerland. (1) Within FIFA there are several groupings which comprise the associations of a particular continent. One of them is the Union des Associations Européennes de Football (Union of European Football Associations, `UEFA'), whose members are the football associations of Europe. In addition to the 18 associations from the Member States of the EC, a large number of other associations from European countries belong to UEFA. UEFA currently has around 50 members in all. UEFA has inter alia the function of organizing the European Championship for national teams and the European Champions' Cup, European Cup-Winners' Cup and UEFA Cup for club teams. (2) UEFA too has its seat in Switzerland. (3)

III - Transfer rules

1. Belgium

6 Under the URBSFA statutes of 1982, three kinds of relationships are to be distinguished: the player's affiliation to an association (`affiliation'), (4) his affiliation to a club (`affectation') (5) and his entitlement to play (`qualification'). Only a player who is entitled to play may take part in the matches organized by the association. Entitlement to play presupposes that the player belongs to the Belgian association and a Belgian club. A transfer is defined as the process by which a player belonging to the association changes his club affiliation. (6) That definition as such thus covers only changes of club within Belgium, since in the event of a move abroad or to Belgium from abroad the player's affiliation to an association also changes. In the event of a temporary transfer, the player continues to belong to his previous club but is entitled to play for his new club.

7 The association's statutes distinguish between three kinds of transfer: so-called compulsory transfer (`transfert imposé'), so-called free transfer (`transfert libre') and administrative transfer (`transfert administratif'). (7) For a `transfert imposé' the consent of the player and his new club is required, but not that of his former club. A `transfert libre' requires agreement between the player and both clubs involved. `Transfer administratif' is not relevant for the present case. (8)

8 The URBSFA statutes distinguish between a change of clubs by an amateur on the one hand and a change of clubs by a professional or non-amateur player (9) on the other hand. The rules on transfers of amateurs need no further description here. It is, however, important for an understanding of what is stated below that an amateur may change clubs by means of a compulsory transfer, with the new club having to pay a transfer fee of up to BFR 1 000 000. (10)

9 The rules on transfers of professional and non-amateur players may be described as follows. The clubs conclude contracts with those players, in which provision is made in particular for remuneration and minimum bonuses. The terms of those contracts are negotiated, but the association's statutes prescribe certain minimum amounts, for example a fixed monthly amount of at least BFR 30 000 for a professional player. (11) All the contracts, which may run for a period from one year to a maximum of five years, (12) must terminate on a 30 June. (13) Before expiry of the contract - in fact at the latest by 26 April of the year in question - the club must offer the player a new contract. Otherwise the player in question is regarded as an amateur from 1 May on for the purposes of the transfer rules. (14)

The player is free to reject the offer. If he does so, his name is included on a transfer list, which must be transmitted to URBSFA by 30 April at the latest. (15) For players whose names have been put on that list, a compulsory transfer is permissible between 1 May and 31 May. That means that a transfer can take place even without the consent of the old club if the new club pays the old club the transfer fee provided for. The amount of that transfer fee, which is described by the 1982 URBSFA statutes as compensation for training the player (`indemnité de formation'), is calculated by taking the player's gross annual income and multiplying it by a factor from 14 to 2 (for professionals) or from 16 to 4 (for non-amateurs) depending on the player's age. (16) In the case of a professional player aged 25 or 26, for instance, the transfer fee is ten times his gross income.

The `free' transfer period follows, from 1 to 25 June. (17) The transfer fee is negotiated freely. A change of clubs is only possible, however, if the former club and the new club have reached agreement on the amount of that transfer fee. (18) If the fee is not paid, sanctions may be imposed on the club by the association. (19)

If no transfer takes place, the club to which the player belongs must offer him a new contract for one season on the same terms as were offered in April. If the player rejects that offer, the club can until 1 August take measures to suspend him. If it does not do so, the player is automatically reclassed as an amateur. (20) If a suspension has been imposed and still no new contract is concluded or transfer effected, then after two seasons during which he is not allowed to play, the player can have himself transferred as an amateur. (21)

10 Since 1 January 1993 URBSFA has applied a new transfer system. Since that new system is, however, very similar to the rules which have just been described, I shall only point out a few differences here. In the new system the player's freedom of contract is emphasised, but at the same time it is stated that the new club is to pay a transfer fee to the previous club:

`Sans préjudice de la liberté contractuelle du joueur, le club acquéreur est tenu de verser une indemnité au dernier club d'affectation (Art. IV/61.4).'

(`Without prejudice to the player's freedom of contract, the acquiring club shall be obliged to pay compensation to the club with which he was last registered (Art. IV/61.4).') (22)

In the provision referred to, the transfer fee is defined as a payment intended as compensation for the training and development of the player, his skill, and the cost of replacing him (`une indemnité compensant la formation, la promotion, le savoir-faire et le remplacement').

As under the previous rules, the transfer fee is calculated, in the event of a compulsory transfer, by multiplying the player's gross income by a specified factor depending on the player's age. (23) The figures have been changed slightly, however. Thus for a professional aged from 25 to 27 in the first division, the transfer fee is now eight times his gross income.

11 The 1993 URBSFA statutes also contain provisions which apply if a player who has hitherto belonged to a foreign club moves to a Belgian club. They refer in this respect to the corresponding FIFA rules. (24) The player in question cannot be given entitlement to play for a Belgian club until URBSFA is in possession of an international transfer certificate issued by the association which the player wishes to leave. The association may be ordered by FIFA to issue the certificate, and FIFA can also issue a corresponding certificate itself. Under certain conditions URBSFA can itself issue a provisional certificate. (25)

2. The UEFA rules

12 The UEFA rules on transfers applicable at the material time for the national proceedings in the Liège Cour d'Appel are contained in a document entitled `Principles of Cooperation between Member Associations of UEFA and their Clubs' (hereinafter `the 1990 UEFA transfer rules'), which was adopted by the UEFA Executive Committee on 24 May 1990 and was to come into effect, in accordance with its final provision, on 1 July 1990.

13 According to those rules, on expiry of his contract the player is free to conclude a new contract with the club of his choice. (26) The new club must immediately notify the former club of the conclusion of the contract. The former club must immediately inform its national association. The association must then immediately issue the international clearance certificate. (27)

14 The former club is, however, entitled, to `compensation for ... training and development' from the new club. Compensation for training is payable on the occasion of a first change of club. At each further change of club, compensation for development is payable, that being intended to compensate the progress which the club has enabled the player to make. (28) In the event of differences of opinion between the clubs, a board of experts set up by UEFA makes a binding determination of the amount of that transfer fee. (29) That is done by taking the player's gross income in the preceding season, including bonuses and royalties, and multiplying it by a specified factor between 12 and 1, depending on the player's age. For a player aged 25 or 26, for example, the transfer fee payable is eight times that sum. The transfer fee may not, however, exceed 5 000 000 Swiss francs. (30)

15 The following provision can be found in Article 16 of those rules:

`The business relationships between the two clubs in respect of the compensation fee for training and development shall exert no influence on the sporting and professional activity of the player. The player shall be free to play for the club with which he has signed the new contract.'

16 At the end of the text of the 1990 UEFA transfer rules it is stated to be desirable that the principles of the national transfer systems for top-class football should be adapted as soon as possible to the system as defined in that document.

17 The principles defined in the 1990 UEFA transfer rules for all members of UEFA are already largely to be found, as far as the territory of the Community is concerned, in a document adopted by the UEFA Executive Committee on 2 May 1988, entitled `Principes de collaboration entre les clubs de différentes Associations nationales des Etats-membres de la CEE' (Principles of cooperation between clubs of different national associations of the Member States of the EEC).

18 On 5 December 1991 UEFA adopted a new version of the `Principles of Cooperation between Member Associations of UEFA and their Clubs', which was to come into force on 1 July 1992 (hereinafter `the 1992 UEFA transfer rules'). The provisions therein concerning transfers largely correspond to those of the 1990 UEFA transfer rules. There are differences, however, with respect to the question of the calculation of the transfer fee. The new rules appear in particular no longer to contain any maximum amount for the transfer of a professional player. (31)

19 Those rules were replaced by the `UEFA Rules on the determination of compensation for transfers' (hereinafter `the 1993 UEFA transfer rules'), adopted by UEFA on 16 July 1993, to come into force on 1 August 1993. Those rules are based on Article 16(2) of the FIFA regulations - to be discussed below - on the status and transfer of footballers, and provide that `international changes of club by footballers' are to be governed by those FIFA regulations. The provisions of the 1993 UEFA transfer rules govern `exclusively the procedure and type of calculation' with respect to `compensation for training and/or development in accordance with Article 14 of the FIFA regulations', but only in the event of the clubs being unable to agree on the amount of that transfer fee. (32)

The 1993 UEFA transfer rules confirm that on expiry of his contract a player is free to conclude a new contract with a club of his choice and that the question of the transfer fee payable is to have no influence on the player's sporting activity. The player `shall be able to play freely for the club with which he has concluded the new contract'. (33)

The 1993 UEFA transfer rules also provide, as the earlier rules had already done, that in the event of a dispute the amount of the transfer fee is to be determined by a committee, which does so by multiplying the player's gross income by a factor from 12 to 0 depending on the player's age. (34) It appears that the basis of the calculation is more narrowly defined than in the earlier rules. (35)

3. The FIFA rules

20 The FIFA transfer rules which applied in 1990 can be found in regulations which were adopted on 14 and 15 November 1953 and last amended on 29 May 1986 (hereinafter `the 1986 FIFA Regulations').

21 Those regulations provide that each national association is to determine the status and qualification of its players, and that those decisions are to be recognized by the other associations and by FIFA itself. (36)

Under Article 14(1) of those rules a professional player may not leave his national association while he is bound by his contract and by the rules of his club, league or national association, however harsh those may be. A transfer thus presupposes the issue of a certificate of transfer by his former national association. In that certificate the national association confirms that all commitments of a financial nature, including any transfer fee, have been settled. (37) No national association may register a player until it is in possession of the transfer certificate. (38)

22 FIFA too has amended its transfer rules since then. The new regulations were adopted by FIFA in April 1991 and amended in December 1991 and December 1993. Only the new version which came into force on 1 January 1994 (hereinafter `the 1994 FIFA Regulations') will be considered here.

23 The 1994 FIFA Regulations regulate the status and eligibility of footballers who `effect a transfer from one national association to another'. (39) Such players can be registered with a club affiliated to another association only if that association has received `an international transfer certificate issued by the national association which the player wishes to leave'. (40) Only the new association is entitled to request the transfer certificate to be issued. (41) Issue of the certificate may be refused only if the player in question `has not fulfilled his obligations under the terms of his contract with his former club' or if `there is a dispute other than that of a financial nature ... regarding the player's transfer' between the old and new clubs. (42) FIFA can order an association to issue such a transfer certificate or itself adopt a decision which takes the place of the certificate. If the player's former association does not issue the transfer certificate within a period of 60 days from the making of the request by the new association, the new association may issue a provisional certificate itself. (43)

24 Under Article 14(1) of the 1994 FIFA Regulations, in the event of the transfer of a non-amateur player, his former club is entitled to `compensation for his training and/or development'. If an amateur player concludes a contract with a new club, as a result of which he loses his amateur status, his former club is entitled to `compensation for his development'. (44) If the two clubs cannot reach agreement on the amount of compensation, the dispute is to be submitted to FIFA for a decision. (45) However, the rules allow the confederations within FIFA (46) to adopt their own regulations for settling such disputes. In such a case the confederation alone is competent to decide corresponding disputes between clubs under its jurisdiction. (47) As stated above, UEFA has made use of that possibility. (48)

25 Article 20(1) of the 1994 FIFA Regulations provides that disagreements concerning the amount of the transfer fee must not have any influence on the player's sporting or professional activity, and goes on to state that:

`... an international transfer certificate may not be refused for this reason. The player shall therefore be free to play for the new club with which he has signed a contract as soon as the international transfer certificate has been received'.

26 According to paragraph 2 of the preamble to the 1994 FIFA Regulations, `the rules laid down under Chapters I, II, III, VII, VIII and X' are also binding at national level. Chapter V, which is entitled `Players transferred from one national association to another' and comprises Articles 12 to 20, is not mentioned. Under paragraph 3 of the preamble, each national association is obliged to provide a system for transfers effected within its own association and to adopt appropriate regulations. Those regulations are to `include the binding rules stipulated in paragraph 2, observe the general principles stipulated in the following articles and contain provisions for any dispute that may arise during a transfer'.

4. Rules in other Member States

27 To complete the picture, it is useful to look at the transfer rules of the other Member States of the Community. In response to a written request by the Court of Justice, UEFA has produced the regulations it states to be currently in force in the various Member States and has also helpfully provided a summary of them. A discussion of all those regulations is neither possible nor sensible in the present context. I shall therefore restrict myself to some Member States and concentrate on the points which appear to me to be noteworthy. It should be noted that the following account is based exclusively on the texts produced by UEFA, which are for the most part in the language of the country in question. It may therefore be the case that the occasional minor inaccuracy has crept in.

28 In Austria the corresponding rules can be found in the `Regulativ für die dem ÖFB angehörigen Vereine und Spieler' (Regulations for clubs and players affiliated to the Österreichischer Fußball-Bund (Austrian Football Federation)), in force since 1 July 1994. Under Paragraph 25(3) of those regulations, the player's former club is entitled in the event of a transfer to demand compensation for the transfer. Under Paragraph 30(1) of the regulations that transfer compensation represents `a financial equivalent of the worsening of the club's competitive position as a result of the player's departure. The transfer compensation further includes also a proportion of the costs of training.'

Article 30(4) of the regulations provides that disputes between clubs concerning the transfer fee are to `have no influence on the player's eligibility. The player shall be eligible to play once he is registered for the new club, in accordance with the provisions relating thereto.'

Under Paragraph 32(5) of the regulations, `the corresponding FIFA or UEFA regulations' apply to transfers abroad or from abroad.

29 In Germany the rules on transfers are mainly contained in the `Lizenzspielerstatut' (Statute of professional players) of the Deutscher Fußballbund (German Football Federation, `DFB'). In addition, the DFB's `Spielordnung' (rules on matches) are to be noted. Under Paragraph 29(1) of the Lizenzspielerstatut, a club which concludes a contract with a player of another club must pay a transfer compensation to that club. The validity of the contract of employment `may not be dependent on a specified amount and/or on agreement on the transfer compensation'. The provisions on the transfer of amateurs to professional clubs are of interest. In the 1994/95 season a Bundesliga club which concluded a professional contract with an amateur from another club had to pay a transfer fee of DM 100 000. A second division Bundesliga club had to pay DM 45 000 for the same player in that season. That transfer fee was to be divided between the clubs for which the player in question had been eligible within the last seven years before the transfer. (49)

In the case of a transfer abroad, the player's former club is entitled to `compensation for training and development'. (50) For transfers to other associations within the Community, the `UEFA rules on the payment of compensation for training and development apply' in the version in force at the time. (51)

30 For Denmark UEFA has produced to the Court the Danish Football Association's model contract for footballers. Section 3 of that contract contains the provisions on the transfer of players under contract. It appears that a transfer fee is payable only if the contracted player moves to a Danish first division club or a foreign club. (52) In the case of a transfer to a Danish first division club, the transfer fee is calculated on the basis of the player's gross income multiplied by various factors from 0 to 3 according to the player's age and income. For players from 25 to 27 years of age, for example, the factor is 0.80 for the first DKR 100 000 of gross income, 1.60 for gross income exceeding DKR 100 000 but less than DKR 200 000, and 2.40 for the remaining income. (53) In the event of a transfer abroad, on the other hand, the transfer fee is calculated by multiplying the player's gross income by a uniform factor between 12 and 1. For a player aged from 25 to 27 the factor is 8. (54)

At the hearing before the Court, however, the representative of Denmark stated that a law abolishing transfer fees is being drafted.

31 In Spain Real Decreto (Royal Decree) No 1006/1985 of 26 June 1985 prescribes that, in the event of a transfer, a transfer fee (`una compensación por preparación o formación') in accordance with a collective wage agreement may be demanded. (55) UEFA has produced to the Court such a collective agreement, Article 4 of which states that it is to be in force from 1 June 1992 to 30 May 1995. According to Article 18 of the agreement, in the event of a transfer a transfer fee is due if the player in question and the price determined have been included in a transfer list. Professionals aged 25 or over cannot be included in that list. Those players can therefore transfer in Spain (56) without a transfer fee being payable.

Under Article 21 of the collective agreement the player is entitled to 15% of the transfer fee in the event of a transfer.

32 In France the relevant rules can be found in the `Charte du Football Professionnel' (Professional Football Charter). Chapter 4 of Title III of the charter deals with the status of professional footballers.

Article 15(1) and (2) of that chapter provides:

`1. Any move by a player from the club with which he has signed his first professional contract to another club shall entitle the former club (the club which has trained him) to receive compensation for training.

2. The former club shall be entitled to compensation for training if:

- that club has trained the player as a "stagiaire" for a period of at least one season;

- that training has taken place in a recognized football training centre.' (57)

The amount of the compensation for training corresponds to the basic compensation or part thereof, according to the length of the training. The basic compensation corresponds in principle to the player's gross income in the preceding two years. If the training has lasted for more than three seasons, the full basic compensation is payable; if it lasted for only one season, the transfer fee is only 10% of that amount. (58)

A transfer fee is thus due only for the first transfer, and then only when the above conditions are fulfilled. Apart from such cases, no transfer fee is thus payable within France in the event of a transfer.

33 In the event of a transfer abroad, in accordance with Article 18 of that chapter the transfer fee due under Article 15 is doubled.

34 In Greece, according to UEFA's information, on expiry of a football player's former contract, he is free to join a new club without a transfer fee becoming due, in accordance with Article 29(1) of Law No 1958 of 5 August 1991. Article 29(3) of that law, however, permits the insertion in the contract between the club and the player of a term stating that he can leave the club only if he has paid it a specified sum. That sum must be stated in the contract. In practice, however, according to UEFA, it is usually the new club which pays the money.

35 In Italy Law No 91 of 23 March 1981 applies to football (and sport in general). Under Article 6 of that law, a transfer fee (`indemnità di preparazione e di promozione') may be demanded in the event of a transfer; the recipient must invest it for sporting purposes. Details of the calculation are governed by the rules of the Italian Football Association, adopted in implementation of that law.

36 Finally, the Netherlands should be mentioned. Article 49(1)(a) of the Netherlands Football Association's regulations, produced to the Court by UEFA, states that in the event of a transfer of a player abroad, the association will issue the transfer certificate provided for `in Article 12 of the FIFA Regulations' only after the transfer fee has been paid to the player's former club. (59)

IV - Rules on foreign players

37 From the 1960s on, many - but not all - football associations introduced rules restricting the possibility of engaging players of foreign nationality. It should be observed here, however, that in some cases the relevant rules are based on a definition of nationality for sports law purposes which not only focuses on nationality as such but also attaches importance to the fact that a player has already played for an association for a certain time. (60)

38 After the Court's judgment of 14 July 1976 in Donà v Mantero (61) negotiations took place between the European football associations and the Commission of the European Community. In 1978 UEFA undertook to the Commission to abolish the restrictions on the number of foreign players which a club can have under contract, in so far as they are nationals of Member States. Secondly, UEFA agreed to fix at two the number of such players who were allowed to take part in a match, with that restriction not applying to players who have been resident for five years in the territory of the relevant association.

39 After further discussions with the Commission, UEFA in 1991 adopted the so-called `3 + 2' rule, under which from 1 July 1992 the number of foreign players whose names can be included on the team-sheet may be restricted to not less than three per team, plus two players who have played in the country in question for five years uninterruptedly, including three years in junior teams. (62) That rule was to apply initially to clubs in the first division in the relevant Member State of the Community and to be extended to all non-amateur leagues by the end of the 1996/97 season.

40 Since that UEFA rule is merely a minimum, it is open to the individual associations to allow more foreign players. The English association, for instance, does not count players from Wales, Scotland, Northern Ireland and Ireland as foreigners. There is no restriction of the number of foreign players in Scotland.

41 The `3 + 2' rule also applies to club matches organized by UEFA itself. (63)

V - Facts of the main action and procedure in the national courts

42 Mr Bosman was born in 1964 and is a Belgian national. He joined the Belgian football association while still young and started playing - at first in the youth teams - for Standard Liège, a Belgian first division club. In 1986 he signed his first contract of employment with that club, thereby becoming a professional player. In May 1988 he was transferred for a transfer fee of BFR 3 000 000 from Standard Liège to a local rival, SA Royal Club Liégeois (hereinafter `RC Liège'), which until the end of last season also played in the Belgian first division. The contract with RC Liège, which ran until 30 June 1990, guaranteed Mr Bosman a gross basic salary of BFR 75 000 a month. With bonuses and other supplements, Mr Bosman's average monthly earnings amounted to about BFR 120 000.

43 In April 1990 RC Liège offered Mr Bosman a new contract for one season in which his basic wage was reduced to BFR 30 000, in other words, the minimum provided for in the URBSFA statutes. Mr Bosman refused to sign that contract and was placed on the transfer list. The transfer fee for a compulsory transfer was fixed at BFR 11 743 000, in accordance with the relevant rules of the association.

44 Since no club had expressed interest in a compulsory transfer, Mr Bosman eventually made contact with a French club, SA d'économie mixte sportive de l'Union Sportive du Littoral de Dunkerque (hereinafter `US Dunkerque'), who played in the French second division. That club engaged Mr Bosman by a contract concluded on 30 July 1990 which provided for a basic monthly salary of the equivalent of some BFR 90 000. US Dunkerque had already reached agreement with RC Liège on 27 July 1990 on the terms of the player's (temporary) transfer. It was agreed that RC Liège would transfer the player to US Dunkerque for one season in return for payment of BFR 1 200 000 compensation payable on receipt of the URBSFA clearance certificate. At the same time US Dunkerque was given an irrevocable option for the permanent transfer of the player for an (additional) sum of BFR 4 800 000. Both contracts - the contract between Mr Bosman and US Dunkerque and that between RC Liège and US Dunkerque - were, however, subject to the condition that they would become void if the clearance certificate from the Belgian association did not reach the French Football Federation by 2 August. The reason for that appears to have been US Dunkerque's intention to play Mr Bosman in an important match as early as 3 August 1990.

Because of doubts as to US Dunkerque's ability to pay, RC Liège failed to request URBSFA to issue the certificate, so that both contracts lapsed. As early as 31 July, moreover, RC Liège had Mr Bosman suspended and thereby prevented him for the time being from playing in the new season.

45 Mr Bosman thereupon applied to the Tribunal de Première Instance (Court of First Instance), Liège, on 8 August 1990. In addition to his main claim, he submitted an application for an interim order, seeking firstly an order for RC Liège and URBSFA to pay him BFR 100 000 a month until he found a new employer, secondly an order restraining the defendants from damaging his opportunities of finding employment by claiming or levying any sum on that occasion, and thirdly an order referring a question to the Court of Justice for a preliminary ruling. The court thereupon on 9 November 1990 ordered RC Liège provisionally to pay Mr Bosman the sum of BFR 30 000 a month, made the restraining order sought, and referred a question to the Court of Justice on the compatibility of the transfer system with Articles 3c and 48 of the EEC Treaty. The Court of Justice numbered the case as Case C-340/90.

46 On appeal, the Cour d'Appel, Liège, on 28 May 1991 quashed the decision of the Tribunal de Première Instance, Liège, in so far as it referred a question to the Court of Justice for a preliminary ruling. However, it upheld the order for RC Liège to pay the monthly amount to Mr Bosman, and ordered URBSFA and RC Liège to make Mr Bosman available to any club wanting to engage his services, without demanding compensation from that club. The Court of Justice thereupon removed Case C-340/90 from its register by order of 19 June 1991.

47 The interim order made it possible Mr Bosman to be engaged by the French second division club Saint-Quentin in October 1990. However, that contract was terminated at the end of the first season. In February 1992 Mr Bosman signed a new contract with the club Saint-Denis de la Réunion; that was also later terminated. After a long search, Mr Bosman concluded a contract on 14 May 1993 with Royal Olympic Club de Charleroi, who played in the Belgian third division. According to the national court, there are clear grounds for suspicion that despite the freedom of manoeuvre given him by the interim order, Mr Bosman was boycotted by all the European clubs which could have taken him on.

48 In the main proceedings, also brought before the Tribunal de Première Instance, Liège, on 8 August 1990, Mr Bosman first claimed damages from RC Liège provisionally assessed at BFR 30 000 000. That claim was based firstly on breach by the defendant of its contractual obligations and secondly on the unlawfulness of the transfer system. On 3 June 1991 URBSFA intervened in the proceedings, seeking a declaration that its rules and the corresponding UEFA rules were lawful. On 20 August 1991 Mr Bosman joined UEFA as a defendant. At the same time he brought an action against UEFA for a declaration that in so far as the UEFA rules provided for a transfer system which provided for a transfer fee to be demanded in the event of a change of clubs by a player whose contract had expired, and in so far as they did not put players from other Member States of the Community in the same position as national players with respect to access to the national competitions, they were null and void on the ground of breach of Articles 48, 85 and 86 of the EC Treaty. Mr Bosman also sought an order that UEFA terminate those practices and withdraw the void rules within 48 hours. On 5 December RC Liège joined US Dunkerque as a defendant.

49 On 9 April 1992 Mr Bosman submitted further applications to the Tribunal de Première Instance, Liège, in which he amended the original claim against RC Liège and also brought separate proceedings against URBSFA and developed the claims against UEFA. The action now sought an order restraining RC Liège, URBSFA and UEFA from hindering his freedom to conclude a contract with a new employer, and an order for those parties individually or jointly to pay him BFR 11 368 350 as compensation for the loss incurred from 1 August 1990, BFR 11 743 000 as compensation for the loss caused him by the application of the transfer system from the beginning of his career until 9 November 1990, and a provisional sum of BFR 1 for the costs of the proceedings. Mr Bosman further sought a declaration that the transfer rules and rules on foreign players of URBSFA and UEFA were not applicable to him. Mr Bosman also proposed that a preliminary ruling should be sought from the Court of Justice.

50 Two professional players' unions - the French Union Nationale des Footballeurs Professionnels (hereinafter `UNFP') and the Netherlands Vereniging van Contractspelers (hereinafter `VVCS') - intervened in the proceedings in support of Mr Bosman.

51 In its judgment of 11 June 1992 the Tribunal de Première Instance, Liège, rejected UEFA's objection that proceedings against it had to be brought in the courts of Switzerland and held that it had jurisdiction to decide the case pending before it. The intervention of UNFP and VVCS was declared admissible. The court also declared all the claims admissible. It held that RC Liège had acted unlawfully in causing Mr Bosman's transfer to US Dunkerque to fail, and was to compensate the resulting loss. However, the court refused RC Liège's application to join US Dunkerque as a defendant, since no fault on the part of the French club had been shown. Finally, the court made a reference to the Court of Justice for a preliminary ruling on the interpretation of Articles 48, 85 and 86 of the EC Treaty with reference to the transfer system. That case was given the number C-269/92 by the Court of Justice.

52 On appeal, the Cour d'Appel, Liège, in a judgment of 1 October 1993 upheld the decision, in so far as it had held that the interventions were admissible, the court had jurisdiction, and the claims were admissible. The Cour d'Appel also agreed with the Tribunal de Première Instance that the examination of the claims raised against RC Liège, URBSFA and UEFA involved an examination of the lawfulness of the transfer system. It therefore itself made a reference to the Court of Justice for a preliminary ruling. The Court of Justice thereupon removed Case C-269/92 from its register, as it had become devoid of purpose as a result of the new reference. Following a suggestion by Mr Bosman, the appellate court moreover concluded that the lawfulness of the rules on foreign players should also be examined, since Mr Bosman's claim in that respect was based on Article 18 of the Belgian Code Judiciaire (Judicial Code), which permits the bringing of actions `to prevent infringement of a right which is seriously threatened'.

On the other hand, the Cour d'Appel rejected UEFA's application to ask the Court of Justice whether the answer to the questions referred would be different if a transfer system allowed a player to play freely for his new club even if that club had not yet paid the transfer fee to his former club.

VI - The questions referred to the Court of Justice

53 The Cour d'Appel, Liège, thus referred the following questions to the Court of Justice for a preliminary ruling:

`Are Articles 48, 85 and 86 of the Treaty of Rome of 25 March 1957 to be interpreted as

(i) prohibiting a football club from requiring and receiving payment of a sum of money upon the engagement of one of its players who has come to the end of his contract by a new employing club;

(ii) prohibiting the national and international sporting associations or federations from including in their respective regulations provisions restricting access of foreign players from the European Community to the competitions which they organize?'

VII - Further procedure and procedure before the Court of Justice

54 URBSFA lodged an appeal in cassation against the judgment of the Cour d'Appel, Liège, and applied for the decision to be extended to RC Liège, UEFA and US Dunkerque. The Cour de Cassation dismissed the appeal on 30 March 1995 and held at the same time that the dismissal of the appeal made the applications for extension of the decision devoid of purpose. (64)

55 In the proceedings before the Court of Justice Mr Bosman, URBSFA, UEFA, the French Government, the Italian Government and the Commission submitted written observations. They also took part in the hearing before the Court on 20 June 1995. On the occasion of that hearing, the Danish Government and the German Government also expressed their opinion on the reference for a preliminary ruling.

B - Opinion

I - Preliminary observation

56 The importance of the present case is obvious. The answer to the question of the compatibility with Community law of the transfer system and the rules on foreign players will have decisive influence on the future of professional football in the Community.

57 A few figures may suffice as examples to demonstrate the importance of the transfer system in professional football today. A study by an English firm of accountants states that the clubs of the English first division - the Premier League - spent nearly £51 000 000 (some ECU 62 000 000 at the then exchange rate) on transfer fees in the 1992/93 season. (65) According to press reports, the 18 clubs in the Italian first division spent the equivalent of more than DM 96 000 000 (over ECU 51 000 000) on foreign players alone for the 1995/96 season. (66) The most expensive transfer in football history to date took place in Italy and cost the new club a transfer fee of the equivalent of about ECU 19 000 000. (67)

As to the rules on foreign players, it should be noted that professional clubs in the Community already employ a considerable number of players today from other Member States and non-member countries. According to figures supplied by URBSFA, for example, the playing staff of the 18 clubs in the Belgian first division at the beginning of the 1993/94 season comprised 398 players with Belgian nationality and 175 foreign players, although only 61 of them were regarded as foreign for the purposes of the rules on foreign players. (68) In the event that the Court declares the rules on foreign players to be contrary to Community law, it is to be expected that the number of footballers from the Community earning their living with a club in another Member State will increase even more.

58 Transfer rules and rules on foreign players also exist in some form or other in other sports played in the Community. The Court's ruling will therefore be of great importance for those sports too.

59 It is now over five years since the events which were at the origin of the main action before the Cour d'Appel, Liège, took place. Since then several courts have dealt with the case. The Court of Justice has already been asked three times for a preliminary ruling in this connection, but - as stated above - the first two requests did not lead to a judgment. If the Court of Justice makes a decision on the substance in the present proceedings, that will by no means be the end of the national proceedings. The time which a professional footballer has in which to pursue his career is, however, limited, as experience has shown. Not only the importance of the case for football, but also the interests of Mr Bosman therefore in my opinion require the present case to be brought to a decision as swiftly as possible. I have borne that in mind when drafting this Opinion.

60 It should be observed that the scope of the questions which have been referred is restricted, since they do not concern the entire sphere of the sport of football. The first question, on the transfer system, relates to the transfer of a player who is under contract with a club. The question thus relates only to players who play football for wages, in other words, to the field of professional football. The field of amateur football is thus not included. The Court will therefore not have to decide whether it is compatible with Community law to demand a transfer fee when a player, who was previously an amateur and now signs a contract as a professional, changes clubs. The second question appears at first sight to be broader and, if construed literally, could even be understood as calling for an examination of the compatibility with Community law of all rules on foreign players - regardless of whether it is the professional or amateur sphere which is concerned and possibly even relating to all types of sport. It is clear, however, from the order for reference that the question is meant to relate only to the rules on foreign players in professional football. All those who have taken part in the present proceedings have correctly assumed that the question is to be understood in that sense.

61 As justification of the rules at issue in the present proceedings, the associations concerned have put forward not only sporting but also economic considerations. All those arguments have been discussed in detail, in particular by Mr Bosman himself, but also by the Commission and the other participants in the proceedings. It is in my opinion self-evident in view of the importance of the case that those arguments should be examined in depth.

62 The outcome of these proceedings is of interest to a large number of citizens in the Community who are football enthusiasts. Many play the game themselves or work - often on a voluntary basis - in their clubs in other ways. Perhaps even greater is the number of those who follow the game as spectators and are especially interested in matches in the professional leagues. Precisely those factors oblige the Court of Justice, and myself most of all, to consider the questions referred objectively and without prejudice.

II - Admissibility of the questions referred

1. The positions of the parties

63 In the opinion of UEFA, the questions which have been referred for a preliminary ruling are inadmissible and should therefore not be answered by the Court. UEFA considers that Mr Bosman's transfer to US Dunkerque failed precisely because the UEFA transfer rules which should have been applied in that case were not complied with. Had its rules been applied, the transfer could have been carried out and the proceedings would not have arisen. Referring to the Court's case-law, which I shall discuss further below, UEFA submits that an answer to the questions referred is not necessary for the decision in the proceedings pending before the Cour d'Appel, Liège. It therefore has grave doubts as to admissibility of the first question. It considers that the second question, on the other hand, is a purely hypothetical one, since Mr Bosman's career was at no time hindered by the rules on foreign players. The present case, it argues, is an artificially constructed procedure for political purposes: those concerned are in fact making an attempt to get the Court of Justice to rule on the compatibility with Community law of practices which have nothing to do with the real dispute. The national court gave no reasons at all why an answer to its second question should be necessary for the outcome of the main proceedings.

Should the Court nevertheless decide to answer the questions in whole or in part, UEFA considers that it should in any event proceed with the greatest caution, since those questions call into question the organization of football as such.

64 In its written observations URBSFA expressed no opinion on the admissibility of the questions referred. At the hearing before the Court it submitted that two sets of proceedings should be distinguished in the present case. The first was a dispute between Mr Bosman and RC Liège. That could be resolved without a preliminary ruling by the Court being required. The second was an artificial dispute brought by certain interest groups of professional players against UEFA and URBSFA. URBSFA also referred on this point to the decision of the Cour de Cassation in the main proceedings. It indicated that it was desirable that the Court of Justice should take that decision into account when considering the case.

65 The French, Italian and Danish Governments also adopted the position that the rules on foreign players were of no relevance for the main proceedings. In their view, the dispute concerned only the admissibility of the transfer system. The second question referred was therefore a purely hypothetical question. The French Government noted inter alia that the rules on foreigners were not even mentioned in the claim originally brought by Mr Bosman.

After several of those appearing at the hearing before the Court had referred to the abovementioned decision of the Cour de Cassation, the representative of the French Government expressed the opinion that it appeared that as a result of that decision the Court no longer had to answer the second question, as that question was possibly non-existent, or no longer existent.

66 The Commission, in its written observations, at first put forward the view that the second question referred was inadmissible, since it was a hypothetical one. At the hearing before the Court, the representatives of the Commission indicated that the Commission's view had changed. I understand those statements as meaning that the Commission is now inclined to regard the second question too as admissible, although that was not expressly stated.

67 Mr Bosman emphatically denies that the present case is an artificial dispute. He points out that the national court declared the various applications made by him admissible, inter alia on the basis of Article 18 of the Belgian Code Judiciaire, which permits preventive actions for the purpose of averting threatened serious damage. According to the national court's findings, the dispute therefore requires, he says, in accordance with the relevant provisions of Belgian law, an examination of the lawfulness of the transfer system and the rules on foreign players. The Court of Justice can scarcely call into question that interpretation by the Cour d'Appel, Liège, of provisions of national law. If it nevertheless were to do so, the process of cooperation between national courts and the Court of Justice, which is the basis of Article 177 of the EC Treaty, would be damaged. Mr Bosman argues that the national court was aware of the case-law of the Court of Justice on the admissibility of references for a preliminary ruling and it more than fulfilled the obligations arising therefrom, in particular the obligation to give reasons for making the reference.

Nor is this case, in Mr Bosman's view, an abuse of the procedure under Article 177 of the EC Treaty. With respect in particular to the rules on foreign players permitted under UEFA's regulations, he has an interest in having them declared invalid or inapplicable, since they are the foundation of the rules of the various European football associations which reduce his chances of finding employment in other Member States.

In his view, the questions therefore comply with the conditions of admissibility which follow from the Court's case-law.

2. Article 177 and the Court's case-law on the admissibility of references for preliminary rulings

68 Under the first paragraph of Article 177 of the EC Treaty, the Court of Justice is to give preliminary rulings on the interpretation of the EC Treaty and on the validity and interpretation of the rules and measures adopted on the basis of that Treaty.

The second paragraph of Article 177 of the EC Treaty (69) reads as follows:

`Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.'

It follows from the wording of that provision that it is the national courts which decide on whether it is necessary to obtain a preliminary ruling from the Court of Justice. Power for the Court to refuse to answer such references for preliminary rulings is not provided for in Article 177.

69 The Court has also confirmed in consistent case-law that it is `solely for the national courts before which actions are brought, and which must bear the responsibility for the subsequent judicial decision, to determine in the light of the special features of each case both the need for a preliminary ruling in order to enable them to deliver judgment and the relevance of the questions which they submit to the Court'. (70) That is also supported by the fact that the national court, which alone has direct and precise knowledge of the facts of the case, is in the best position to assess those points. (71) Where the questions put by national courts concern the interpretation of Community law, `the Court is, in principle, bound to give a ruling'. (72) The Court has nevertheless in a number of cases allowed exceptions to that principle and declined to answer some or all of the questions referred. (73)

70 If one attempts a systematic classification, one reaches the conclusion that various groups of cases can be distinguished. I am inclined to consider that three groups of cases can essentially be distinguished. The first group consists of those cases where the national court has not provided the Court of Justice with all the information it requires to be able to make a proper decision. Secondly, the Court has refused to answer the questions referred in a series of cases in which they clearly had no connection with the dispute before the national court. In the third group, finally, are the cases in which the Court declined the reference for a preliminary ruling because it was of the opinion that the national court had abused the procedure under Article 177. I also include in the last group the cases where the Court considered that the questions referred were general or hypothetical ones. The classification is of course open to debate, especially as the boundaries between the second and third groups I have distinguished are fluid. Thus one could perfectly well take the view that the last cases mentioned should be put into the second group. For reasons which I will explain later, however, the above classification seems to me to be more useful.

71 The answer to the question of the admissibility of the questions put by the Cour d'Appel, Liège, in the present case in my opinion requires the Court's previous decisions in this field to be examined first. In so doing I shall use the classification I have just described.

72 The first group has only very recently become of substantial importance. The Court admittedly observed earlier that `the need to afford a helpful interpretation of Community law' makes it essential to describe to the Court the legal and factual context in which the interpretation sought is to be placed. (74) For the Court to be able to perform its task, `it is essential for national courts to explain, when the reasons do not emerge beyond any doubt from the file, why they consider that a reply to their questions is necessary to enable them to give judgment'. (75) In cases where the necessary information has not been provided, the Court has stated that it is not in a position effectively to answer the questions referred. (76)

73 That point of view has, however, only become of more significance since the Court's judgment of 26 January 1993 in Telemarsicabruzzo. (77) In that judgment the Court started from its previous case-law by stating 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 questions are based'. (78) The Court emphasized that that was especially the case in the field of competition, which `is characterized by complex factual and legal situations'. Since the orders for reference contained no such details, the Court declined to answer the questions referred. (79)

It can scarcely be doubted that the Court was thereby following the advice of the Advocate General, who had recommended `a slightly more restrictive attitude on the part of the Court' with respect to the question of the requirements for references for preliminary rulings. (80)

74 The Court has since confirmed that attitude in several decisions. (81) It has noted at the same time that the purpose of that requirement is not only to enable the Court to give proper answers, but also to enable the Member States and other interested parties usefully to exercise their right to submit observations pursuant to Article 20 of the EEC Statute of the Court. (82)

75 The thinking behind all those cases is obvious. The Court of Justice can as a rule give a useful answer to the questions put by a national court only if it knows the circumstances of the national proceedings. I am, however, of the opinion that a benevolent approach is required here. Rejection of a reference for a preliminary ruling on the ground of an inadequate account of the factual and legal context should therefore be restricted to exceptional cases. In several of the cases I have cited, the Court seems to me to have applied an inappropriately strict standard.

76 The first of the cases to be included in the second group is the Court's judgment in the Salonia case. (83) In that judgment the Court noted that Article 177 is based on `a distinct separation of functions between national courts and the Court of Justice' and does not allow the latter to criticize the reasons for the reference. The Court then stated:

`Consequently, a request from a national court may be rejected only if it is quite obvious that the interpretation of Community law or the examination of the validity of a rule of Community law sought by that court bears no relation to the actual nature of the case or to the subject-matter of the main action.' (84)

77 In Salonia those conditions were not fulfilled, and the Court consequently answered the questions put to it. It acted differently in Falciola, (85) a 1990 case which I shall briefly consider here as a representative of this group of cases. The main action concerned a road-building project which, according to the court making the reference, fell within the scope of certain EC directives on public works contracts. The questions had no visible connection with the main action. It was clear from the grounds of the order for reference that the order's ultimate purpose was to obtain a ruling from the Court of Justice on whether, following the enactment of Italian Law No 117/88 of 13 April 1988 on compensation for damage caused in the exercise of judicial functions and the civil liability of the judiciary, the Italian courts could still offer whatever guarantees Community law might require to ensure that they were able to carry out their duties as Community judges satisfactorily. (86) The Court reached the conclusion that the Italian court was concerned only with the possible `psychological reactions' of certain judges as a result of the enactment of that law. Since there was clearly no connection with Community law, the Court held that it had no jurisdiction to rule on the questions submitted to it. (87)

78 The Court has repeated and confirmed the abovementioned reasoning in the Salonia judgment, not only in Falciola but also in a large number of other cases. (88)

79 It must be observed, however, that in a further series of decisions the Court has merely focused on whether the interpretation of Community law sought `bear[s] no relation' to the main action. (89) The number of those decisions invites the conclusion that the Court in each case deliberately omitted the additional factor that the lack of a connection must be manifest. Whether that was actually the case appears doubtful, however, for several reasons. First, all those judgments refer to the decision in Salonia, where the possibility of not answering a question submitted was made to depend precisely on the presence of that additional factor. Second, in an order of 16 May 1994 the Court spoke of its `consistent case-law', with an express reference to the judgment in Salonia and the order in Falciola. (90) Finally, no chronological order can be discerned. Decisions in which that criterion is mentioned alternate with decisions in which there is no such mention.

80 In any event it should be observed that only the opinion that the Court is entitled to reject a request for a preliminary ruling only if it quite manifestly bears no relation to the main action appears acceptable. It should be remembered that the Court's practice is not supported by the wording of Article 177. As the Salonia judgment rightly states, that provision is characterized by a `distinct separation of functions' between the Court of Justice and the national courts. An examination by the Court of Justice of the need for a preliminary ruling can therefore take place only exceptionally, if at all. For that purpose it is necessary that this power of the Court is limited to cases where there is manifestly no connection between the main action and the questions submitted. If the only criterion was the objective lack of such a connection, the division of functions provided for in Article 177 would be turned upside down. I do not regard that as acceptable.

81 The third group of cases, finally, starts with the Court's decisions in Foglia v Novello. The main action in the Italian court concerned a dispute between an Italian wine merchant and a customer who was also Italian. Mrs Novello had agreed with the wine merchant that the cases of Italian liqueur wine she had bought would be sent to France and that she would not be liable for any duties charged by the Italian or French authorities which were contrary to the provisions of the EC Treaty on the free movement of goods. A similar clause was included in the contract between the wine merchant and the transporting undertaking. The French authorities levied certain duties on the imported goods, which the transport firm paid and charged to the wine merchant. He then sued Mrs Novello for payment of that amount. The court in which the action was brought submitted several questions to the Court of Justice on the compatibility of the French tax rules with the EC Treaty. In its judgment of 11 March 1980 the Court declined to answer those questions, pointing out in particular that the `artificial nature of this expedient' was unmistakeable. (91)

82 The national court thereupon made another reference to the Court for a preliminary ruling. In its judgment (92) the Court confirmed its refusal to answer the questions submitted and explained the reasons for its attitude in more detail.

Its starting-point was that in principle the national courts decide on the need for a preliminary ruling and have a `power of appraisal' in so doing. (93) There were, however, certain limits:

`It must in fact be emphasized that the duty assigned to the Court by Article 177 is not that of delivering advisory opinions on general or hypothetical questions but of assisting in the administration of justice in the Member States. It accordingly does not have jurisdiction to reply to questions of interpretation which are submitted to it within the framework of procedural devices arranged by the parties in order to induce the Court to give its views on certain problems of Community law which do not correspond to an objective requirement inherent in the resolution of a dispute. A declaration by the Court that it has no jurisdiction in such circumstances does not in any way trespass upon the prerogatives of the national court but makes it possible to prevent the application of the procedure under Article 177 for purposes other than those appropriate for it.' (94)

The Court stated in addition that in exercising the jurisdiction conferred on it by Article 177 it must have regard `not only to the interests of the parties to the proceedings but also to those of the Community and of the Member States'. It would be failing in its duty if it remained indifferent to the assessments made by the national courts of the need for preliminary rulings `in the exceptional cases in which such assessments may affect the proper working of the procedure laid down by Article 177'. (95) The `spirit of cooperation' which characterizes Article 177 requires that `the national court, in the use which it makes of the facilities provided by Article 177, should have regard to the proper function of the Court of Justice in this field'. (96)

83 The finding in that decision that the Court does not have the function under Article 177 of expressing an opinion on general or hypothetical questions has since been repeated by the Court in a number of judgments. (97) It must be observed, however, that that aspect represents only one part of the reasoning of the Court in its decisions in Foglia v Novello. Those judgments were in my opinion ultimately based on the consideration that the procedure under Article 177 must not be misused. In the particular case the misuse no doubt consisted in the fact that the parties to the action were apparently colluding in attempting to use an artificial dispute constructed by them in Italian proceedings to call into question the compatibility of French provisions with Community law.

84 That the basis of that case-law is indeed the idea of misuse of procedure can be seen especially clearly from two already cited judgments of 1990, in which the justification for the cases in the second group is also mentioned. In Gmurzynska-Bscher, for instance, the Court qualified as follows the statement of principle that it is for the national courts to decide on the need for a preliminary ruling:

`It would be otherwise only in cases where either it appears that the procedure of Article 177 of the Treaty has been misused and been resorted to, in fact, in order to elicit a ruling from the Court by means of a spurious dispute or if it is obvious that the provisions of Community law submitted for the interpretation of the Court cannot apply.' (98)

An identical statement can be found in the Dzodzi judgment. (99)

85 It need not be demonstrated further that there are no objections in principle to that case-law. If the procedure under Article 177 is misused, the Court of Justice can refuse to answer the questions submitted to it. It must, however, be examined very closely whether such misuse is in fact present.

3. Examination of the admissibility of the questions submitted by the Cour d'Appel, Liège

86 If the questions submitted by the Cour d'Appel, Liège, are examined in the light of the above considerations, there can surely be no reasonable doubt that the cases in the first group are not relevant here, since the national court can by no means be criticised for not having informed the Court of Justice of the factual and legal context of the questions it has referred.

87 The order for reference comprises some 80 closely written pages. It not only describes the factual circumstances of the case in detail, it also explains the legal considerations which induced the national court to regard the claims as admissible and refer the questions to the Court. Few orders for reference from national courts are as thorough and detailed as this one.

88 It is admittedly correct that the order for reference deals mainly with questions relating to the transfer system. The problem of the rules on foreign players, on the other hand, is dealt with comparatively briefly. Despite that brevity, however, the essential points of the national court's reasoning are clear. They may be summarized as follows. The corresponding part of Mr Bosman's claim seeks a declaration that those rules on foreign players are invalid or are not applicable to him. That application is based on the claim that the existence of those rules results in a serious threat to Mr Bosman's future career. The admissibility of that application is in the opinion of the Cour d'Appel, Liège, to be assessed with reference to the situation which existed when the application was lodged. At that time, in the national court's opinion, Mr Bosman fulfilled the necessary conditions for an action under Article 18 of the Belgian Code Judiciaire to be admissible, since it could not be excluded that on expiry of his contract with the club in Réunion he might find a new club in the Community outside Belgium. The national court therefore held that the claim was admissible in that respect.

In that court's view it was consequently possible that Mr Bosman might seek to find a foreign club within the Community. The rules on foreign players would prove to be an obstacle in that search. According to that view, Mr Bosman thus had an interest in obtaining a declaration in advance that those rules were not to be applied in his case. For that purpose a preliminary ruling was to be obtained from the Court of Justice, since the compatibility of the rules on foreign players with Community law had not yet altogether been clarified.

89 Those considerations are concisely expressed, but make it possible to follow the national court's reasoning without difficulty. That is all that matters here. Whether the national court's opinion is correct or merely plausible is not relevant in this connection. The Court of Justice must simply be put in a position to make a proper preliminary ruling in awareness of the circumstances of the main proceedings. In my opinion, the order for reference allows it to do so.

90 A more difficult question is whether the admissibility of the request for a preliminary ruling might perhaps give rise to doubts against the background of the cases in the second group. In other words, the point is whether the questions submitted manifestly have no relation to the `actual nature of the case or to the subject-matter of the main action'. That difficulty only arises, however, for the second question. The attempts by UEFA and URBSFA to cast doubt on the admissibility of the first question are not convincing. Whether Mr Bosman's transfer to US Dunkerque would have come to pass if the UEFA rules which were allegedly applicable had been applied correctly, is not decisive for the present case. That point relates at most to resolving the question of who is to be held directly responsible for the failure of that transfer. Mr Bosman has, however, raised the broader question of whether those transfer rules as such are lawful. In order to decide that question, a preliminary ruling by the Court of Justice is undoubtedly necessary. Should the transfer rules prove to be unlawful, that will influence the decision of the national court. There is thus certainly a connection between the interpretation of Community law sought by the first question and the main action.

91 The second question too is connected with the `subject-matter' of the main action. That subject-matter is defined by the plaintiff's claims. In the proceedings before the national courts the plaintiff has sought a declaration that the rules on foreign players are not applicable to him. That head of claim is based on the assertion that those rules infringe Community law. Given those circumstances, I do not see how there can be any doubt that there is a connection between the interpretation of Community law sought and the main action.

92 That is confirmed, in my opinion, by looking at the previous decisions in which the Court has declined in such cases to answer the questions submitted to it. The facts behind the decision in Falciola have already been described. (100) In that case it was easy to see that the questions referred had nothing to do with the main action. That is not the case here, as I have already shown. In Lourenço Dias (101) the proceedings before the Portuguese court which made the reference concerned a new vehicle constructed in 1989 and imported from France. The Court of Justice declined to answer six of the eight questions submitted, on the ground that they `manifestly bore no relation to the facts at the origin of the main action'. (102) Two examples may suffice to make that clear. The first question submitted related to the import of secondhand cars, while the seventh question concerned motor vehicles built before 1951. (103) In the present case, on the other hand, it is plain that the questions submitted relate to the factual situation which the national court had to assess. In the second order it made in Monin Automobiles the Court found that the questions submitted could only be relevant to a possible action to establish the liability of the French authorities or an action before the French competition authorities. The judge making the reference, however, merely had to carry out certain functions in the winding-up proceedings. Neither of the two actions referred to had been brought before him or could be brought before him. The judge therefore did not have the function of applying the provisions of Community law at issue. (104) In the present case, by contrast, the national court has held precisely that it has jurisdiction to decide the action brought before it. Even more important in this context is the Corsica Ferries judgment. (105) In that case the Court held that the Commission had rightly observed that the application which was before the national court related only to certain facts. The questions which related to other facts were consequently rejected. (106) As I have already mentioned several times, however, Mr Bosman's application in the proceedings before the national courts is precisely for a declaration that the rules on foreign players are not applicable to him. The order in La Pyramide is very lapidary, but the reasoning appears to correspond to that used by the Court in Corsica Ferries. (107)

93 There is therefore in my opinion a connection between the second question submitted and the subject-matter of the main action. But even if that conclusion were not accepted, it would have to be observed that a rejection of the question submitted would be possible only if such a connection was manifestly lacking. That at least can be ruled out, in view of what has been said above.

94 The grounds stated in the decisions which fall within this group of cases, however, not only focus on the absence of a connection between the interpretation of Community law sought and the subject-matter of the main action, but also refer to the fact that such a connection must exist also with respect to the actual nature of the main action. (108) That consideration, which played no part in the judgments in this group which have been discussed above, clearly links up with the reasoning used by the Court in judgments in the third group of cases. The question of the `actual nature' of a dispute can only mean that it must be examined whether the case is basically a fictitious or artificial dispute. I shall address this point in a moment, when I discuss the relevance for the present proceedings of the decisions in the third group of cases.

95 First, however, the objections based on the decision of the Cour de Cassation of 30 March 1995 must still be mentioned, as this seems to me to be the most sensible place to discuss them. The French Government's submission that the second question referred may have become otiose as a result of that decision does not withstand examination. That second question was not directly at issue in the cassation proceedings and was therefore not discussed by the Cour de Cassation. In the grounds stated for its decision that court demonstrates its view that the Liège Cour d'Appel had not, in its judgment of 1 October 1993, declared admissible Mr Bosman's application for a declaration that the URBSFA rules on foreign players did not apply to him. That may well be regarded as making a correction to the judgment of the court making the reference, since that court - as mentioned above - had regarded all the claims as admissible. In my opinion, however, the decision is limited in this respect to a correction of a possible mistake by the Liège Cour d'Appel. The Belgian association's rules on foreign players can indeed in no way affect the rights of Mr Bosman as a Belgian national. However, that has no consequences for the assessment of the second question submitted, relating to the rules on foreign players, since Mr Bosman also brought a corresponding application for a declaration of non-applicability against UEFA, and that application concerned the UEFA rules or the rules of the national associations based on them.

96 Let us now turn to the cases in the third group, which are of decisive importance for the admissibility of the questions submitted. As I have already mentioned, several of the participants in the proceedings are of the opinion that the second question is an attempt to induce the Court to express its opinion on general or hypothetical questions. UEFA and URBSFA also submit that this case is a fictitious or artificial dispute.

97 It cannot be denied that the one and the other opinion both have a certain justification. That applies only to the second question submitted, however. With respect to the question on the compatibility of the transfer system with Community law, there can be no doubt that Mr Bosman is pursuing a concern which is both legitimate and understandable. As a result of the - correct or incorrect - application of the transfer rules Mr Bosman has suffered damage, for which he would like to obtain compensation from the national courts. If in the process he also challenges the lawfulness of the transfer system as such, he is perfectly entitled to do so.

It is less obvious, however, why he is also fighting the rules on foreign players. It does not appear that Mr Bosman has as yet been obstructed in any specific case, by the application of those rules, in the exercise of his professional activity as a footballer. It has rightly been observed that he has already played for foreign clubs. His difficulties in finding a new club after the events of summer 1990 are - disregarding other circumstances - probably attributable less to his nationality than to the boycott which appears to have been directed against him. It would therefore be quite possible to adopt the view that the possibility of Mr Bosman suffering a disadvantage in future because of the application of the rules on foreign players is altogether questionable and purely hypothetical.

Moreover, it is noticeable that the question as to possible disadvantages resulting from the application of the rules on foreign players played no part either in the action originally brought or in the proceedings for an interim order. It appears that the point became important only with the claim lodged by Mr Bosman in August 1991. The reasoning by which the court making the reference seeks to support its opinion that this question was raised in Mr Bosman's applications from the outset does not seem to me to be free of all doubt.

98 The Court could therefore, on the basis of its previous case-law, indeed reach the conclusion that the second question submitted should be rejected as inadmissible. I would, however, emphatically recommend the Court not to take that step. In my opinion it is not enough to focus on the fact that the question is based on a - possibly - hypothetical factual situation. Instead the spirit and purpose of the possibility of rejecting questions submitted for a preliminary ruling should be the focus. Such an examination leads in my opinion to the conclusion that rejection of the question is possible, but neither necessary nor appropriate. The reasons for that conclusion will be explained below.

99 First, however, the question of the hypothetical nature of the question referred should be considered briefly. The proceedings before the Belgian courts relate to an action which is intended to prevent the occurrence of future damage. It surely needs no lengthy explanations to show that the fact that the damage in question is damage which is to be expected to occur only in the future is of no relevance in the present connection. A question is not hypothetical simply because the fact on which it is based has not yet occurred. A preventive action for a declaration is an important means of securing effective protection of legal rights. A court hearing such an action must therefore also have the possibility of asking the Court of Justice for an interpretation of the applicable provisions of Community law.

On the other hand, it is clear that that possibility cannot be unbounded. Since the Court of Justice, as it has itself rightly held, has the duty under Article 177 of the EC Treaty of `assisting in the administration of justice in the Member States', (109) it need only intervene where its help is actually needed. That is not the case with purely hypothetical questions, the answer to which does not contribute to the administration of justice in the Member States. That must also apply to actions of the present kind.

100 Now it is of course true that the admissibility of such questions is subject to restrictions under national law too, for comparable reasons. The national courts are to act only where this is really necessary. According to the national court, the abovementioned Article 18 of the Belgian Code Judiciaire therefore imposes a number of conditions on the admissibility of such an action. Under that article, the action is inter alia admissible only if the threat to the right in question is grave and serious, not merely hypothetical. Since the Cour d'Appel, Liège, declared the action admissible in the present case, it was evidently of the opinion that the dispute was by no means purely hypothetical.

101 That view taken by the national court is not binding on the Court of Justice. What the Cour d'Appel, Liège, had to decide was the admissibility of the action pending before it. What the Court of Justice, by contrast, has to decide, in the context of Article 177 of the EC Treaty, is whether the question referred for a preliminary ruling would occasion it to give an opinion on a hypothetical question. It is clear, however, that the Court must take the national court's opinion into account. It follows from the Court's consistent case-law that the national court is best able to assess whether a preliminary ruling from the Court of Justice is required. The Court should depart from that assessment only in well-founded exceptional cases. That circumstance itself is a reason for not regarding the relevant question in the present case as inadmissible.

102 Furthermore, the national court was aware of the case-law of the Court of Justice on the possible inadmissibility of questions referred for a preliminary ruling and summarized it briefly in its order for reference. If the Cour d'Appel nevertheless submitted the second question, that means that regardless of that case-law it considered that it required an answer of the Court of Justice to that question, in order to be able to reach a decision in the proceedings pending before it. That too will have to be taken into account by the Court in this connection.

103 As I have already indicated above, however, the question of the possibly hypothetical nature of the question submitted does not seem to me to be decisive. The question should rather be asked whether there is in the present case a misuse of the Article 177 procedure which would entitle the Court to reject the question submitted. One must therefore ask whether the procedure under Article 177 has been used in the present case `for purposes other than those appropriate for it', as the Court put it in Foglia v Novello. (110)

104 In that decision the Court observed that the procedure under Article 177 confers on it the task of `assisting in the administration of justice in the Member States'. (111) That assistance consists in giving national courts an answer which is binding on them on the interpretation of Community law, which they require in order to decide the cases pending before them. That task is an emanation of the Court's general duty, laid down in Article 164 of the EC Treaty, of ensuring that in the interpretation and application of the EC Treaty the law is observed. In my opinion, therefore, the Court need act under Article 177 of the EC Treaty only in so far as that is necessary to fulfil that task. The Article 177 procedure would thus be misused if questions were referred to the Court when it would not contribute to the administration of justice in the Member States by answering them.

105 To decide whether one can speak of such a misuse in the present case, the two most important of the Court's judgments in this field - Foglia v Novello and Meilicke - should be examined more closely. In the Meilicke (112) case, the main action was an action before a German court in which a shareholder was suing the company's board for certain information. That information directly concerned an increase in capital by the company and the application of the funds obtained thereby. What the shareholder was really concerned with, however, was whether the doctrine of disguised contributions in kind developed by the Second Senate of the German Bundesgerichtshof (Federal Court of Justice) was compatible with the relevant provisions of Community law. The questions submitted concerned the interpretation of those provisions of Community law. The national court stated that the action pending before it would have to be dismissed if the said case-law of the Bundesgerichtshof was incompatible with Community law.

The Court of Justice observed that, according to the national court, it was not certain that those decisions of the Bundesgerichtshof applied at all in the particular case, and concluded that the questions which had been submitted were hypothetical questions. At the same time it adopted the position that the national court had not provided it with all the information it needed in order to answer the questions. For those reasons the Court rejected the questions as inadmissible. (113)

That reasoning leaves many points open. It is easier to understand if one compares it with the clear statements of Advocate General Tesauro. The Advocate General observed that in the proceedings before the national court (and even before then) Mr Meilicke had argued that the relevant case-law of the Bundesgerichtshof was contrary to Community law. Mr Meilicke was thus advancing an argument which would necessarily lead to his claim being dismissed. Advocate General Tesauro thus concluded, correctly and succinctly, that `the dispute before the national court [had] been visibly "orchestrated" by Mr Meilicke himself'. (114)

106 The present case cannot be compared with that one. The question submitted relates directly to Mr Bosman's claim. Mr Bosman furthermore argues that the rules on foreign players are contrary to Community law. The correctness of that argument is one of the conditions for his claim to succeed before the Belgian courts.

107 The facts of Foglia v Novello have already been described. Three points catch the eye. First, it is obvious that in that case all the parties were clearly collaborating to obtain a preliminary ruling from the Court of Justice. Second, the Court clearly attached importance to the fact that in that case legal provisions of one Member State were being called into question by an artificial procedure in another Member State. That is not stated in the judgment, but the reference to the interests of the Member States which are to be taken into account by the Court (115) is in my opinion clear enough. Third, it is evident that the rejection of the questions submitted had no consequences, in that any court confronted with an actual dispute concerning those provisions of French law retained the possibility of asking the Court of Justice for a preliminary ruling on those points. Thus the firm which transported the shipment of wine, for instance, or another of the parties could have challenged the determination by the French authorities of the duties in question before the competent French courts. Those courts could then have requested the Court of Justice for a preliminary ruling.

108 In the present case it is clear to begin with that the dispute before the Belgian courts could be `artificial' or `fictitious' at most with reference to the plaintiff's application. The defendant associations precisely disagree with Mr Bosman's way of proceeding and argue that the question referred is inadmissible. Not least the hearing before the Court made it clear that the present case is a genuine (legal) dispute and by no means a `fictitious' or `artificial' one.

109 As to the question whether the main action has perhaps been brought before a court of a Member State in a manner which could endanger the rights of other Member States or other parties from other Member States, UEFA at most could be affected, its base being not in Belgium but in Switzerland. UEFA indeed used that argument in the main action to challenge the jurisdiction of the Belgian courts. It is beyond doubt, however, that the rules of UEFA apply inter alia in all the Member States of the Community. The courts of each of those Member States are therefore in a position to raise the question of the compatibility of those rules with Community law. Finally, it should be observed that that question could not be discussed at all in the Swiss courts or referred to the Court of Justice under Article 177 of the EC Treaty.

110 I therefore conclude that the questions which have been submitted are admissible both under the wording of Article 177 and under the most recent case-law on it.

111 Even if one wishes to challenge that conclusion in the light of the recent case-law, one cannot but concede that the Court of Justice is at most entitled, but by no means obliged, to dismiss the question(s) submitted in this case as inadmissible. The question therefore arises whether the Court ought to make use of that possibility.

112 The reason why I answer that question in the negative is that I cannot see how the question of the compatibility of the rules on foreign players with Article 48 of the EC Treaty (it may be different with Articles 85 and 86) could reach the Court in any other way. Although the Commission has long criticized those rules, it has not brought an action under Article 169 for breach of Treaty obligations, since the prospects of success of such an action appeared to it to be uncertain for procedural reasons. (116) No request by a national court for a preliminary ruling concerning those rules has reached the Court since the Donà case (to be discussed below) in 1976. That seems to me not to be a matter of chance. Those affected are either unwilling or unable to have the matter clarified by the courts.

113 That is confirmed by recent experience. In at least two cases already the rules on foreign players have played a decisive part, without those affected instituting court proceedings against them. (117) In one case, in the Netherlands, the match was replayed. (118) The second case occurred recently in Germany. In spring 1995 1. FC Nürnberg, threatened with relegation, were at home to SV Meppen in a German second division match. A few minutes before the end Nürnberg, who were leading 2-0, by mistake brought on as substitute a fourth foreigner, who had Austrian nationality. Because of that infringement, the DFB awarded the match, which had ended 2-0 to Nürnberg, to SV Meppen by two goals to nil and two points to nil. Nürnberg accepted the deduction of the points. That confirms the view that those involved in sport as a rule voluntarily abide by the agreed rules and are unwilling to bring their disputes before the national courts. (119)

114 Regardless of that, one can scarcely conceive how such a dispute could reach the Court except along the path trodden in the present case. If 1. FC Nürnberg, for instance, in the case described above, had applied to the national courts and if those courts had sought a preliminary ruling from the Court, considerable time would have elapsed - as the present procedure shows - until an answer was given. That could have meant that the question of relegation from the second division of the Bundesliga (with all the associated consequences for other teams) would have been settled only after two years or even later. That that would have been intolerable is obvious.

115 It is conceivable that a player might bring an action before the national courts if the club he wished to play for had rejected his application for a contract of employment on the ground that he was a foreigner and could not be engaged because the club in question would be unable to play him because of the rules on foreign players. However, there is every indication that that is a hypothetical case which would hardly ever become reality. Moreover, it is hardly conceivable that a player would be able to initiate such proceedings and bring them to a conclusion. The example of Mr Bosman is a very clear demonstration of the difficulties such a player would have to deal with.

116 If, on the other hand, proceedings before national courts actually are brought, experience from other sports shows that the Court of Justice will not necessarily be consulted. (120) The Liège courts which dealt with the main action are in this respect an exception to the rule.

117 The conclusion may be drawn from the above considerations that it is extremely unlikely that a reference will ever again reach the Court which raises the question of the compatibility with Community law of the rules on foreign players. It is equally clear that the football associations take the view that the rules on foreign players are compatible with Community law and that they are unwilling to abandon them. Answering the question submitted would enable the Court to clarify the question and remove the uncertainties which the previous case-law has left over. The Court would thereby in my opinion indeed be `assisting in the administration of justice in the Member States'. In any case, under the circumstances, the Liège Cour d'Appel can hardly be accused of a misuse of the procedure under Article 177 of the EC Treaty. If, on the other hand, the Court declines to answer the question, regulation of this field will continue to be left to the whim of the sporting associations. I regard that as scarcely tolerable.

Nor can I see what interest deserving of protection the associations in question might have in the question submitted for a preliminary ruling not receiving an answer. The insistence with which they have put forward their argument that the second question submitted is inadmissible might easily give an impartial observer the impression that they simply do not want the rules on foreign players to be tested by reference to Community law. That such an intention - if it really did exist - should not be taken into account is self-evident.

118 As I have already explained, the Court of Justice has the possibility under certain circumstances of rejecting a question submitted for a preliminary ruling. That does not mean that it has to make use of that possibility in every case. In the present case the better arguments, in my opinion, are in favour of answering the question. I may also point out that in the Meilicke case Advocate General Tesauro, for example, also considered that the Court should answer the questions which had been referred, despite the circumstances described above. (121)

119 Finally, the judgment in the Donà case also speaks for answering the question. It is necessary here to call to mind the facts which lay behind that judgment. At the material time (1976) it was in principle completely prohibited for foreign players to play in Italian professional football. The chairman of a football club had, however, commissioned Mr Donà to sound out footballing circles abroad to see if players could be found who might be prepared to play for that Italian club. Mr Donà thereupon put a corresponding advertisement in a Belgian sports newspaper. His principal refused to reimburse the costs incurred thereby, however, on the ground that Mr Donà had acted overhastily. He referred to the Italian association's rules preventing the use of foreign players. Mr Donà therefore sued for the amount in question before the Giudice Conciliatore, Rovigo. The judge asked the Court of Justice whether the rules on foreign players were compatible with Community law. (122)

Several commentators have expressed the suspicion that the main action was an artificial construction whose aim was solely to induce the Court of Justice to give a ruling on the rules on foreign players. (123) That suspicion can indeed not be dismissed out of hand. The Court nevertheless answered the questions submitted - and rightly so. It should therefore do as much in the present case and not refuse to make the contribution to the administration of justice in the Member States which it has repeatedly been asked for.

III - Previous decisions of the Court in the field of sport

120 In two important decisions in the 1970s the Court ruled on the applicability of Community law in the field of sport. Those were firstly the Walrave judgment (124) and secondly the Donà judgment, which has already been referred to several times. Those decisions have been discussed at length in the present proceedings. It is therefore of use for the examination of the two questions submitted to start with a short account of those two decisions.

121 The former case concerned two Netherlands nationals, Mr Walrave and Mr Koch, who acted professionally as pacemakers in cycle races - `motor-paced bicycle races'. In that sport each participant cyclist has a pacemaker on a motor cycle in whose lee he rides. The races the persons in question took part in included the world championships. The Union Cycliste Internationale (the international association for cycling sport) had drawn up rules for those championships, under which from 1973 the pacemaker and the stayer had to be of the same nationality. Mr Walrave and Mr Koch considered that those rules were contrary to Community law. They brought an action in the Arrondissementsrechtbank (District Court) Utrecht, which referred several questions to the Court of Justice, inter alia concerning Articles 7, 48 and 59 of the EEC Treaty.

122 The Court first examined the question whether Community law can be applicable in the field of sport:

`Having regard to the objectives of the Community, the practice of sport is subject to Community law only in so far as it constitutes an economic activity within the meaning of Article 2 of the Treaty.

When such activity has the character of gainful employment or remunerated service it comes more particularly within the scope, according to the case, of Articles 48 to 51 or 59 to 66 of the Treaty.

These provisions, which give effect to the general rule of Article 7 of the Treaty, prohibit any discrimination based on nationality in the performance of the activity to which they refer.

In this respect the exact nature of the legal relationship under which such services are performed is of no importance since the rule of non-discrimination covers in identical terms all work or services.

This prohibition however does not affect the composition of sport teams, in particular national teams, the formation of which is a question of purely sporting interest and as such has nothing to do with economic activity.

This restriction on the scope of the provisions in question must however remain limited to its proper objective.' (125)

The Court left it to the national court to determine whether the case concerned an activity which was thus subject to Community law and whether the pacemaker and stayer c