61976J0013

1 . DISCRIMINATION BASED UPON NATIONALITY - PROHIBITION - MATCHES BETWEEN PROFESSIONAL SPORTSMEN - EXCLUSION - INFRINGEMENT OF ARTICLES 48 TO 51 OR 59 TO 66 OF THE EEC TREATY - RESTRICTIONS IN THE CASE OF MATCHES FOR REASONS WHICH ARE NOT OF AN ECONOMIC NATURE - PERMISSIBILITY - JURISDICTION OF THE NATIONAL COURT

( EEC TREATY , ARTICLES 7 , 48 TO 51 , 59 TO 66 )

2 . WORKERS - FREEDOM OF MOVEMENT - SERVICES - FREEDOM TO PROVIDE - DISCRIMINATION - ABOLITION - DIRECT EFFECT - INDIVIDUAL RIGHTS - PROTECTION BY NATIONAL COURTS

( EEC TREATY , ARTICLE 48 , FIRST PARAGRAPH OF ARTICLE 59 , THIRD PARAGRAPH OF ARTICLE 60 ).

1 . RULES OR A NATIONAL PRACTICE , EVEN ADOPTED BY A SPORTING ORGANIZATION , WHICH LIMIT THE RIGHT TO TAKE PART IN FOOTBALL MATCHES AS PROFESSIONAL OR SEMI-PROFESSIONAL PLAYERS SOLELY TO THE NATIONALS OF THE STATE IN QUESTION , ARE INCOMPATIBLE WITH ARTICLE 7 AND , AS THE CASE MAY BE , WITH ARTICLES 48 TO 51 OR 59 TO 66 OF THE TREATY , UNLESS SUCH RULES OR PRACTICE EXCLUDE FOREIGN PLAYERS FROM PARTICIPATION IN 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 . IT IS FOR THE NATIONAL COURT TO DETERMINE THE NATURE OF THE ACTIVITIES SUBMITTED TO ITS JUDGMENT AND TO TAKE INTO ACCOUNT ARTICLES 7 , 48 AND 59 OF THE TREATY , WHICH ARE MANDATORY IN NATURE , IN ORDER TO JUDGE THE VALIDITY OR THE EFFECTS OF A PROVISION INSERTED INTO THE RULES OF A SPORTING ORGANIZATION .

2 . ARTICLE 48 ON THE ONE HAND AND THE FIRST PARAGRAPH OF ARTICLE 59 AND THE THIRD PARAGRAPH OF ARTICLE 60 OF THE TREATY ON THE OTHER - THE LAST TWO PROVISIONS AT LEAST IN SO FAR AS THEY SEEK TO ABOLISH ANY DISCRIMINATION AGAINST A PERSON PROVIDING A SERVICE BY REASON OF HIS NATIONALITY OR THE FACT THAT HE RESIDES IN A MEMBER STATE OTHER THAN THAT IN WHICH THE SERVICE IS TO BE PROVIDED - HAVE A DIRECT EFFECT IN THE LEGAL ORDERS OF THE MEMBER STATES AND CONFER ON INDIVIDUALS RIGHTS WHICH NATIONAL COURTS MUST PROTECT .

IN CASE 13/76 ,

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE GIUDICE CONCILIATORE , ROVIGO , FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

GAETANO DONA

AND

MARIO MANTERO

ON THE INTERPRETATION IN PARTICULAR OF ARTICLES 7 , 48 AND 59 OF THE EEC TREATY ,

1 BY ORDER OF 7 FEBRUARY 1976 , RECEIVED AT THE COURT REGISTRY ON 13 FEBRUARY 1976 , THE GIUDICE CONCILIATORE , ROVIGO , REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY VARIOUS QUESTIONS CONCERNING THE INTERPRETATION OF ARTICLES 7 , 48 AND 59 OF THAT TREATY .

2 THE FIRST TWO QUESTIONS ASK WHETHER ARTICLES 7 , 48 AND 59 OF THE TREATY CONFER UPON ALL NATIONALS OF THE MEMBER STATES OF THE COMMUNITY THE RIGHT TO PROVIDE A SERVICE ANYWHERE IN THE COMMUNITY AND , IN PARTICULAR , WHETHER FOOTBALL PLAYERS ALSO ENJOY THE SAME RIGHT WHERE THEIR SERVICES ARE IN THE NATURE OF A GAINFUL OCCUPATION .

3 SHOULD THE ANSWER TO THESE TWO QUESTIONS BE IN THE AFFIRMATIVE , THE THIRD QUESTION ASKS THE COURT ESSENTIALLY TO RULE WHETHER THE ABOVEMENTIONED RIGHT MAY ALSO BE RELIED ON TO PREVENT THE APPLICATION OF CONTRARY RULES DRAWN UP BY A SPORTING FEDERATION WHICH IS COMPETENT TO CONTROL FOOTBALL ON THE TERRITORY OF A MEMBER STATE .

4 IN CASE THE FIRST THREE QUESTIONS SHOULD BE ANSWERED IN THE AFFIRMATIVE , THE FOURTH QUESTION ASKS THE COURT WHETHER THE RIGHT IN QUESTION MAY BE DIRECTLY INVOKED IN THE NATIONAL COURTS AND WHETHER THE LATTER ARE BOUND TO PROTECT IT .

5 THESE QUESTIONS HAVE ARISEN IN THE CONTEXT OF AN ACTION BETWEEN TWO ITALIAN NATIONALS OVER THE COMPATIBILITY OF THE ABOVEMENTIONED ARTICLES OF THE TREATY WITH CERTAIN PROVISIONS OF THE RULES OF THE ITALIAN FOOTBALL FEDERATION , UNDER WHICH ONLY PLAYERS WHO ARE AFFILIATED TO THAT FEDERATION MAY TAKE PART IN MATCHES AS PROFESSIONAL OR SEMI-PROFESSIONAL PLAYERS , WHILST AFFILIATION IN THAT CAPACITY IS IN PRINCIPLE ONLY OPEN TO PLAYERS OF ITALIAN NATIONALITY .

6 ( 1 ) ARTICLE 7 OF THE TREATY PROVIDES THAT WITHIN THE SCOPE OF APPLICATION OF THE TREATY , ANY DISCRIMINATION ON GROUNDS OF NATIONALITY SHALL BE PROHIBITED .

AS REGARDS EMPLOYED PERSONS AND PERSONS PROVIDING SERVICES , THIS RULE HAS BEEN IMPLEMENTED BY ARTICLES 48 TO 51 AND 59 TO 66 OF THE TREATY RESPECTIVELY AND BY MEASURES OF THE COMMUNITY INSTITUTIONS ADOPTED ON THE BASIS OF THOSE PROVISIONS .

7 AS REGARDS WORKERS IN PARTICULAR , ARTICLE 48 PROVIDES THAT FREEDOM OF MOVEMENT SHALL ENTAIL THE ABOLITION OF ANY DISCRIMINATION BASED ON NATIONALITY BETWEEN WORKERS OF THE MEMBER STATES AS REGARDS EMPLOYMENT , REMUNERATION AND OTHER CONDITIONS OF WORK AND EMPLOYMENT .

8 UNDER THE TERMS OF ARTICLE 1 OF REGULATION NO 1612/68 OF THE COUNCIL OF 15 OCTOBER 1968 ON FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY , ( OJ ENGLISH SPECIAL EDITION 1968 ( II ), P . 476 ), ANY NATIONAL OF A MEMBER STATE SHALL , IRRESPECTIVE OF HIS PLACE OF RESIDENCE , ' HAVE THE RIGHT TO TAKE UP AN ACTIVITY AS AN EMPLOYED PERSON , AND TO PURSUE SUCH ACTIVITY , WITHIN THE TERRITORY OF ANOTHER MEMBER STATE ' .

9 AS REGARDS FREEDOM TO PROVIDE SERVICES WITHIN THE COMMUNITY , ARTICLE 59 PROVIDES THAT THE RESTRICTIONS EXISTING IN THIS FIELD SHALL BE ABOLISHED IN RESPECT OF NATIONALS OF MEMBER STATES WHO ARE ESTABLISHED IN A STATE OF THE COMMUNITY OTHER THAN THAT OF THE PERSON FOR WHOM THE SERVICES ARE INTENDED .

10 UNDER THE THIRD PARAGRAPH OF ARTICLE 60 THE PERSON PROVIDING A SERVICE MAY , IN ORDER TO DO SO , TEMPORARILY PURSUE HIS ACTIVITY IN THE STATE WHERE THE SERVICE IS PROVIDED , UNDER THE SAME CONDITIONS AS ARE IMPOSED BY THAT STATE ON ITS OWN NATIONALS .

11 THE RESULT OF THE FOREGOING IS THAT ANY NATIONAL PROVISION WHICH LIMITS AN ACTIVITY COVERED BY ARTICLES 48 TO 51 OR 59 TO 66 OF THE TREATY TO THE NATIONALS OF ONE MEMBER STATE ALONE IS INCOMPATIBLE WITH THE COMMUNITY RULE .

12 ( 2 ) HAVING REGARD TO THE OBJECTIVES OF THE COMMUNITY , THE PRACTICE OF SPORT IS SUBJECT TO COMMUNITY LAW ONLY IN SO FAR AS IT CONSTITUTES AN ECONOMIC ACTIVITY WITHIN THE MEANING OF ARTICLE 2 OF THE TREATY .

THIS APPLIES TO THE ACTIVITIES OF PROFESSIONAL OR SEMI-PROFESSIONAL FOOTBALL PLAYERS , WHICH ARE IN THE NATURE OF GAINFUL EMPLOYMENT OR REMUNERATED SERVICE .

13 WHERE SUCH PLAYERS ARE NATIONALS OF A MEMBER STATE THEY BENEFIT IN ALL THE OTHER MEMBER STATES FROM THE PROVISIONS OF COMMUNITY LAW CONCERNING FREEDOM OF MOVEMENT OF PERSONS AND OF PROVISION OF SERVICES .

14 HOWEVER , THOSE PROVISIONS DO NOT PREVENT THE ADOPTION OF RULES OR OF A PRACTICE EXCLUDING FOREIGN PLAYERS FROM PARTICIPATION IN 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 , SUCH AS , FOR EXAMPLE , MATCHES BETWEEN NATIONAL TEAMS FROM DIFFERENT COUNTRIES .

15 THIS RESTRICTION ON THE SCOPE OF THE PROVISIONS IN QUESTION MUST HOWEVER REMAIN LIMITED TO ITS PROPER OBJECTIVE .

16 HAVING REGARD TO THE ABOVE , IT IS FOR THE NATIONAL COURT TO DETERMINE THE NATURE OF THE ACTIVITY SUBMITTED TO ITS JUDGMENT .

17 ( 3 ) AS THE COURT HAS ALREADY RULED IN ITS JUDGMENT OF 12 DECEMBER 1974 IN WALRAVE V UNION CYCLISTE INTERNATIONALE ( CASE 36/74 ( 1974 ) ECR 1405 ), THE PROHIBITION ON DISCRIMINATION BASED ON NATIONALITY DOES NOT ONLY APPLY TO THE ACTION OF PUBLIC AUTHORITIES BUT EXTENDS LIKEWISE TO RULES OF ANY OTHER NATURE AIMED AT COLLECTIVELY REGULATING GAINFUL EMPLOYMENT AND SERVICES .

18 IT FOLLOWS THAT THE PROVISIONS OF ARTICLES 7 , 48 AND 59 OF THE TREATY , WHICH ARE MANDATORY IN NATURE , MUST BE TAKEN INTO ACCOUNT BY THE NATIONAL COURT IN JUDGING THE VALIDITY OR THE EFFECTS OF A PROVISION INSERTED IN THE RULES OF A SPORTING ORGANIZATION .

19 THE ANSWER TO THE QUESTIONS REFERRED TO THE COURT MUST THEREFORE BE THAT RULES OR A NATIONAL PRACTICE , EVEN ADOPTED BY A SPORTING ORGANIZATION , WHICH LIMIT THE RIGHT TO TAKE PART IN FOOTBALL MATCHES AS PROFESSIONAL OR SEMI-PROFESSIONAL PLAYERS SOLELY TO THE NATIONALS OF THE STATE IN QUESTION , ARE INCOMPATIBLE WITH ARTICLE 7 AND , AS THE CASE MAY BE , WITH ARTICLES 48 TO 51 OR 59 TO 66 OF THE TREATY UNLESS SUCH RULES OR PRACTICE EXCLUDE FOREIGN PLAYERS FROM PARTICIPATION IN 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 .

20 ( 4 ) AS THE COURT HAS ALREADY RULED IN ITS JUDGMENTS OF 4 DECEMBER 1974 IN CASE 41/74 ( VAN DUYN V HOME OFFICE ( 1974 ) ECR 1337 ) AND 3 DECEMBER 1974 IN CASE 33/74 ( VAN BINSBERGEN V BESTUUR VAN DE BEDRIJFSVERENIGING VOOR DE METAALNIJVERHEID ( 1974 ) ECR 1299 ) RESPECTIVELY , ARTICLE 48 ON THE ONE HAND AND THE FIRST PARAGRAPH OF ARTICLE 59 AND THE THIRD PARAGRAPH OF ARTICLE 60 OF THE TREATY ON THE OTHER - THE LAST TWO PROVISIONS AT LEAST IN SO FAR AS THEY SEEK TO ABOLISH ANY DISCRIMINATION AGAINST A PERSON PROVIDING A SERVICE BY REASON OF HIS NATIONALITY OR OF THE FACT THAT HE RESIDES IN A MEMBER STATE OTHER THAN THAT IN WHICH THE SERVICE IS TO BE PROVIDED - HAVE A DIRECT EFFECT IN THE LEGAL ORDERS OF THE MEMBER STATES AND CONFER ON INDIVIDUALS RIGHTS WHICH NATIONAL COURTS MUST PROTECT .

COSTS

21 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE , AND AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE GIUDICE CONCILIATORE , ROVIGO , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE GIUDICE CONCILIATORE , ROVIGO , BY ORDER OF 7 FEBRUARY 1976 , HEREBY RULES :

1 . RULES OR A NATIONAL PRACTICE , EVEN ADOPTED BY A SPORTING ORGANIZATION , WHICH LIMIT THE RIGHT TO TAKE PART IN FOOTBALL MATCHES AS PROFESSIONAL OR SEMI-PROFESSIONAL PLAYERS SOLELY TO THE NATIONALS OF THE STATE IN QUESTION , ARE INCOMPATIBLE WITH ARTICLE 7 AND , AS THE CASE MAY BE , WITH ARTICLES 48 TO 51 OR 59 TO 66 OF THE TREATY , UNLESS SUCH RULES OR PRACTICE EXCLUDE FOREIGN PLAYERS FROM PARTICIPATION IN 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 .

2 ARTICLE 48 ON THE ONE HAND AND THE FIRST PARAGRAPH OF ARTICLE 59 AND THE THIRD PARAGRAPH OF ARTICLE 60 OF THE TREATY ON THE OTHER - THE LAST TWO PROVISIONS AT LEAST IN SO FAR AS THEY SEEK TO ABOLISH ANY DISCRIMINATION AGAINST A PERSON PROVIDING A SERVICE BY REASON OF HIS NATIONALITY OR THE FACT THAT HE RESIDES IN A MEMBER STATE OTHER THAN THAT IN WHICH THE SERVICE IS TO BE PROVIDED - HAVE A DIRECT EFFECT IN THE LEGAL ORDERS OF THE MEMBER STATES AND CONFER ON INDIVIDUALS RIGHTS WHICH NATIONAL COURTS MUST PROTECT .