Facts
Walrave and Koch
Before 2006, sport in Europe had what was called a sporting exception [2] because of the case of two Dutch cyclists in Walrave and Koch (Walrave and Koch v Association Union Cycliste Internationale) at the European Court of Justice in 1974 which was ruling whether organisations (such as the UCI in this case) could be held to the same discrimination rules as member states. It was clear from Treaty provisions 7 (the prohibition on nationality-based discrimination), 48 (presumption of free movement of (employed) workers) and 59 (presumption of free movement of (self-employed) workers) that no EEC member state could discriminate in this way but it was untested in European courts whether a regulatory or sanctioning organisation could be held to the same rules.
The European Courts of Justice stated that its rules for member states did not apply to an organisation that sanctioned and regulated a certain sport because the rules were essentially made for EU economic activity and as these were rules consisting of a purely sporting character, were not subject to Community law, even if they restrained the economic freedom of certain professional or semi-professional athletes.: [3]
- These 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. However, the prohibitions enacted by these provisions of the Treaty do not affect rules concerning questions which are of purely sporting interest and, as such, have nothing to do with economic activity.
- The general objective of anti-doping rules relating to sport is to combat doping in order for competitive sport to be conducted fairly and includes the need to safeguard equal chances for athletes, athletes' health, the integrity and objectivity of competitive sport and ethical values in sport. In addition, given that penalties are necessary to ensure enforcement of the doping ban, their effect on athletes' freedom of action must be considered to be, in principle, inherent itself in the anti-doping rules.
- Since, moreover, working conditions in the various Member States are governed by means of provisions laid down in law or regulations and sometimes by agreements and other acts concluded by private persons, to limit the prohibitions in question to acts of a public authority would risk creating inequality in their application.
This ruling states that European law only applies to "economic activities" within the overall meaning of Article 2 of the Treaty. In Walrave, the Court held that EU law did not apply to rules governing the composition of national sports teams and it was not for the ECJ to assess whether or not such rules were disproportionate. This in effect meant that regulators in sport could continue regulating in a way that they felt best without adhering to certain rules by the EU.
The Bosman ruling
For more information see Bosman ruling
One of the first challenges to the Walrave and Koch ruling was by the Belgian footballer Jean-Marc Bosman. Bosman was a midfielder who joined Standard Liège in 1983. After failing to establish himself there and RFC Liège his contract expired in 1990. Dunkerque wanted to sign him but would not meet RFCL's fee, the Belgian club then cut Bosman's pay by 75%. Bosman's lawyers including Jean-Louis Dupont sued club, Belgian FA and UEFA for restraint of trade and in December 1995 the EU court said out-of-contract players can move on free transfers and banned limits on number of foreign EU players under the EU Restraint of Trade law.
Although Bosman's victory was pyrrhic ending in alcoholism and incarceration [4] the effect it had was it reversed parts of the Walrave and Koch ruling namely that contractual restrictions on freedom to conduct business could not be an exception. Since Bosman, other cases have been brought to the ECJ like Deliège [5] which has weakened the sporting exception further.
David Meca-Medina and Igor Majcen
David Meca-Medina and Igor Majcen were long distance swimmers from Spain and Slovenia respectively who after finishing first and second in a World Cup race in Brazil both had positive anti-doping test for Nandrolone, a prohibited [6] anabolic steroid, and were banned for a period of four years by a decision of FINA's Doping Panel of 8 August 1999. Meca-Medina and Majcen then appealed the decision before the Court of Arbitration for Sport, which confirmed the suspension on 29 February 2000 before reconsidering it and subsequently reducing it to a period of two years.
The EEC and the EU
The 1974 ruling of Walrave was made in a different version of the EU. The Treaty of Rome of 1957 established the European Economic Community or "Common Market" as it was known and its scope was far narrower than the EU is today. It was primarily an economic tool and had as its aim the economic union of its member nations. When the Maastricht Treaty was signed in 1993 the aims of the supranational organisation was enlarged and incorporated other institutions like the Court of Justice of the European Union, the European Central Bank, and the European Parliament. This was enough to convince the court that previous cases based on Walrave could be modified or supplanted.
Submissions
Meca-Medina and Majcen (also represented by Jean-Louis DUPONT) subsequently filed a case against the executive body of the European Union, the European Commission, that the rules adopted by the International Olympic Committee concerning doping control were incompatible with the EC rules on competition and freedom to provide services. [7] As the rules at the time stated, European law mostly (apart from the above Bosman and Deliège cases) only applied to economic activities within Article 2 of the Treaty. [8] On 30 May 2001, the appellants filed a complaint with the Commission, stating that anti-doping rules breached articles 49, 81 and 82 of the EC Treaty. Article 82 states: [9]
- Any abuse by one or more undertakings of a dominant position within the common market or in a substantial part of it shall be prohibited as incompatible with the common market insofar as it may affect trade between Member States.
They argued that the fixing of the limit for Nandrolone at two nanogrammes per millilitre of urine was a concerted practice between the IOC and the 27 laboratories accredited by it and that the anti-competitive nature of that practice was reinforced by the fact that the tribunals responsible for the settlement of sports disputes by arbitration were not independent of the IOC. [10]
The European Court of Justice (ECJ), formally just the Court of Justice, is the supreme court of the European Union in matters of European Union law. As a part of the Court of Justice of the European Union, it is tasked with interpreting EU law and ensuring its uniform application across all EU member states under Article 263 of the Treaty of the Functioning of the European Union (TFEU).
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Union Royale Belge des Sociétés de Football Association ASBL v Jean-Marc Bosman (1995) C-415/93 is a 1995 European Court of Justice decision concerning freedom of movement for workers, freedom of association, and direct effect of article 39 of the Treaty of Rome.
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In European Union law, direct effect is the principle that Union law may, if appropriately framed, confer rights on individuals which the courts of member states of the European Union are bound to recognise and enforce.
R v Secretary of State for Transport was a judicial review case taken against the United Kingdom government by a company of Spanish fishermen who claimed that the United Kingdom had breached European Union law by requiring ships to have a majority of British owners if they were to be registered in the UK. The case produced a number of significant judgements on British constitutional law, and was the first time that courts held that they had power to restrain the application of an Act of Parliament pending trial and ultimately to disapply that Act when it was found to be contrary to EU law.
European Union citizenship is afforded to all nationals of member states of the European Union (EU). It was formally created with the adoption of the 1992 Maastricht Treaty, at the same time as the creation of the EU. EU citizenship is additional to, as it does not replace, national citizenship. It affords EU citizens with rights, freedoms and legal protections available under EU law.
The European single market, also known as the European internal market or the European common market, is the single market comprising mainly the 27 member states of the European Union (EU). With certain exceptions, it also comprises Iceland, Liechtenstein, Norway, and Switzerland. The single market seeks to guarantee the free movement of goods, capital, services, and people, known collectively as the "four freedoms". This is achieved through common rules and standards that all participating states are legally committed to follow.
The Kolpak ruling is a European Court of Justice ruling handed down on 8 May 2003 in favour of Maroš Kolpak, a Slovak handball player. It declared that citizens of countries which have signed European Union Association Agreements have the same right to freedom of work and movement within the EU as EU citizens. Thus any restrictions placed on their right to work are deemed illegal under EU law. The legal actions in Germany set a precedent for professional sports in Europe, which have had a wide-ranging effect, especially in regard to English county cricket and European professional rugby.
The freedom of movement for workers is a policy chapter of the acquis communautaire of the European Union. The free movement of workers means that nationals of any member state of the European Union can take up an employment in another member state on the same conditions as the nationals of that particular member state. In particular, no discrimination based on nationality is allowed. It is part of the free movement of persons and one of the four economic freedoms: free movement of goods, services, labour and capital. Article 45 TFEU states that:
- Freedom of movement for workers shall be secured within the Community.
- Such 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.
- It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:
- The provisions of this article shall not apply to employment in the public service.
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Born in 1965 in Liège, Belgium, Jean-Louis Dupont is a lawyer specialized in European law.
