Jyri Lehtonen and Castors Canada Dry Namur-Braine ASBL v Fédération royale belge des sociétés de basket-ball ASBL (FRBSB).
Date: 2000-04-13
19 It may be noted to begin with that, as the Court held in Case 338/85 Pardini v Ministero del Commercio con l'Estero [1988] ECR 2041, paragraph 11, and Case C-159/90 Society for the Protection of Unborn Children Ireland v Grogan [1991] ECR I-4685, paragraph 12, a national court is empowered to make a reference to the Court for a preliminary ruling under Article 177 of the Treaty only if a dispute is pending before it in the context of which it is called on to give a decision which could take into account the preliminary ruling. Conversely, the Court has no jurisdiction to hear a reference for a preliminary ruling when at the time it is made the procedure before the court making it has already been concluded.
22 According to settled case-law, 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 legal context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based. Those requirements are of particular importance in certain areas, such as that of competition, where the factual and legal situations are often complex (see, in particular, Joined Cases C-320/90 to C-322/90 Telemarsicabruzzo and Others [1993] ECR I-393, paragraphs 6 and 7, Case C-67/96 Albany International v Stichting Bedrijfspensioenfonds Textielindustrie [1999] ECR I-0000, paragraph 39, and Joined Cases C-115/97 to C-117/97 Brentjens' Handelsonderneming v Stichting Bedrijfspensioenfonds voor de Handel in Bouwmaterialen [1999] ECR I-0000, paragraph 38).
23 The information provided in decisions making references must not only enable the Court to reply usefully but also give the governments of the Member States and other interested parties the opportunity to submit observations pursuant to Article 20 of the EC Statute of the Court of Justice. It is the Court's duty to ensure that that opportunity is safeguarded, bearing in mind that, by virtue of the abovementioned provision, only the decisions making references are notified to the interested parties (see inter alia the order in Case C-458/93 Saddik [1995] ECR I-511, paragraph 13, and the judgments in Albany International, paragraph 40, and Brentjens' Handelsonderneming, paragraph 39).
26 Moreover, the information in the order for reference was supplemented by the material in the case-file forwarded by the national court and the written observations submitted to the Court. All that material, which was included in the Report for the Hearing, was brought to the notice of the Governments of the Member States and the other interested parties for the purposes of the hearing, at which they had an opportunity, if necessary, to amplify their observations (see also, to that effect, Albany International, paragraph 43, and Brentjens' Handelsonderneming, paragraph 42).
32 It should be noted, as a preliminary point, that, having regard to the objectives of the Community, sport is subject to Community law in so far as it constitutes an economic activity within the meaning of Article 2 of the EC Treaty (now, after amendment, Article 2 EC) (see Case 36/74 Walrave v Union Cycliste Internationale [1974] ECR 1405, paragraph 4, and Case C-415/93 Union Royale Belge des Sociétés de Football Association and Others v Bosman and Others [1995] ECR I-4921, paragraph 73). The Court has also acknowledged that sport has considerable social importance in the Community (see Bosman, paragraph 106).
33 That case-law is also supported by Declaration No 29 on sport annexed to the Final Act of the conference which adopted the text of the Treaty of Amsterdam, which emphasises the social importance of sport and calls on the institutions of the European Union inter alia to give special consideration to the particular characteristics of amateur sport. In particular, that declaration is consistent with the above case-law, in that it concerns situations where sport constitutes an economic activity.
34 The Treaty provisions concerning freedom of movement for persons do not preclude rules or practices excluding foreign players from certain matches for reasons which are not of an economic nature, which relate to the particular nature and context of such matches and are thus of sporting interest only, as in the case of matches between national teams from different countries. The Court has, however, stated that that restriction on the scope of the Treaty must remain limited to its proper objective, and may not be relied on to exclude therefrom the whole of a sporting activity (see Case 13/76 Donà v Mantero [1976] ECR 1333, paragraphs 14 and 15, and Bosman, paragraphs 76 and 127).
35 As to the character of the rules at issue in the main proceedings, it follows from Walrave, paragraphs 17 and 18, and Bosman, paragraphs 82 and 83, that the Community provisions on freedom of movement for persons and freedom to provide services not only apply to the action of public authorities but extend also to rules of any other nature aimed at regulating gainful employment and the provision of services in a collective manner. The abolition as between Member States of obstacles to freedom of movement for persons and 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.
37 According to settled case-law, Article 6 of the Treaty, which lays down as a general principle that there shall be no discrimination on grounds of nationality, applies independently only to situations governed by Community law for which the Treaty lays down no specific rules prohibiting discrimination (see, inter alia, Case C-179/90 Merci Convenzionali Porto di Genova v Siderurgica Gabrielli [1991] ECR I-5889, paragraph 11, and Case C-379/92 Peralta [1994] ECR I-3453, paragraph 18).
40 In the context of the judicial cooperation between national courts and the Court of Justice in connection with references for a preliminary ruling, it is for the national court to establish and evaluate the facts of the case (see, inter alia, Case 139/85 Kempf v Staatssecretaris van Justitie [1986] ECR 1741, paragraph 12) and for the Court of Justice to provide the national court with such interpretative information as may be necessary to enable it to decide the dispute (Case C-332/88 Alimenta v Doux [1990] ECR I-2077, paragraph 9).
42 Next, with respect to the concepts of economic activity within the meaning of Article 2 and worker within the meaning of Article 48 of the Treaty, it must be observed that these concepts define the scope of one of the fundamental freedoms guaranteed by the Treaty and, as such, may not be interpreted restrictively (see, to that effect, Case 53/81 Levin v Staatssecretaris van Justitie [1982] ECR 1035, paragraph 13).
43 With respect more specifically to the former concept, it is settled case-law (Donà, paragraph 12, and Case 196/87 Steymann v Staatssecretaris van Justitie [1988] ECR 6159, paragraph 10) that work as a paid employee or the provision of services for remuneration must be regarded as an economic activity within the meaning of Article 2 of the Treaty.
44 However, as the Court held inter alia in Levin, paragraph 17, and Steymann, paragraph 13, those activities must be effective and genuine activities and not such as to be regarded as purely marginal and ancillary.
45 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 (see, in particular, Case 66/85 Lawrie-Blum v Land Baden-Württemberg [1986] ECR 2121, paragraphs 16 and 17).
49 Those rules are nevertheless liable to restrict the freedom of movement of players who wish to pursue their activity in another Member State, by preventing Belgian clubs from fielding in championship matches basketball players from other Member States where they have been engaged after a specified date. Those rules consequently constitute an obstacle to freedom of movement for workers (see, to that effect, Bosman, paragraphs 99 and 100).
50 The fact that the rules in question concern not the employment of such players, on which there is no restriction, but the extent to which their clubs may field them in official matches is irrelevant. In so far as participation in such matches is the essential purpose of a professional player's activity, a rule which restricts that participation obviously also restricts the chances of employment of the player concerned (see Bosman, paragraph 120).
Existence of justifications
56 However, measures taken by sports federations with a view to ensuring the proper functioning of competitions may not go beyond what is necessary for achieving the aim pursued (see Bosman, paragraph 104).