Case C‑22/18

TopFit eV and Daniele Biffi

Deutscher Leichtathletikverband eV

(Request for a preliminary ruling from the Amtsgericht Darmstadt)

Judgment of the Court (Third Chamber), 13 June 2019

(Reference for a preliminary ruling — Citizenship of the Union — Articles 18, 21 and 165 TFEU — Rules of a sports association — Participation in the national championship of a Member State by an amateur athlete holding the nationality of another Member State — Different treatment on the basis of nationality — Restriction on free movement)

Citizenship of the Union — Provisions of the Treaty — Scope ratione personae — National of a Member State practising a competitive amateur sport in a host Member State — Inclusion

(Arts 18, 21 and 165 TFEU)

(see paragraphs 27-35)
Education, professional training, youth and sport — Provisions of the Treaty — Recognition of the social importance of amateur sport within the European Union — Factor for integration in the society of the host Member State

(see paragraph 33)
Citizenship of the Union — Provisions of the Treaty — Scope — Rules of a sports association — Inclusion

(Arts 3 to 6, 18 and 21 TFEU)

(see paragraphs 36-40, 52, 53)
Citizenship of the Union — Equal treatment — Discrimination on grounds of nationality — Right to move and reside freely in the territory of the Member States — Rules of a sports association restricting the possibility for an amateur athlete holding the nationality of a Member State to participate in the national championships of another Member State — Restriction — Justification — Proportionality — Assessment by the national court

(Arts 18, 21 and 165 TFEU)

(see paragraphs 44, 46‑50, 52-54, 59, 60, 63, 66-67 and the operative part)

Résumé

The exclusion, in part, of nationals of other Member States from the German senior amateur athletics championships may be contrary to EU law

In the judgment TopFit and Biffi (C‑22/18), delivered on 13 June 2019, the Court interpreted Articles 18, 21 and 165 TFEU in the context of a dispute between an amateur athlete of Italian nationality and the German national athletics association concerning the conditions for the participation of nationals of other Member States in German amateur sports championships in the senior category.

According to the Court, those articles preclude rules of a national sports association under which an EU citizen, who is a national of another Member State and who has resided for a number of years in the territory of the Member State where that association, in which he runs in the senior category and in an amateur capacity, is established, cannot participate in the national championships in those disciplines in the same way as nationals can, or can participate in them only ‘outside classification’ or ‘without classification’, without being able to progress to the final and without being eligible to be awarded the title of national champion, unless those rules are justified by objective considerations which are proportionate to the legitimate objective pursued, this being a matter for the referring court to verify.

First, the Court found that an EU citizen, such as the amateur athlete in the present case, who has made use of his right to move freely, can legitimately rely on Articles 18 and 21 TFEU in connection with his practice of a competitive amateur sport in the society of the host Member State. In this respect, the Court referred in particular to the role of sport as a factor for integration in the society of the host Member State, as reflected in Article 165 TFEU.

The Court then held that the rules of a national sports association which govern the access of EU citizens to sports competitions are subject to the rules of the Treaty, in particular Articles 18 and 21 TFEU. In that respect, the Court noted that 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. That principle 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.

Finally, the Court concluded that, in the present case, there was a difference in treatment which was liable to restrict the freedom of movement of the amateur athlete in question within the meaning of Article 21 TFEU since, even if such a citizen fulfils the conditions relating to the obligatory sporting performances and has had an entitlement to participate for the sports event through a club affiliated with the national athletics association for at least one year, he may not, on account of his nationality, be permitted to participate in a national amateur running championship over short distances in the senior category or may be permitted to participate only in part. The Court added that the rules of a sports association such as those at issue in the main proceedings can also lead to athletes who are nationals of a Member State other than the Federal Republic of Germany being less well supported by the sports clubs to which they are affiliated as compared with national athletes, since those clubs will have less interest in investing in athletes who have no prospect of participating in the national championships, which is why athletes who are nationals of other Member States would be less able to integrate themselves into the sports club to which they are affiliated and, consequently, into the society of the Member State in which they are resident.

According to the Court, 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, which is for the national court to determine. Indeed, it appears to be legitimate to limit the award of the title of national champion in a particular sporting discipline to a national of the relevant Member State and consider that nationality requirement to be a characteristic of the title of national champion itself. However, it is vital that the restrictions resulting from the pursuit of that objective should observe the principle of proportionality, as that objective does not systematically justify any restriction on the participation of non-nationals in the national championships. It is for the national court to examine whether there are potential justifications by taking into account the objective, arising from a combined reading of the provisions of Article 21(1) TFEU and Article 165 TFEU, of increased openness in competitions and the importance of integrating residents, in particular long-term residents, in the host Member State. In any event, the total non-admission of a non-national athlete to a national championships on account of his nationality seems to be disproportionate where there is a mechanism for the participation of such an athlete in such championships, at the very least in the heats and/or without classification.