CELEX: 62000CC0438
Language: en
Date: 2002-07-11 00:00:00
Title: Opinion of Advocate General Stix-Hackl delivered on 11 July 2002. # Deutscher Handballbund eV v Maros Kolpak. # Reference for a preliminary ruling: Oberlandesgericht Hamm - Germany. # External relations - Association Agreement between the Communities and Slovakia - Article 38(1) - Free movement of workers - Principle of nondiscrimination - Handball - Limitation on the number of professional players having the nationality of nonmember countries who may play on a team in the league of a sports federation. # Case C-438/00.

OPINION OF ADVOCATE GENERALSTIX-HACKL delivered on 11 July 2002 (1)
         Case C-438/00 Deutscher Handballbund e.V.vMaros Kolpak(Reference for a preliminary ruling from the Oberlandesgericht Hamm (Germany))
            ((Interpretation of Article 38(1) of the Europe Agreement establishing an association between the European Communities and
               their Member States, of the one part, and the Slovak Republic, of the other part – Free movement of workers – Restriction on the number of non-Community professional players per team in the league of a sports association (handball)))
            
            
      
         
        I ─ Introduction
      
      1.  This case concerns the restriction, laid down in the rules of a sports association, on the number of players from non-members
      countries allowed to play in certain competitions. In particular, clarification is sought as to whether that restriction is
      compatible with the Europe Agreement establishing an association between the European Communities and their Member States,
      of the one part, and the Slovak Republic, of the other part (
      the Agreement). 
      
         			(2)
         		 This addresses a legal issue which has already been raised before and resolved by a number of national courts. 
      
         			(3)
         		 II ─ Relevant legislation
      
      
      
      A ─
       Community law
      
      2.  Article 38 of the Agreement provides: 
      1.  Subject to the conditions and modalities applicable in each Member State:
      
      
      ─
      treatment accorded to workers of Slovak Republic nationality legally employed in the territory of a Member State shall be
      free from any discrimination based on nationality, as regards working conditions, remuneration or dismissal, as compared to
      its own nationals,  
      
      
      
      ─
      the legally resident spouse and children of a worker legally employed in the territory of a Member State, with the exception
      of seasonal workers and of workers coming under bilateral agreements within the meaning of Article 42, unless otherwise provided
      by such agreements, shall have access to the labour market of that Member State, during the period of that worker's authorised
      stay of employment.  
      
      
      2.  The Slovak Republic shall, subject to the conditions and modalities applicable in that country, accord the treatment referred
      to in paragraph 1 to workers who are nationals of a Member State and are legally employed in its territory as well as to their
      spouse and children who are legally resident in the said territory.
      
      
      3.  Article 42 of the Agreement provides:  
      1.  Taking into account the labour market situation in the Member State, subject to its legislation and to the respect of rules
      in force in that Member State in the area of mobility of workers:
      
      
      ─
      the existing facilities for access to employment for Slovak Republic workers accorded by Member States under bilateral agreements
      ought to be preserved and if possible improved,  
      
      
      
      ─
      the other Member States shall consider favourably the possibility of concluding similar agreements.  
      
      
      2.  The Association Council shall examine granting other improvements including facilities of access for professional training,
      in conformity with rules and procedures in force in the Member States, and taking account of the labour market situation in
      the Member States and in the Community.
      
      
      4.  Article 59(1) of the Agreement provides:1. For the purpose of Title IV of this Agreement, nothing in the Agreement shall prevent the Parties from applying their laws
      and regulations regarding entry and stay, work, labour conditions and establishment of natural persons, and supply of services,
      provided that, in so doing, they do not apply them in a manner as to nullify or impair the benefits accruing to any Party
      under the terms of a specific provision of this Agreement. This provision does not prejudice the application of Article 54.
      
      
      
      B ─
       National law
      
      5.  Extracts from Rule 15 of the Spielordnung (federal regulations governing competitive games, hereinafter  
      the SpO) of the Deutscher Handballbund e.V. (German Handball Federation) (
      the DHB) in the version relevant to these proceedings read as follows: 
      (1) The letter A is to be inserted after the licence number on the licences of players 
      (a) who do not possess the nationality of a State of the European Union (EU State), 
      
      (b) who do not possess the nationality of a non-member country associated with the EU whose nationals have equal rights as regards
      freedom of movement under Article 48(1) of the EC Treaty, 
      
      (c) ... 
      
      
      (2) In teams in the federal and regional leagues, no more than two players whose licences are marked with the letter A may play
      in a league or cup match. ...
      
      (5) The marking of a licence with the letter A is to be cancelled from 1 July of the year if the player's country of origin becomes
      associated within the meaning of Paragraph 1(b) by that date. The DHB shall publish and continually update the list of the
      States correspondingly associated.
      
       III ─ Facts and main proceedings
      
      6.  Maros Kolpak, a Slovak national, plays as goalkeeper for the second division club TSV Östringen e.V. Handball. In March 1997
      he concluded with that club a playing contract for the period to 30 June 2000, and in February 2000 concluded a further playing
      contract for the period to 30 June 2003. He receives a monthly salary, is resident in Germany and holds a valid residence
      permit. The DHB, which is the national sports association for handball in Germany and organiser of the federal handball league,
      issued him with a player's licence marked with the letter A on account of his foreign nationality. Mr Kolpak, who seeks to
      obtain from the DHB a player's licence without a suffix indicating his foreign nationality, regarded that suffix as discriminatory
      on the ground that Slovakia is one of the non-member countries whose nationals are entitled, under the defendant's rules governing
      competitive games and by virtue of the prohibition of discrimination resulting from the Treaty on European Union in conjunction
      with the Agreement, to an unrestricted right to play, in the same way as Germans and nationals of other EU Member States.
      
      7.  The Landgericht (Regional Court) Dortmund ordered the DHB to issue the player's licence requested, stating essentially by
      way of reasons that it followed from the interpretation of the playing rules themselves that Mr Kolpak was not to be treated
      under Rule 15 of the SpO as a player with the nationality of a non-member country. The DHB appealed against that judgment.
      
      8.  The Oberlandesgericht (Higher Regional Court) Hamm, which has made the reference, takes the view that Mr Kolpak has a right
      of action under German national law before the ordinary courts of the State and that, even if he is not himself directly or
      indirectly a member of the DHB, he is individually entitled under the SpO, as a player in the federal league under contract
      with a member club, to be issued with a licence to play if certain conditions are met.
      
      9.  However, the single point at issue in this regard is whether or not Mr Kolpak is, on the basis of Rule 15(1) of the SpO, merely
      to be issued with a player's licence restricted by the suffix  
      A, and consequently the matter turns solely on whether Rule 15(1) of the SpO is at all applicable.
      
      10.  In the referring court's view, the decisive factor in the dispute is the manner in which the reference to Article 48 of the
      EC Treaty (now, after amendment, Article 39 EC) in Rule 15(1)(b) of the SpO is to be construed.
      
      11.  The Oberlandesgericht interprets that reference as covering only players who have exactly the same rights as EU nationals
      with regard to free movement of workers. Thus, Mr Kolpak would not be entitled to an unrestricted player's licence without
      the suffix  
      A. After all, as pointed out by the referring court, Slovakia is not included on the list kept by the DHB pursuant to Rule
      15(5) of the SpO.
      
      12.  The referring court therefore seeks to ascertain whether, notwithstanding the provision to the contrary in Rule 15(1)(b) of
      the SpO, Mr Kolpak is none the less entitled to be issued with an unrestricted player's licence because, by virtue of that
      provision of its rules governing competitive games, the DHB is in breach of Article 38 of the Agreement, which has direct
      effect against third parties, including the DHB.
      
      13.  The Oberlandesgericht assumes that, by refusing to issue Mr Kolpak with an unrestricted player's licence on the ground of
      his nationality, the DHB is acting in breach of the prohibition of discrimination contained in Article 38 of the Agreement.
      It states that Rule 15 of the SpO also governs Mr Kolpak's employment relationship. The player's contract is a contract of
      employment since Mr Kolpak is obliged, in return for a fixed monthly remuneration, to provide (sporting) services on an employed
      basis during training and games, and this is his main professional activity.
      
      14.  According to that court, by restricting Mr Kolpak's opportunities to play in matches, Rule 15(1)(b) in conjunction with Rule
      15(2) of the SpO also treats him unequally as regards working conditions in so far as a player who has already secured lawful
      access to employment and is consequently no longer himself affected by an obstacle to employment does not, by virtue of that
      rule, enjoy the same opportunity as that granted to other players likewise to play in official matches as part of such employment.
      
      15.  As, in the view of the Oberlandesgericht, Mr Kolpak is lawfully employed in German territory, is resident in Germany, is in
      possession of a valid residence permit and does not require a work permit in accordance with German legislation pertaining
      to foreign nationals, he has gained access to the German labour market specifically pursuant to national German law, independently
      of Article 38 of the Agreement. The prohibition of discrimination laid down in Article 38 therefore applies, unless precluded
      by the proviso therein with respect to  
      the conditions and modalities applicable in each Member State.
      
      16.  The referring court tends to the view that the rules adopted by the defendant within the scope of its autonomy as an association
      are not covered by those conditions and modalities because the prohibition of discrimination contained in the Agreement would
      thereby be rendered nugatory.
      
      17.  The referring court further assumes that Article 38 of the Agreement, like Article 39 EC, is directly applicable. If that
      is so, however, third-party effect will also have to be taken to exist in such a way that Article 38 of the Agreement not
      only applies to the action of public authorities but also extends to rules of any other nature aimed at the collective regulation
      of employment because, otherwise, the abolition of public barriers could be rendered meaningless by obstacles resulting from
      associations or organisations not governed by public law exercising their legal autonomy.
      
      18.  The Oberlandesgericht therefore concludes that Rule 15(1)(b) of the SpO infringes Article 38 of the Agreement and that, since
      the other conditions are satisfied, Mr Kolpak is entitled to be issued with an unrestricted player's licence.
       IV ─ Question referred for a preliminary ruling
      
      19.  By order of 15 November 2000 the Oberlandesgericht Hamm referred the following question to the Court of Justice for a preliminary
      ruling:Is it contrary to Article 38(1) of the Europe Agreement establishing an association between the European Communities and their
      Member States, of the one part, and the Slovak Republic, of the other part ─ Final Act ─ if a sports federation applies to
      a professional sportsman of Slovak nationality a rule that it has adopted under which clubs may field in league and cup matches
      only a limited number of players who come from countries not belonging to the European Communities?
      
      20.  As the Commission correctly points out, it is not for the Court, in preliminary ruling proceedings, to answer questions as
      to whether a rule of national law is compatible with Community law. In light of the observations made by the referring court,
      the Commission also points to the fact that the question referred is, strictly speaking, raised only in relation to nationals
      of non-member countries that are outside the European Economic Area (EEA).
      
      21.  In light of the Court's comparable judgment in  
       Pokrzeptowicz-Meyer , 
      
         			(4)
         		 the question should therefore be reworded as follows:Does Article 38 of the Europe Agreement establishing an association between the European Communities and their Member States,
      of the one part, and the Slovak Republic, of the other part, preclude the application to a Slovak national, as in this case,
      of a rule adopted by a sports federation under which clubs may field in league and cup matches only a limited number of players
      who come from countries outside the European Economic Area (EEA)?
       V ─ Submissions of the parties
      
      
      
      A ─
       Admissibility
      
      22.  The  
       Italian Government  considers that the description of the facts in the order for reference is incomplete, in particular as regards the precise
      damage actually suffered by the Slovak player. It was not clear from the order for reference either whether the player did
      in fact play at all or whether the frequency with which he played in matches actually depended on the association's rule rather
      than on strictly technical decisions or considered views of the trainer. On those grounds, the Italian Government proposes
      that the Court should declare the reference for a preliminary ruling to be inadmissible pursuant to Article 92 of its Rules
      of Procedure.
      
      23.  Referring to case-law, the  
       Commission   takes the opposite view that this case does not involve a hypothetical situation and that there has, on the contrary, been
      an adequate description of the facts.
      
      
      
      B ─
       Interpretation of Article 38 of the Agreement
      
      24.  At the hearing, Mr 
       Kolpak  drew attention to the fact that he was restricted in the exercise of his profession, in particular where club transfers were
      concerned, and that what mattered to him was the establishment of a lawful situation. He was, he stated, an employed person
      and benefited from the direct applicability of Article 38 of the Association Agreement, which applies also to rules of sports
      associations. Moreover, Rule 15 of the SpO fell short of its objective because it did not apply to all clubs.
      
      25.  The  
       DHB , the  
       Spanish Government  and the  
       Italian Government  essentially take the view that the SpO rules which are the subject-matter of these proceedings are not contrary to Article 38(1)
      of the Agreement. In their view, Article 38(1) is not directly applicable and therefore does not confer any (subjective) right
      on an individual, that is to say, on a player. The DHB considers that this follows from the previous decisions on the absence
      of horizontal effect of directives and from the fact that the Court has not as yet ruled that  a provision contained in an
      association agreement has direct effect.
      
      26.  At the hearing, the DHB referred to the implication of the argument that it is necessary to proceed from the premiss of lawful
      employment even in the case of a restricted work permit.
      
      27.  The DHB and the Spanish and Italian Governments argue that the prohibition of discrimination laid down in Article 38 of the
      Agreement does not contain any clear, unequivocal or absolute obligation. Rather, that provision applies  
      [s]ubject to the conditions and modalities applicable in each Member State. They maintain that Rule 15 of the SpO is one such condition.At the hearing, the Italian Government pointed out that the task of assessing the legal provisions of a given Member State
      falls to the relevant national court and that the rule at issue in these proceedings can be justified on sporting grounds.
      
      28.  The DHB and the Spanish and Italian Governments submit further that the restricted scope of the prohibition of discrimination
      laid down in Article 38 of the Agreement, that is to say, the fact that Slovak workers are not afforded entirely the same
      treatment as EU citizens, is confirmed by the subject-matter, purpose and context of the Association Agreement, which is the
      expression of a transitional phase in the process of bringing the Slovak Republic closer to the EU. The Court's interpretation
      of freedom of movement for workers, as provided for in Article 39 EC, and its application to the sports sector is therefore,
      they argue, confined to EU citizens and nationals of EEA Contracting Parties. The Italian Government in addition takes the
      view that the EEA Agreement does not contain any restriction relating to conditions and modalities. At the hearing, the Spanish
      Government again highlighted the significance of the proviso set out in Article 38(1) of the Association Agreement and pointed
      out that the scope of the prohibition of discrimination laid down in that provision is not as broad as that in respect of
      the prohibition contained in Article 39 EC.
      
      29.  Moreover, the DHB takes the view that Mr Kolpak had never been prevented from playing in a match on the basis of the association's
      statutes and that the club concerned merely sought to employ other nationals from non-member countries. Finally, the DHB submits
      that the judgment in  
       Bosman  
      
         			(5)
         		 does not preclude the application of the SpO rule at issue in these proceedings because that rule serves purely sporting
      purposes and the DHB's decision to introduce a nationality clause is protected by the fundamental right to freedom of association
      guaranteed by the German Basic Law. 
      
      30.  At the hearing, the  
       Greek Government  referred to the Court's case-law on the direct applicability of agreements with non-member countries and to the case-law
      on professional sport. It also pointed to the fact that the scope of Article 38 of the Association Agreement is narrower than
      that of Article 39 EC inasmuch as Article 38 does not provide a comprehensive right to free movement for workers. As Member
      States may adopt rules in accordance with Article 42 of the Association Agreement and as rules of sports federations are to
      be afforded the same treatment as public-law provisions by reason of their legislative and collective nature, the Greek Government
      concludes that the provision at issue in the main proceedings is compatible with Article 38 of the Association Agreement.
      
      31.  Conversely, the  
       German Government   and the  
       Commission   proceed on the basis that Article 38(1) of the Agreement is directly applicable and that Mr Kolpak may rely on that provision
      as against a federation such as the DHB. The reference to conditions and modalities, in their view, does not preclude the
      direct applicability of the prohibition of discrimination.
      
      32.  The nationality clause which is the subject-matter of these proceedings is, they argue, discriminatory and therefore infringes
      Article 38 of the Agreement which, amongst other things, relates to working conditions. However, only those Slovak workers
      who are lawfully employed in a Member State may rely on its direct applicability.
      
      33.  So far as the direct applicability of Article 38 of the Agreement to sports associations is concerned, the German Government
      and the Commission take the view that reference must be made to the Court's case-law on Article 39 EC. Otherwise, the DHB
      could issue rules which, as acts of an authority, would be contrary to Community law. At the hearing, the Commission pointed
      out that Article 38 of the Association Agreement had the same wording as the provision that the Court had held in  
       Pokrzeptowicz-Meyer 
         			(6)
         		 to be directly applicable. Article 38 of the Association Agreement, however, does not provide for the comprehensive free
      movement of persons laid down in Article 39 EC.
      
      34.  Having regard to the judgment in  
       Bosman , the German Government and the Commission submit that Rule 15 of the SpO constitutes discrimination as regards conditions
      of employment but does not constitute a restriction on access to the labour market.
      
      35.  Such a restriction, they argue, is also by no means justified because the relevant nationality clause is neither appropriate
      nor reasonable for securing the establishment of a reserve of high-quality German players. German clubs are thus permitted
      to field teams which do not include a single German player.
       VI ─ Assessment
      
      
      
      A ─
       Admissibility
      
      36.  With regard to the Italian Government's reservations concerning admissibility, it should be noted that the main proceedings
      do not centre on the issue of whether or not a player plays in a particular match, that is to say, whether or not Mr Kolpak
      actually plays. On the contrary, they concern Mr Kolpak's claim to the general and fundamental right to equal treatment and
      to an unrestricted entitlement to play, that is to say, entitlement to an unrestricted player's licence.
      
      37.  However, as the Italian Government itself stated, the Court 
      
         			(7)
         		 has on numerous occasions held that it is for the national court alone to determine whether a preliminary ruling is necessary.
      Furthermore, the assertion that the Court does not have the information necessary to enable it to give an appropriate decision
      is incorrect.
      
      38.  In view of those circumstances, the question referred is admissible.
      
      
      
      B ─
       Interpretation of Article 38 of the Agreement
       1. Direct applicability of Article 38 of the Agreement
      
      39.  First of all, it should be pointed out that this case involves the legal status of Slovak nationals within the European Community.
      The answer to the question referred must for that reason be confined to consideration of that aspect and, by extension, to
      consideration of Article 38(1) of the Agreement. Given that these proceedings do not concern additionally the legal status
      of spouses and children, the question referred can refer only to the first indent of Article 38(1).
      
      40.  It must therefore be examined in what follows whether an individual may rely before a national court on the first indent of
      Article 38(1) of the Agreement, that is to say whether that provision is directly applicable.
      
      41.  For the purpose of answering that question, reference may be made to the Court's case-law concerning the parallel provision
      in another Europe agreement which likewise governs freedom of movement for workers, namely the case-law on Article 37 of the
      Association Agreement with Poland. In its judgment in  
       Pokrzeptowicz-Meyer , which was cited on several occasions during the hearing, the Court held in this regard that:In view of the foregoing considerations, the first indent of Article 37(1) of the Europe Agreement must be held to have direct
      effect, so that Polish nationals who assert it may also rely on it before the national courts of the host Member State. 
      
         			(8)
         		
      42.  A comparison of the two agreements and of the two articles indicates that they possess decisive common features. First, the
      agreements do not in principle differ as regards their subject-matter and nature. Second, the first indent of Article 37(1)
      of the Europe Agreement with Poland and the first indent of Article 38(1) of the Europe Agreement with Slovakia have essentially
      the same wording.
      
      43.  Consequently, the Court's findings with regard to the Agreement with Poland can be applied to the Agreement with Slovakia.
      This is true, first of all, as regards the clear and unconditional nature of the prohibition of discrimination against workers
      from the relevant association country. 
      
         			(9)
         		 In addition, Article 59(1) of the Agreement with Slovakia, which is comparable to Article 58(1) of the Agreement with Poland,
      cannot preclude direct applicability either. 
      
         			(10)
         		
      44.  It must therefore be concluded that the first indent of Article 38(1) of the Agreement is directly applicable.
       2. Applicability of Article 38 of the Agreement to measures taken by sports federations
      
      45.  It falls to be determined in what follows whether a sports federation such as the DHB in the main proceedings is amongst the
      addressees of Article 38 of the Agreement.
      
      46.  As correctly observed by the Commission, reference on this point must be made to the Court's case-law on the parallel provision
      of the EC Treaty, that is to say, Article 48 of the EC Treaty (now, after amendment, Article 39 EC), and to that on the prohibition
      of discrimination laid down in Article 6 of the EC Treaty (now, after amendment, Article 12 EC).
      
      47.  As the Court has consistently held, Article 48 of the EC Treaty (now, after amendment, Article 39 EC)  
      not only applies to the action of public authorities but extends also to rules of any other nature aimed at regulating gainful
      employment in a collective manner. 
      
         			(11)
         		
      48.  The Court has also  
      held that the abolition as between Member States of obstacles to freedom of movement for persons and to freedom to provide
      services would be compromised if the abolition of State barriers could be neutralised by obstacles resulting from the exercise
      of their legal autonomy by associations or organisations not governed by public law. 
      
         			(12)
         		
      49.  It has further observed that working conditions in the different Member States are governed sometimes by provisions laid down
      by law or regulation and sometimes by agreements and other acts concluded or adopted by private persons. Accordingly, if the
      scope of Article 48 of the Treaty were confined to acts of a public authority there would be a risk of creating inequality
      in its application. 
      
         			(13)
         		
      50.  As, therefore, it has been established in accordance with case-law that individuals may rely on the prohibition of discrimination
      laid down in Article 48 of the EC Treaty (now, after amendment, Article 39 EC) as against sports federations too, it remains
      to be examined whether that interpretation can also be applied to Article 38 of the Agreement.
      
      51.  Suffice it in this context to refer to the Court's findings in  
       Pokrzeptowicz-Meyer  as regards the Association Agreement with Poland. The reasoning applied by the Court with regard to the transposition of
      case-law on Article 48 of the EC Treaty (now, after amendment, Article 39 EC) to the comparable provision of the Association
      Agreement with Poland may also be applied in the present proceedings.
      
      52.  Thus, the Court has ruled that  
      a mere similarity in the wording of a provision of one of the Treaties establishing the Communities and of an international
      agreement ...  is not sufficient. The crucial factor is, rather,  
      the aim pursued by each provision in its own particular context. A comparison between the objectives and context of the agreement
      and those of the Treaty is of considerable importance in that regard. 
      
         			(14)
         		
      53.  The Court accordingly concluded that Article 37 of the Association Agreement with Poland establishes, in favour of workers
      of Polish nationality, once they are legally employed within the territory of a Member State, a right to equal treatment as
      regards conditions of employment of the same extent as that conferred by Article 48(2) of the Treaty. 
      
         			(15)
         		
      54.  This means that the interpretation given to Article 48(2) of the EEC Treaty in the judgments in  
       Walrave and Koch  
      
         			(16)
         		 and in  
       Bosman  
      
         			(17)
         		 can be transposed in the present case to the first indent of Article 38(1) of the Agreement.
       3. Substance of Article 38 of the Agreement
      
      (a) The persons covered by that provision
      
      55.  It is at this point necessary to examine whether Mr Kolpak, that is to say, in general terms any professional sportsman such
      as the one in the main proceedings, is entitled to the benefit of the first indent of Article 38(1) of the Agreement. In this
      regard it should be pointed out that the provision concerned applies only to employed persons who are lawfully resident in
      the territory of the State concerned. It is apparent from the documents before the Court that Mr Kolpak possesses a valid
      residence permit and does not require a work permit.
      
      56.  As regards Mr Kolpak's status as a worker, regard should be had to the judgment in  
       Lehtonen and Castors Braine , in which the Court held as follows:As to the concept of worker, it must be borne in mind that, according to settled case-law, it may not be interpreted differently
      according to each national law but has a Community meaning. It must be defined in accordance with objective criteria which
      distinguish the employment relationship by reference to the rights and duties of the persons concerned. The essential feature
      of an employment relationship is that for a certain period of time a person performs services for and under the direction
      of another person, in return for which he receives remuneration. 
      
         			(18)
         		
      57.  According to the findings of the Oberlandesgericht and the documents submitted to the Court, Mr Kolpak entered into an employment
      contract with a club, namely TSV Östringen e.V. Handball, with a view to carrying on gainful employment as goalkeeper for
      that club.
      
      58.  It therefore follows from the foregoing that Mr Kolpak comes within the category of persons entitled to the benefit of that
      provision.
       (b) Existence of an obstacle to freedom of movement for workers
      
      59.  It remains to be examined whether the restriction on players who are nationals of non-member countries which is laid down
      in Rule 15 of the SpO constitutes an obstacle to freedom of movement for workers or, in other words, whether the first indent
      of Article 38(1) of the Agreement precludes a provision such as that laid down in the SpO.
      
      60.  It is first necessary to determine in that connection whether Rule 15 of the SpO concerns conditions of employment. As the
      Commission has correctly submitted, that is the case inasmuch as nationals of non-member countries, nationals of EEA Contracting
      Parties excepted, have only limited opportunities to play in certain matches, that is to say, in league and cup matches in
      the federal and regional leagues.
      
      61.  As the Court held in  
       Bosman ,  
      participation in such matches is the essential purpose of a professional player's activity, a fact which explains why  
      a rule which restricts that participation ... also restricts the chances of employment of the player concerned. 
      
         			(19)
         		
      62.  It clearly follows, therefore, from the case-law that a rule such as that at issue here constitutes an obstacle to the free
      movement of workers. 
      
         			(20)
         		
      63.  Since no such restriction applies to nationals of EEA Contracting Parties, and thus EU citizens, discrimination arises in
      this case against Slovak nationals.
      
      64.  It now remains to be established whether this obstacle to the free movement of workers can be justified objectively.
      
      65.  It should first be mentioned that the rules at issue here are not, unlike in the case of  
       Deliège , 
      
         			(21)
         		 selection rules which do not contain a nationality clause, nor are they rules meeting the objective of ensuring the regularity
      of sporting competitions, as in  
       Lehtonen and Castors Braine . 
      
         			(22)
         		 This case, in contast, involves a rule that restricts the number of players who are nationals of other countries, essentially,
      a rule corresponding to the one at issue in  
       Bosman , 
      
         			(23)
         		 although that case did in fact relate to nationals of other Member States.
      
      66.  Moreover, there has been nothing in the proceedings to demonstrate that Rule 15 of the SpO is appropriate for the pursuit
      of purely sporting objectives.
      
      67.  However, should Rule 15 of the SpO be considered appropriate for the pursuit of an objective in the public interest, that
      still does not mean that it is proportionate. Accordingly, measures taken by sports associations may not go beyond what is
      necessary for achieving the aim pursued. 
      
         			(24)
         		 In this respect, the objection that clubs are free to field in matches nationals of EEA Contracting Parties, which include
      the EU Member States, in particular cannot be disregarded.
      
      68.  As regards the argument raised during the proceedings to the effect that Rule 15 of the SpO in the version applicable in the
      main proceedings was, for purely sporting purposes, necessary in particular to create a sufficient reserve of players of German
      nationality, it must be observed that the Court expressly rejected that argument in  
       Bosman . 
      
         			(25)
         		
      69.  Finally, it should be pointed out that up-and-coming young German players are not restricted to playing for a German club.
      They likewise have the chance to engage in this high-performance sport with foreign clubs.
      
      70.  It follows that a rule such as that in the main proceedings impedes the exercise of the right to free movement laid down in
      the first indent of Article 38(1) of the Agreement.
        VII ─ Conclusion
      
      71.  In the light of the foregoing I propose that the Court should answer the reworded version of the question referred as follows:Article 38(1) of the Europe Agreement establishing an association between the European Communities and their Member States,
      of the one part, and the Slovak Republic, of the other part, which is directly applicable, precludes the application to a
      Slovak national, as in this case, of a rule adopted by a sports federation under which clubs may field in league and cup matches
      only a limited number of players who come from non-member countries outside the European Economic Area (EEA).
      
       1 –
         
           Original language: German.
      
      2 –
         
         OJ 1994 L 359, p. 2; Decision 94/909/ECSC, EEC, Euratom of the Council and the Commission of 19 December 1994 (OJ 1994 L 359,
            p. 1).
         
      
      3 –
         
         For the corresponding German case-law, see the comments of Krogmann,  
             Sport und Europarecht , 2001, p. 23 et seq.
         
      
      4 –
         
         Case C-162/00 [2002] ECR I-1049.
      
      5 –
         
         Case C-415/93 [1995] ECR I-4921.
      
      6 –
         
         Cited in footnote 4.
      
      7 –
         
         Reference need only be made to Case C-254/98  
             TK-Heimdienst  [2000] ECR I-151, paragraph 13 with further references, and Joined Cases C-332/92, C-333/92 and C-335/92  
             Eurico Italia and Others  [1994] ECR I-711. 
         
      
      8 –
         
         Cited in footnote 4, paragraph 30.
      
      9 –
         
         In that regard, see  
             Pokrzeptowicz-Meyer  (cited in footnote 4), paragraph 21.
         
      
      10 –
         
         In that regard, see  
             Pokrzeptowicz-Meyer  (cited in footnote 4), paragraph 28.
         
      
      11 –
         
         . Bosman  (cited in footnote 5, paragraph 82), as well as Joined Cases C-51/96 and C-191/97  
             Deliège  [2000] ECR I-2549, paragraph 47, and Case C-176/96  
             Lehtonen and Castors Braine  [2000] ECR I-2681, paragraph 35; cf. Case 36/74  
             Walrave and Koch  [1974] ECR 1405, paragraph 17.
         
      
      12 –
         
         . Bosman  (cited in footnote 5), paragraph 83; cf.  
             Walrave and Koch  (cited in footnote 11), paragraph 18.
         
      
      13 –
         
         . Bosman  (cited in footnote 5), paragraph 84; cf.  
             Walrave and Koch  (cited in footnote 11), paragraph 19.
         
      
      14 –
         
         . Pokrzeptowicz-Meyer  (cited in footnote 4), paragraphs 32 and 33.
         
      
      15 –
         
         . Pokrzeptowicz-Meyer  (cited in footnote 4), paragraph 41.
         
      
      16 –
         
         Cited in footnote 11.
      
      17 –
         
         Cited in footnote 5.
      
      18 –
         
         Cited in footnote 11, paragraph 45.
      
      19 –
         
         . Bosman  (cited in footnote 5), paragraph 120, and  
             Lehtonen and Castors Braine  (cited in footnote 11), paragraph 50.
         
      
      20 –
         
         See  
             Bosman  (cited in footnote 5), paragraphs 99 and 100, and  
             Lehtonen and Casters Braine  (cited in footnote 11), paragraph 49.
         
      
      21 –
         
         Cited in footnote 11, paragraph 61.
      
      22 –
         
         Cited in footnote 11, paragraph 53 et seq.
      
      23 –
         
         Cited in footnote 5.
      
      24 –
         
         . Bosman  (cited in footnote 5), paragraph 104, and  
             Lehtonen and Castors Braine  (cited in footnote 11), paragraph 56.
         
      
      25 –
         
         Cited in footnote 5, paragraph 130 et seq.