61991O0117(01)

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1. Action for annulment - Measures open to challenge - Definition - Measures having binding legal effects - Noting by the Commission of conduct contemplated by a private association

(EEC Treaty, Art. 173)

2. Action for damages - Action brought against the Commission on the basis of a measure having no legal effect - Inadmissibility

(EEC Treaty, Art. 178 and second para. of Art. 215)

1. Only measures, the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position may the subject of an application for annulment.

That is not the position where it is clear from a press release distributed by the Commission that it confined itself on the one hand to taking formal notice of the amendments which a private association coordinating professional football at the European level proposed to make to its rules in order to facilitate the movement of professional footballers within the Community and, on the other hand, the plans envisaged in relation to the question of transfer of players, for in so doing the Commission neither adopted any unilateral decision having legal effects with regard to third parties nor entered into any contract or agreement capable of being challenged before the Court.

2. An action seeking compensation for damage caused by the alleged unlawfulness of a measure adopted by an institution is inadmissible where that measure has no legal effect.

In Case C-117/91,

Jean-Marc Bosman, represented by J.-L. Dupont, L. Misson and M.-A. Lucas, of the Liège Bar, with an address for service in Luxembourg at the Chambers of E. Korn, 21, Rue de Nassau,

applicant,

v

Commission of the European Communities, represented by Jean-Claude Séché, Legal Adviser, Enrico Traversa, a member of its Legal Service, and T. Margellos, a senior lecturer at the University of Picardy, on secondment to the Commission, acting as Agents, with an address for service in Luxembourg at the office of Roberto Hayder, a representative of its Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for the annulment of a decision allegedly adopted on 17 April 1991 by the Commission in relation to an agreement between the Commission and the Union of European Football Associations and for compensation for the damage caused by that decision,

THE COURT,

composed of: O. Due, President, G.F. Mancini, T.F. O' Higgins, J.C. Moitinho de Almeida, G.C. Rodríguez Iglesias and M. Díez de Velasco (Presidents of Chambers), Sir Gordon Slynn, C.N. Kakouris, R. Joliet, F.A. Schockweiler, F. Grévisse, M. Zuleeg and P.J.G. Kapteyn, Judges,

Advocate General: C.O. Lenz,

Registrar: J.-G. Giraud,

after hearing the Advocate General,

makes the following

Order

1 By application lodged at the Court Registry on 23 April 1991, Mr Jean-Marc Bosman, a professional footballer, brought an action under the second paragraph of Article 173 of the EEC Treaty for the annulment of a decision adopted by the Commission on 17 April 1991, as set out in particular in the Commission' s press release IP(91)316 of 18 April 1991, regarding an agreement between the Commission and the Union of European Football Associations (hereinafter referred to as "UEFA") on nationality clauses applicable to national championships and the system of transfer fees applicable to the transfer of professional players from one club to another. Pursuant to Article 178 and the second paragraph of Article 215 of the EEC Treaty, the applicant further sought compensation for the damage caused to him by that decision.

2 It is apparent from the press release to which the applicant refers that following conversations between the Vice-President of the Commission, Mr Bangemann, acting in pursuance of the powers conferred on him by the Commission, and the UEFA, the latter agreed to amend its rules so that, as from the 1992/93 season, at least three non-national players, together with two non-national players actively engaged in their profession in the host country without interruption for five years, would be allowed to be fielded in the first-division matches played in national championships - the scheme being extended to other divisions in which professional players operate, not later than the end of the 1996/97 season. The press release also notes that, as far as contractual bonds between clubs and professional players are concerned, a first step has been taken regarding transfers, an agreement having emerged, at that stage of negotiations, to accept the principle according to which any professional player is at liberty to play for another club upon the expiry of his contract, irrespective of the usual negotiations between the transferring club and the purchasing club concerning the fees to be paid to the former. The press release states in conclusion that the question of a "standard contract" between clubs and professional players will require more detailed discussions with all parties concerned.

3 By a separate document, also lodged at the Court Registry on 23 April 1991, the applicant submitted an application under Articles 185 and 186 of the EEC Treaty for interim measures. By order of 27 June 1991 the President of the Court dismissed that application.

4 By a separate document lodged at the Court Registry on 28 May 1991 the Commission raised an objection of inadmissibility pursuant to Article 91(1) of the Rules of Procedure, on which it requested the Court to give a decision without proceeding to consider the substance of the case.

5 On 1 July 1991, Mr Bosman submitted his written observations on the objection of inadmissibility pursuant to Article 91(2) of the Rules of Procedure.

6 The Court considered that it had sufficient information from the parties' written observations and, pursuant to Article 91(3) of the Rules of Procedure, decided to give a decision without an oral procedure.

The claim for annulment

7 In support of its objection to the admissibility of the application for annulment the Commission alleges that it is directed against a non-existent measure or at least one that cannot produce legal effects. The contested measure is an informal transitional arrangement recording the progress achieved towards complete liberalization of the regulations of national football federations and the UEFA.

8 The Commission states in particular that the contested measure does not have the content which the applicant attributes to it. It cannot be regarded as an implied "decision" on the complaint submitted by the applicant against, amongst others, the UEFA for infringement of Articles 85 and 86 of the EEC Treaty, since the investigation of that complaint is still in progress. Since no agreement has been notified by the UEFA, the contested measure cannot be regarded as a decision of exemption pursuant to Article 85(3) of the Treaty or as a negative clearance pursuant to Article 2 of Regulation No 17 of the Council of 6 February 1962, the first regulation implementing Articles 85 and 86 of the Treaty (Official Journal English Special Edition 1959-1962, p. 87).

9. According to the Commission, even on the assumption that there is a "decision", it was not addressed to the applicant and is not of direct and individual concern to him; it affects him only by reason of his objective status as a professional football player.

10 Mr Bosman, on the other hand, considers that the contested measure does have binding legal effect capable of affecting his interest in so far as it alters his legal position. The measure in question cannot be characterized as non-existent, since Community measures are presumed to be valid. Nor is it an informal arrangement, since it affects the legal position of third parties, or a preparatory measure, because the very terms of the agreement between the Commission and UEFA demonstrate its definitive nature.

11 The applicant maintains in particular that the contested measure may be regarded as a measure relating to the application of the rules on competition contained in the Treaty since it involves the implied rejection of a complaint made to the Commission on 20 November 1990 by Mr Bosman on the incompatibility with Article 85 of nationality clauses and the mechanisms for the transfer of footballers, or as a decision of exemption adopted pursuant to Article 85(3) of the Treaty or as a negative clearance pursuant to Article 2 of Regulation No 17. If that were not so, it could be a measure reinforcing the effects of an agreement contrary to Article 85 of the Treaty, a communication relating to Article 48 of the Treaty or a measure by which the Commission waives its powers under Article 169 of the Treaty.

12 Mr Bosman alleges that the measure is of direct concern to him within the meaning of Article 173 of the Treaty since it in no way implies any implementing measure on the part of the Member States. The measure is also of individual concern to him in so far as it constitutes a reply to the complaint which he had made to the Commission and to the information which he had given to it on his opposition to an agreement. The Commission had decided to reopen negotiations with the UEFA following the action brought by Mr Bosman before the Belgian courts and the resolution of his personal case was a subject of a clause in the agreement. Mr Bosman is the only player in the Community engaged in legal proceedings with his federation and the Commission decision could affect the outcome of the proceedings in his case. Finally, his situation is individual to himself by reason of the specific nature and seriousness of the damage suffered.

13 In order to determine whether the present action is admissible the Court must consider, as a preliminary point, the nature of the contested measure. The Court has consistently held that only measures, the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position may be the subject of an application for annulment (see Case 60/81 IBM v Commission [1981] ECR 2639).

14 That is not the position with regard to the contested measure. It is clear from the very terms of the press release cited by the applicant and the other documents which he has produced to the Court that on conclusion of the negotiations which took place between the Vice-President of the Commission and the UEFA on the position of professional footballers in the Community the Commission confined itself on the one hand to taking formal notice of the amendments which the UEFA proposed to make to its rules in order to facilitate the movement of players within the Community and on the other hand the plans envisaged in relation to the question of the transfer of players. It thus neither adopted any unilateral decision having legal effects with regard to third parties nor entered into any contract or agreement, of whatever nature, with the UEFA which was capable of being reviewed by the Court.

15 It follows from those findings that the contested measure is not capable of being the subject of an application for annulment and that the action must be dismissed as inadmissible.

The claims for damages

16 The Commission considers that the action for damages is inadmissible on the ground that the informal arrangement in question has not yet been finalized and that in any event it has no legal effect. Furthermore the damage alleged by the applicant is merely contingent.

17 Mr Bosman, on the other hand, considers that the action is admissible since the Commission' s measure has legal effects and the damage is genuine and present.

18 In that respect, it should be pointed out that Mr Bosman alleges he has suffered several distinct disadvantages which must be considered separately. It is therefore necessary to consider the admissibility of the claims for damages in relation to the various disadvantages cited.

19 Mr Bosman states that he has been placed in danger of losing his case before the Belgian courts and that the equilibrium of the proceedings has been upset; he also risks losing his present employment and being faced with a restriction of the employment market on which he should be able to offer his services. Those adverse effects are the result of the fault committed by the Commission in adopting the decision of 17 April 1991, alleged by the applicant to be unlawful, and which is also the subject of his claim for annulment.

20 As found above, that measure has no legal effect. The Court has already held (see the order in Case C-50/90 Sunzest (Europe) and Sunzest (Netherlands) v Commission [1991] ECR I-2917) that an action for damages seeking compensation for damage caused, in the applicant' s view, solely by the unlawfulness of a measure adopted by an institution is inadmissible where that measure has no legal effect.

21 The claim based on the second paragraph of Article 215 of the Treaty must therefore be dismissed as inadmissible.

22 It is therefore necessary to apply Article 91(4) of the Rules of Procedure and to declare the action inadmissible in its entirety.

Costs

23 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the applicant has been unsuccessful, he must be ordered to pay the costs.

On those grounds,

THE COURT

hereby orders:

1. The application is dismissed as inadmissible;

2. The applicant is ordered to pay the costs.

Luxembourg, 4 October 1991.