TopFit e.V. and Daniele Biffi v Deutscher Leichtathletikverband e.V.
Date: 2019-06-13
28


According to settled case-law, Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for (judgment of 20 September 2001, Grzelczyk, C‑184/99, EU:C:2001:458, paragraph 31).
29


As the Court has held previously, the situation of an EU citizen who has made use of his right to move freely comes within the scope of Article 18 TFEU, which lays down the principle of non-discrimination on grounds of nationality (judgment of 13 November 2018, Raugevicius, C‑247/17, EU:C:2018:898, paragraph 27).
30


That article is applicable to an EU citizen who, like Mr Biffi, resides in a Member State other than the Member State of which he is a national and in which he intends to participate in sporting competitions in an amateur capacity.
31


Further, the Court has previously held that, under EU law, every national of a Member State is assured of freedom both to enter another Member State in order to pursue an employed or self-employed activity and to reside there after having pursued such an activity and that access to leisure activities available in that Member State is a corollary to that freedom of movement (judgment of 7 March 1996, Commission v France, C‑334/94, EU:C:1996:90, paragraph 21).
32


The Court has also found that the rights conferred on an EU citizen by Article 21(1) TFEU are intended, amongst other things, to promote the gradual integration of the EU citizen concerned in the society of the host Member State (see, to that effect, judgment of 14 November 2017, Lounes, C‑165/16, EU:C:2017:862, paragraph 56).
33


Moreover, Article 165 TFEU reflects the considerable social importance of sport in the European Union, in particular amateur sport, as highlighted in Declaration No 29 on sport annexed to the Final Act of the conference which adopted the text of the Treaty of Amsterdam (see, to that effect, judgments of 15 December 1995, Bosman, C‑415/93, EU:C:1995:463, paragraph 106, and of 13 April 2000, Lehtonen and Castors Braine, C‑176/96, EU:C:2000:201, paragraph 33) and the role of sport as a factor for integration in the society of the host Member State.
37


In that regard, it should be noted that, in accordance with settled case-law, observance of the fundamental freedoms and the prohibition of discrimination on the basis of nationality provided for by the Treaty also apply to rules which are not public in nature but which are aimed at regulating gainful employment and the provision of services in a collective manner (see, inter alia, judgments of 12 December 1974, Walrave and Koch, 36/74, EU:C:1974:140, paragraph 17; of 15 December 1995, Bosman, C‑415/93, EU:C:1995:463, paragraph 82; of 18 December 2007, Laval un Partneri, C‑341/05, EU:C:2007:809, paragraph 98; and of 16 March 2010, Olympique Lyonnais, C‑325/08, EU:C:2010:143, paragraph 30).
38


The Court has thus held that the abolition as between Member States of obstacles to the freedom of movement for persons and to the freedom to provide services, which is a fundamental objective of the European Community contained in Article 3(c) of the EEC Treaty (repealed by the Treaty of Lisbon), replaced in essence by Articles 3 to 6 TFEU, would be compromised if the abolition of barriers of national origin could be neutralised by obstacles resulting from the exercise of their legal autonomy by associations or organisations which do not come under public law (see, to that effect, judgment of 12 December 1974, Walrave and Koch, 36/74, EU:C:1974:140, paragraph 18).
39


The principle established by this case-law of the Court also applies in cases where a group or organisation exercises a certain power over individuals and is in a position to impose on them conditions which adversely affect the exercise of the fundamental freedoms guaranteed under the Treaty (see, to that effect, judgment of 3 October 2000, Ferlini, C‑411/98, EU:C:2000:530, paragraph 50).
44


It should be recalled that such a difference in treatment is liable to restrict the freedom of movement of that EU citizen (see, to that effect, judgment of 13 November 2018, Raugevicius, C‑247/17, EU:C:2018:898, paragraph 28).
48


Such a restriction on the freedom of movement of EU citizens can be justified only where it is based on objective considerations and is proportionate to the legitimate objective pursued by the rules at issue (see, to that effect, judgment of 13 November 2018, Raugevicius, C‑247/17, EU:C:2018:898, paragraph 31).
49


In that regard, it should be recalled that, in the field of sport, the Court has consistently held that the provisions of EU law concerning the free movement of persons and services do not preclude rules or practices justified on grounds that relate to the particular nature and context of certain sports matches, such as matches between national teams from different countries. However, such a restriction on the scope of the provisions in question must remain limited to its proper objective and cannot be relied upon to exclude the whole of a sporting activity from the scope of the Treaty (see, to that effect, judgment of 15 December 1995, Bosman, C‑415/93, EU:C:1995:463, paragraphs 76 and 127).
52


Turning, firstly, to the assertion that sports associations are free to establish their rules, it should be borne in mind, as has already been noted in paragraph 40 above, that the freedom of private associations to adopt sporting rules cannot authorise them to limit the exercise of rights conferred on individuals by the Treaty (see, to that effect, judgment of 15 December 1995, Bosman, C‑415/93, EU:C:1995:463, paragraph 81).
53


It should be pointed out that the fact that a rule applies solely to sport does not mean that it is automatically excluded from the scope of the Treaty (see, to that effect, judgment of 18 July 2006, Meca-Medina and Majcen v Commission, C‑519/04 P, EU:C:2006:492, paragraph 33).
60


In that regard, it should also be borne in mind that, while it falls to the bodies concerned, such as the organisers of championships or sports associations, to lay down appropriate rules in order to ensure the proper functioning of competitions (judgment of 11 April 2000, Deliège, C‑51/96 and C‑191/97, EU:C:2000:199, paragraph 67), those rules may not go beyond what is necessary for achieving the aim pursued (judgment of 13 April 2000, Lehtonen and Castors Braine, C‑176/96, EU:C:2000:201, paragraph 56).
65


It should be borne in mind in this regard that, in order for a prior authorisation scheme to be justified in the light of Articles 18 and 21 TFEU, it must, in any event, be based on objective and non-discriminatory criteria which are known in advance, in such a way as to circumscribe the exercise of the DLV’s discretion so that it is not used arbitrarily (see, to that effect, judgment of 20 February 2001, Analir and Others, C‑205/99, EU:C:2001:107, paragraph 38).