Editor’s note: Thomas Terraz is a third
year LL.B. candidate at the International and European Law programme at The
Hague University of Applied Sciences with a specialisation in European Law.
Currently he is pursuing an internship at the T.M.C. Asser Institute with a
focus on International and European Sports Law.
To many it may seem obvious that athletes in a national
championship should only be able to participate if they have the nationality of
the relevant state. The Dutch Road Cycling National Championships should have
Dutch cyclists, and the German Athletics Championships should have German athletes
and so forth. However, in reality, foreign competitors are allowed to
participate in many national championships in the EU, and there is a wide
discrepancy between the rules of national sport governing bodies on this issue.
There is no unified practice when investigating this point by country or by
sport, and rules on participation range from a complete ban on foreign
competitors to absolutely no mention of foreign athletes.
Thus, the question arises: should foreign athletes be able to participate in
national sport championships?
The Court of Justice of the European Union (CJEU) will soon
be required to provide an, at least partial, answer to this dilemma as a result
of an application for a preliminary
ruling. A German Court has
referred three questions to the CJEU on the case TopFit e.V. Daniele Biffi v
Deutscher Leichtathletikverband e.V. (DLV) which in essence ask whether EU
citizenship rights and in particular, the requirement of non-discrimination on
the basis of nationality, should be applied to non-nationals wishing to
participate in an athletics national championship in Germany. In the meantime,
the Advocate General (AG), who provides a non-binding opinion to the Court
before a decision is delivered, Evgeni Tanchev has delivered an interesting opinion on the case. It addresses the claims from the applicants
based on EU citizenship rights and urges the CJEU to instead review the case on
the basis of the freedom of establishment.
This blog will dissect the AG’s opinion to assess the main
arguments put forward in relation to freedom of establishment and EU
citizenship. Furthermore, it will weigh the ramifications this case may have on
the boundaries of EU law in relation to sport. To fully appreciate the AG’s
opinion, it is necessary to first discuss the intriguing factual and legal
background colouring this case. After all, this will not be the first time the CJEU
faces thorny issues concerning discrimination on the basis of nationality and sport. More...
Pursuant to Kelsen’s famous pyramid, the authority of norms may be
ranked according to their sources: Constitution is above the Law, which is in
turn superior to the Regulations, which themselves stand higher to the
Collective Agreement etc…Under French labour law, this ranking can however be
challenged by a “principle of favourable treatment” which allows a norm from a
lower rank to validly derogate from a superior norm, if (and only if) this
derogation benefits to the workers.
April 2014, the Cour de Cassation (the French Highest Civil Court) considered that
these principles apply in all fields of labour law, regardless of the
specificity of sport. In this case, Mr. Orene Ai’i, a professional
rugby player, had signed on 13 July 2007
an employment contract with the Rugby Club Toulonnais (RCT) for two sport
seasons with effect on 1 July 2007. More...