Deutscher Handballbund eV v Maros Kolpak.
Date: 2003-05-08
24.  It should be noted at the outset that, in paragraph 30 of its judgment in Case C-162/00   Pokrzeptowicz-Meyer   [2002] ECR I-1049, the Court has already recognised the first indent of Article 37(1) of the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Poland, of the other part, signed in Brussels on 16 December 1991 and approved on behalf of the Communities by Decision 93/743/Euratom, ECSC, EC of the Council and the Commission of 13 December 1993 (OJ 1993 L 348, p. 1) ( "the Association Agreement with Poland"  ), as having direct effect.
27.  That being so, just as Article 58(1) of the Association Agreement with Poland does not preclude the first indent of Article 37(1) of that Agreement from having direct effect (see   Pokrzeptowicz-Meyer  , cited above, paragraph 28), so Article 59(1) of the Association Agreement with Slovakia does not preclude the first indent of Article 38(1) of that Agreement from having direct effect, given the similarity of the provisions in question.
28.  Furthermore, as with the first indent of Article 37(1) of the Association Agreement with Poland, implementation of the first indent of Article 38(1) of the Association Agreement with Slovakia is not subject to the adoption by the Association Council, set up by that Agreement, of additional measures to define the detailed rules governing its application (Pokrzeptowicz-Meyer  , paragraph 29).
29.  Finally, just as in the case of Article 37(1) of the Association Agreement with Poland, the words   "[s]ubject to the conditions and modalities applicable in each Member State"   in Article 38(1) of the Association Agreement with Slovakia cannot be interpreted in such a way as to allow Member States to make the application of the principle of non-discrimination set out in that provision subject to conditions or discretionary limitations inasmuch as such an interpretation would render that provision meaningless and deprive it of any practical effect (Pokrzeptowicz-Meyer  , paragraphs 20 to 24).
31.  As a preliminary point, it should be observed that, in regard to Article 48(2) of the Treaty, it follows from paragraph 87 of the Court's judgment in Case C-415/93   Bosman   [1995] ECR I-4921 that the prohibition of discrimination laid down in that provision applies to rules laid down by sporting associations which determine the conditions under which professional sportsmen can engage in gainful employment.
32.  In that connection, the Court pointed out, in paragraph 84 of   Bosman  , cited above, 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, and that, if the scope of Article 48 of the Treaty were to be confined to acts of a public authority, there would therefore be a risk of creating inequality in its application.
33.  With regard to the first indent of Article 38(1) of the Association Agreement with Slovakia, in order to determine whether that provision applies to a rule drawn up by a sports federation such as the DHB, it is necessary to examine whether the Court's interpretation of Article 48(2) of the Treaty may be transposed in this case to the above provision of the Association Agreement with Slovakia.
34.  The Court has stated in this regard, in paragraphs 39 and 40 of   Pokrzeptowicz-Meyer  , that, although the first indent of Article 37(1) of the Association Agreement with Poland does not lay down a principle of free movement for Polish workers within the Community, whereas Article 48 of the Treaty establishes for the benefit of Member State nationals the principle of free movement for workers, it follows from a comparison of the aims and context of the Association Agreement with Poland, on the one hand, with those of the EC Treaty, on the other hand, that there is no ground for giving to the first indent of Article 37(1) of that Association Agreement a scope different from that which the Court has recognised Article 48(2) of the Treaty as having.
35.  In that context, the Court stated in paragraph 41 of   Pokrzeptowicz-Meyer   that the first indent of Article 37(1) of the Association Agreement with Poland establishes, in favour of workers of Polish nationality, once they are lawfully 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 in similar terms by Article 48(2) of the Treaty on Member State nationals.
36.  It follows from the foregoing and from the reasoning set out in paragraphs 25 to 30 of this judgment that the interpretation of Article 48(2) of the Treaty adopted by the Court in   Bosman   and referred to in paragraphs 31 and 32 of the present judgment may be transposed to the first indent of Article 38(1) of the Association Agreement with Slovakia.
37.  That being so, it must be concluded that the first indent of Article 38(1) of the Association Agreement with Slovakia applies to a rule drawn up by a sports federation such as the DHB which determines the conditions under which professional sportsmen engage in gainful employment.
The scope of the principle of non-discrimination set out in the first indent of Article 38(1) of the Association Agreement with Slovakia
44.  In that context, with more particular regard to the question whether a rule such as that laid down in Rule 15(1)(b) and 15(2) of the SpO constitutes a working condition, it is necessary to point out that, in   Bosman  , the dispute in the main proceedings related to,   inter alia  , similar nationality rules or clauses drawn up by the Union of European Football Associations (UEFA).
45.  It follows from paragraph 120 of the judgment in   Bosman   that clauses of that kind concern not the employment of professional players, on which there is no restriction, but the extent to which their clubs may field them in official matches, and that participation in such matches is the essential purpose of their activity.
46.  It follows that a sports rule such as that in issue in the main proceedings relates to working conditions within the meaning of the first indent of Article 38(1) of the Association Agreement with Slovakia inasmuch as it directly affects participation in league and cup matches of a Slovak professional player who is already lawfully employed under the national provisions of the host Member State.
48.  In that regard, it must be observed, first, that, so far as Article 48(2) of the Treaty is concerned, it follows from paragraph 137 of   Bosman   that that provision precludes the application of rules laid down by sporting associations under which, in competition matches which they organise, football clubs may field only a limited number of professional players who are nationals of other Member States.
50.  That being so, the interpretation of Article 48(2) of the Treaty applied by the Court in   Bosman   and set out in paragraph 48 of the present judgment can be transposed to the first indent of Article 38(1) of the Association Agreement with Slovakia.
53.  Admittedly, in paragraph 127 of   Bosman  , the Court pointed out that, in paragraphs 14 and 15 of its judgment in Case 13/76   Donà   v   Mantero   [1976] ECR 1333, it had recognised that the Treaty provisions on the free movement of persons do not preclude rules or practices excluding foreign players from certain matches for reasons which are not economic in nature, which relate to the particular nature and context of such matches and are thus of sporting interest only, such as matches between national teams from different countries.
54.  In paragraph 128 of   Bosman  , however, the Court stated that nationality clauses do not concern specific matches between teams representing their countries but apply to all official matches between clubs and thus to the essence of the activity of professional players.
55.  In that context, the Court pointed out that a football club's links with the Member State in which it is established cannot be regarded as any more inherent in its sporting activity than are its links with its locality, town or region.  Even though national championships are played between clubs from different regions, towns or localities, there is no rule restricting the right of clubs to field players from other regions, towns or localities in such matches.  Moreover, in international competitions participation is limited to clubs which have achieved certain sporting results in their respective countries, without any particular significance being attached to the nationalities of their players (Bosman  , paragraphs 131 and 132).
56.  Regard being had to that case-law, the discrimination arising in the present case from Rule 15(1)(b) and 15(2) of the SpO cannot be regarded as justified on exclusively sporting grounds inasmuch as it follows from those rules that, during matches organised by the DHB, clubs are free to field an unlimited number of nationals of EEA Member States.