The International Association of Athletics Federations (IAAF), the monitoring body of track and field athletics, regularly submitted South African middle distance runner and Olympic gold medalist Mokgadi Caster Semenya to sex verification tests when it began questioning her sexual characteristics and speculating whether her body belonged on the Disorder of Sex Development (DSD) spectrum. DSD Syndrome is often defined as an “intersex condition” which affects the clear development of either/or genitalia, gonads and chromosomes into one distinctive sex or another. The spectrum of the intersex condition is particularly wide, and the disorder can sometimes be minimal - some cases of female infertility can actually be explained by an intersex condition.

The IAAF deemed the controversial sex verification tests necessary on the grounds that it was required to prove Semenya did not have a “medical condition” which could give her an “unfair advantage”. It was eventually found that, because of an intersex trait, Semenya did have abnormally high levels of testosterone for a woman, which, in the IAAF’s opinion, justified a need for regulatory hormonal adjustments in order for her to keep competing in the women’s category. The IAAF also funded research to determine how ‘hyperandrogenism’ affects athletic performance. In 2018, it issued Eligibility Regulations on Female Classification (“Athlete with Differences of Sexual Development”) for events from 400m to the mile, including 400m, hurdles races, 800m and 1’500m. The IAAF rules indicated that in case of an existing high level of testosterone, suppression or regulation by chemotherapy, hormonal castration, and/or iatrogenic irradiation was mandatory in order to take part in these events.

Semenya and her lawyers challenged the IAAF Regulations in front of the CAS, who, in a very controversial decision, deemed the Regulations a necessary, reasonable and proportionate mean “of achieving the aim of what is described as the integrity of female athletics and for the upholding of the ‘protected class’ of female athletes in certain events” (§626).

The CAS Ruling

Semenya and her attorneys claimed that forcing her to get unwanted medication represented a violation of human rights. On the 1^st May 2019, the Swiss-based Court of Arbitration of Sport (CAS) ruled in favor of the restrictions placed on female athletes with high levels of testosterone by the IAAF. The direct consequence of this decision for Semenya was the obligation for her to take testosterone suppressants in order to continue competing in her category of IAAF events.

In March 2019, the United Nations Human Rights Council issued a resolution indicating the IAAF Regulations were “not compatible with international human rights norms and standards, including the rights of women with differences of sex development” and that there was “no clear relationship of proportionality between the aim of the regulations and the proposed measures and their impact.”

Because the Regulations established conditions and restrictions which were targeted at the female (or intersex) athlete population exclusively and did not impose any equivalent conditions or restrictions on male athletes, the CAS Panel considered that the Regulations were, prima facie discriminatory on grounds of legal sex. After reminding that “it is common ground that a rule that imposes differential treatment on the basis of a particular protected characteristic is valid and lawful if it is a necessary, reasonable and a proportionate means of attaining a legitimate objective” (§548), the Panel considered that its sole responsibility was to determine whether the DSD Regulations were necessary, reasonable and proportionate. As such, the Panel said it was “not required to (…) appraise the adequacy of the IAAF’s policy-making process”.

The Swiss Federal Tribunal and ordre public

A decision from the CAS can only be challenged at the Swiss Federal Tribunal (SFT) on a limited number of grounds, enclosed in art. 190 al. 2 of the Federal Act on Private International Law (PILA), which include claiming that the principle of equal treatment of the parties or their right to be heard in an adversarial procedure has not been observed (lit. d) and that the award is incompatible with public policy (lit. e). At the beginning of June 2019, after an ex parte request, the SFT, Switzerland’s highest court, granted Semenya a temporary suspension of the IAAF rules on testosterone limits. She was able to compete over distances of 400 to 1’500m without medication, until the SFT issued a ruling.

Because it was considered that the discrimination was necessary, reasonable and proportionate in comparison with the vast majority of non-DSD women, the only outcome for Semenya’s lawyers was to argue on the violation of the principle of public order. The 30^th July 2019, the SFT reversed the ruling that temporarily lifted the application of the IAAF’s regulations, thus impeding her to defend her 800m title at the World Championships in Doha in September 2019. The SFT concluded that “neither the allegation of an infringement of the principle of non-discrimination, nor the alleged violation of ordre public due to an infringement of their personality and human dignity appeared with high probability to be well founded”. Welcoming the decision, the IAAF stated that, in certain particular cases, “biology trumps identity”.

The elements of comparison

Body Policing

Admitting that “the imperfect alignment between nature, law and identity is what gives rise to the conundrum at the heart of this case” (§559), the CAS stated that:

“On true analysis, (…) the purpose of the male-female divide in competitive athletics is not to protect athletes with a female legal sex from having to compete against athletes with a male legal sex. Nor is it to protect athletes with a female gender identity from having to compete against athletes with a male gender identity. Rather, it is to protect individuals whose bodies have developed in a certain way following puberty from having to compete against individuals who, by virtue of their bodies having developed in a different way following puberty, possess certain physical traits that create such a significant performance advantage that fair competition between the two groups is not possible.”

The public opinion could not help but point the finger at the underlying hypocrisy of the decision, in comparison with similar cases, both inside and outside of the sports world. Firstly, the same type of policy and legal arguments are often held for controlling certain types of bodies exclusively, whilst leaving others out of the line of sight. In the sports world, it is certainly the case: think of the impressive decoration of Olympian swimmer Michael Phelps aligned with the god-like praises he received for his physical strength and capacity; for instance. On the contrary, leaving “abnormally” tall basket-ball players on the bench so as to give naturally shorter players a chance to win, or testing male athletes with poor athletic results in suspicion they might have low levels of testosterone seems absurd. In fact, the latter are only tested as to make sure they do not take anything effectively modifying their capacities in competing. Semenya and her lawyers did point to the fact that “it is illogical and unnecessary to regulate one genetic trait while celebrating all the others” (CAS decision, §53).

Out of the sports world, indications of “naturalness” in pro-life arguments or governments’ refusal to medically cover the suppression of hormones in transgender reassignment cases are also examples of body policing. The case therefore raises the central question of how stereotypes, especially gender ones, give a social meaning to a fact and how legal regulation can confirm it, thus perpetuating it.

The social  meaning of women and gender

Taking a step away from Semenya’s cause célèbre, it must be stressed that, for long, women were not accepted to compete in the Olympics and that their progressive integration was only made possible when a redefinition of the norms of femininity and masculinity, as they relate to sports and competition, occurred. This means that medical tests were carried out and, as a backlash to noticing the instability and fluidity of sex categories, those very categories were reinforced and redefined according to stereotypes. In other words, the sports world went very far to ensure there was a biological difference so that the natural and social order as it was could not be disrupted.

If we try to move away from the (in my opinion, sterile) debate on biological differences (remembering that the latter has also been explained by anthropologists as being a consequence of our gendered social order[1]), we should ask ourselves who has the power to define the norms of femininity and masculinity. “Woman” and “man” have very particular social meanings. Furthermore, commentators often qualify the sex verification tests as being racially flawed. In this sense, the discussion is also of epistemological importance: the bonus corpus is never the female body, and is always the white male one, with “naturally” good athletic abilities. True, scientific results are usually dependent on a certain political order[2], as are any other empirical social-situated findings. The CAS Panel said that an assessment of the likely impact of the DSD Regulations on wider society would require “an analysis of multifaceted sociological issues which are not amenable to judicial resolution by an arbitral tribunal (…)” (§518). And, as such, it is certainly not for an arbitration court to have the power to (re)define gender categories, which are intrinsically political and historical, and are not limited to the sports world.

Appealing to the ECtHR

If she does not prevail before the SFT, Semenya could still appeal to the European Court of Human Rights, alleging a breach of Article 14 and/or Article 8[3]. It may give the Strasbourg Court an interesting opportunity to comment on gender opposition and binarity, as well as on the social limitations put on gendered bodies. The gender stereotypes discussion is not a new one; regional and international courts have had the opportunity, on many occasions, to comment on the need to combat harmful gender stereotypes[4]. However, they usually do so in relation to human rights law and to the principles of equality and non-discrimination. Even if, of course, not every unjustified discrimination is rooted in stereotypes[5], they seldom point at the wrong of gender stereotypes per se. Hopefully this may lead the ECtHR to further reflect on the harmfulness of gender stereotypes, beyond the well-established categories in need of protection against unjustified discrimination.

The CAS practically said that it was bound by biology. If anything, the results of the sex verification tests should have proven that Semenya’s body has incredible athletic abilities, with no requirements of medically modifying it whatsoever.

Conclusion

In a letter to the IAAF about their regulations, United Nations experts on health, torture, and women’s rights wrote:

“The assessment for ‘exclusion or treatment’ based on the IAAF regulations relies on suspicion and speculation, based on stereotypes about femininity. This effectively legitimizes widespread surveillance of all women athletes by requesting national federations as well as doctors, doping officials, and other official personnel to scrutinize women athletes’ perceived femininity, which can include appearance, gender expression, and sexuality. Women who are understood to be “suspicious” about their natural physical traits are tied to subjective and cultural expectations regarding which bodies and modes of gender expression are “appropriate,” or even valorised by adherence to traditional or normative aesthetics of femininity. Gender and sex-based stereotyping and stigma have a long history, not only of causing psychological harm to women and gender minorities, but also of increasing the possibility of violence against them.”

The social norms of gender act as a blur on reality, based on the stereotype that “a real woman” should not be that good of an athlete. It provides us with an overview of how public policy decisions are justified by scientific findings, operating in a gender-normative environment. The discrimination was considered “necessary, reasonable and proportionate” in comparison with the vast majority of non-DSD women, but it somehow appears to be a debate on the equality between women and men and on reaffirming the importance of the “fixed duality of sexual difference”[6]. The CAS Panel said that it was “faced with conflicting rights concerning the rights of female athletes who do, and do not, have DSD” (§554).

Interestingly enough, the more women are compared to each other, on the grounds of fairness, the stronger the female gender category is reinforced.

[1] Priscilla Touraille, Hommes grands, femmes petites : une évolution coûteuse. Les régimes de genre comme force sélective de l’évolution biologique, Éditions de la Maison des Sciences de l’Homme: Paris 2008.

[2] Thomas Laqueur, La Fabrique du Sexe: Essai sur le corps et le genre en Occident, Gallimard: Paris 1992.

[3] The ECtHR had considered an application brought following an unsuccessful appeal to the Swiss Federal Tribunal in the October 2018 decision ECtHR, Mutu and Pechstein v Switzerland, applications no. 40575/10 and no. 67474/10, ECLI:CE:ECHR:2018:1002JUD004057510, alleging breaches of Article 6 of the European Convention on Human Rights.

[4] The Office of the High Commissioner for Human Rights has broadly defined the notion of “harmful gender stereotypes”, as sexist beliefs, which include representing women in roles considered traditional; as mothers and household heads, as subordinates of men or as sexual objects. In 2013, the OHCHR prepared a report on sex and gender stereotypes, which outlines the practice of treaty bodies and their reference to gender stereotypes. The obligations of States with regard to stereotypes are those set out in Article 5 lit. a CEDAW, reinforced by Article 2 lit. f. which provides that States must “take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women”. At European level, judgments of the ECtHR have concerned stereotypes related in particular to sexuality (Kalucza v. Hungary), reproduction (A. B. C. v. Ireland; R. R. v. Poland) or domestic violence (Valiuliené v. Lithuania; Opuz v. Turkey). See also Konstantin Markin v. Russia; Carvalho Pinto de Sousa Morais v. Portugal; Khamtokhu and Aksenchick v. Russia.

[5] Sophia Moreau, ‘Equality Rights and Stereotypes’ in Dyzenhaus, D./ Thorburn, M. (eds.), Philosophical Foundations of Constitutional Law, Oxford University Press : Oxford 2019.

[6] Hilary Charlesworth, ‘Foreword’, in Harris Rimmer S./Ogg K., Feminist Engagement with International Law, Edward Elgar: Cheltenham 2019.

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.

1.     Introduction

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.[1] 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.

2.     Factual Background of TopFit e.V. Daniele Biffi v Deutscher Leichtathletikverband e.V. (DLV)

The second applicant in this case, Mr. Biffi, is an Italian resident in Germany since 2003. He works professionally as a personal trainer and coach and has a website which advertises his services. He has been a member of the Berlin-based athletics club TopFit (the first applicant) and has competed in athletics competitions including German national championships within the senior category of athletes above the age of 35. In these national competitions, he had his placings recorded and published his results on his website. In 2016, the DLV changed its rules on non-nationals participating in national championships across all age categories without notice or transitional period. The rules were changed to only allow German nationals to compete for the national title while non-nationals could only participate outside classification with the permission of the organisers. As a result, Mr. Biffi was even denied the ability to participate in one of the championships in which he previously participated without raising a brow. The applicants challenged the DLV rule on the basis that it is in contravention to the prohibition of discrimination on the basis of nationality under EU citizenship. 

3.     European Sports Law and Nationality Based Discrimination

Generally, sport governing bodies aim to have the maximum autonomy possible to formulate and apply their rules. In the EU, they have attempted and ultimately failed at securing an absolute autonomy.[2] The current relationship between the sport governing bodies and the EU has been described as a ‘conditional autonomy’ where sport governing bodies may exercise their discretion in formulating and applying their rules so long as they do not conflict with EU law.[3] It should be noted that the CJEU has mainly scrutinized rules from sport governing bodies which affect economic interests of the parties in the context of free movement and competition law. Evidently, this relationship has resulted in a struggle between sport governing bodies and the EU over a number of topics including non-discrimination on the basis of nationality.

Traditionally, the CJEU has addressed issues of non-discrimination on the basis of nationality in sports cases from a free movement perspective in ensuring that sport rules do not disrupt the EU’s internal market. For example, when a rule from the Union Cycliste Internationale (UCI) required that a pacemaker be the same nationality as the cyclist in the UCI Motor-paced World Championships, the CJEU rendered its ruling on the basis of the provisions establishing the free movement of workers and service providers. Moreover, the Union of European Football Associations’ (UEFA) 3 plus 2 rule which allowed football clubs to limit the number of foreign players who could play in a match to three players plus two more players who had been ‘assimilated’ by having played a certain amount of years in the concerned national football association were found in the famous Bosman case to be in contravention of the free movement of workers provisions.

In the present case, the parties have argued the case on the basis of the prohibition on the discrimination of nationality flowing from EU citizenship rights. Based on Article 9 of the Treaty on European Union, all nationals of an EU member state automatically have EU citizenship. However, these rights are only triggered when other more specific rights, such as free movement rights, are not activated first. Put differently, if the facts of a case fall within a free movement right, then the case can only be inspected in light of the relevant free movement provision; hence, EU citizenship rights may only be invoked where free movement rights are not applicable.

Interestingly enough, as the AG points out in his opinion, the facts of this case could also be framed as a restriction to freedom of establishment. In any event, the CJEU has yet to address sport rules which concern non-discrimination on the basis of freedom of establishment or EU citizenship.

So how should the CJEU address this issue? Freedom of establishment or EU citizenship rights?

4.     Analysing AG Tanchev’s Opinion: Freedom of Establishment or EU Citizenship Rights?

4.1.Scope of the Freedom of Establishment

Very early on in the opinion, AG Tanchev unambiguously expresses his preference for analysing the present case through a free movement lens.[4] He explains that Mr. Biffi is self-employed as a personal trainer and coach on a continuous and stable manner in Germany which amounts to an economic activity connected to his sporting pursuits.[5] Therefore, AG Tanchev believes the analysis should be pursued under the freedom of establishment provisions. For this view to be endorsed, it is essential that Mr. Biffi’s economic activity is sufficiently connected to his sporting endeavours.

In this context, AG Tanchev recalls the Deliège case which concerned a Judoka, who argued that a national sport governing body’s refusal to select her for an international competition was a violation of her freedom to provide services. The Court in that case had to determine whether she was engaged in an economic activity in order for the fundamental freedom to apply. In doing so, the Court unequivocally states that simply because a sport governing body labels its athlete an amateur, it does not mean that they are automatically disengaged from economic activity, and economic activities in the context of free movement of services should not be interpreted restrictively.[6] Therefore, the Court in the Deliège case focused on the judoka’s sponsorships deals and grants to conclude that she was engaged in economic activities.[7] AG Tanchev, in examining the Deliège case’s relevance, explains that this demonstrates EU law’s flexibility in finding a link between sporting and economic activities, and that even if the DLV’s rules only have an ‘indirect impact’ on Mr. Biffi’s economic activities, it should fall within the scope of the freedom of establishment.[8]

4.2.Restriction on the Freedom of Establishment and Justifications

The opinion then goes on to find that there has been a restriction of Mr. Biffi’s freedom of establishment because the DLV rule puts Mr. Biffi ‘at a disadvantage when compared with German nationals engaged in the provision of athletic training services’ because he is unable ‘to make reference to his achievements in national sporting championships in order to attract business.’ Furthermore, he states that consumers are ‘more likely to be drawn to an athletics coach advertising on-going excellence … in the national athletics championships.’[9] Given that the DLV rule is directly discriminatory, EU law only allows justification under the express derogations enshrined in the Treaty on the Functioning of the European Union (TFEU). The DLV would have had a larger window to defend their rules if they were indirectly discriminatory since the CJEU accepts both express derogations and justifications which have been developed by its own case law.

AG Tanchev readily finds that the DLV’s rules fall under the public policy derogation by aiming to ensure that the winner of the national title has a ‘sufficiently strong link’ with the country organising the championship and to ensure that the national selection of athletes for international competitions is not disrupted. It could be argued that these aims have been too easily advanced as public policy objectives. The CJEU has never accepted the former as a derogation or a justification, and concerning the latter, the CJEU has accepted objectives which ensure national representation in international competitions only as justifications. Since justifications developed by the CJEU generally are not applicable to cases of direct discrimination, such as the present case, it can be said that the opinion perhaps too quickly embraces these pursued aims as public policy objectives. This being said, sport already enjoyed a special treatment in the past as the CJEU has been open to consider justifications for directly discriminatory measures in the Bosman case.

4.3.Is the DLV’s measure proportionate?

Assuming that these aims are accepted as express derogations, the DLV measures must then pass proportionality requirements which in EU law require a measure to be suitable for the pursued aim and necessary to achieve those aims. In the sporting context, the CJEU has explained that in order for a sporting rule to be proportionate it must be limited to its proper objective and it must be inherent to the organization of the sport event.[10] AG Tanchev affirms that the measure is disproportionate because the rule disallows Mr. Biffi from competing for the national title and precludes classification in such a competition when for many years he had been allowed to compete and be classified as any other German athlete.[11] Furthermore, given he had this pre-existing right, the DLV’s failure to take any transitional measures or give sufficient notice of this change violates the legitimate expectations of Mr. Biffi who exercised his free movement in reliance of this established regime and infringes the general principle of acquired rights.[12] Thus, it can be inferred that in AG Tanchev’s view, the measure could have been proportionate had there been sufficient transitional measures in place. Such a broad interpretation of proportionality by including the non-national's right to compete for the national title, would greatly restrict the options of a sport governing body wanting to change a rule that could negatively affect the participation of non-nationals in their national competitions.

If this broad approach is not accepted, AG Tanchev contends the measure is still disproportionate since the DLV’s rules potentially exclude non-national participants from competing at all in the national championships. Such a measure could only be legitimate in ‘unusual circumstances.’ In this vein, the opinion suggests less restrictive rules which instead limit the number of non-classified athletes.[13]

Other alternative models have been suggested which are much more likely to pass the proportionality test. One commentator has suggested that non-nationals should be allowed to compete in national championships while perhaps only restricting their ability to actually win the title.[14] If applied to this case, this model would allow Mr. Biffi to participate with classification in the national championships, but if he (or other non-national) were to take the first place, the national title would be given to the highest classified German athlete in the competition. Another model put forward in a recent study suggests that a non-national can only compete in the national championship after having been resident or being member of a local club for a certain period of time. All of these suggestions show that there are a multitude of less restrictive ways to protect the organisation of national championships and the selection process of national athletes for international competitions. An outright ban on participation or only allowing participation outside of classification is remarkably restrictive and has very little chance of passing the necessity requirements under proportionality.

Overall, the argument that this case should be analysed from the freedom of establishment perspective is rather convincing because the economic dimension is clearly present. However, there is still a possibility that the CJEU will follow the line of arguments brought by the applicants based on EU citizenship rights addressed at the end of AG Tanchev’s opinion.

4.4.EU Citizenship Rights

AG Tanchev begins by explaining that even if non-discrimination on the basis of nationality deriving from EU citizenship are applied, the result of the case should be the same because the stated aims of the DLV simply do not meet the proportionality requirements.[15]  However, the opinion goes on to firmly oppose the application of EU citizenship rights in this context.

In its submissions, the Commission had strongly endorsed a view that access to leisure activities should always fall within the scope of EU citizenship rights. AG Tanchev disagrees with such a wide-ranging interpretation because it would be a huge ‘constitutional step’ to give Article 21 TFEU horizontal direct effect, meaning a private party could invoke this provision in a national court against another private party. He maintains that this provision is meant to only have vertical direct effect, where a private party may invoke this provision in a national court against the state. He explains that extending horizontal direct effect to this rather open-ended provision would have a capricious effect that would damage legal certainty because Article 21 TFEU ‘comes into play in the broad and unpredictable range of circumstances’ where applicants are ‘unable to show a link between what is in issue and economic activities’ or ‘fall outside of EU legislation concerning freedom of movement.’[16] On the other hand, one could argue the very purpose of this Article is to provide EU citizens with other means to dispute measures which harm their free movement, and such a restricted interpretation would damage l’effet utile of this provision.   

While it is probably the case that Mr. Biffi’s circumstances fall within the scope of his free movement rights, imagine if he did not have any economic interest, and instead of a coach and personal trainer, he was an accountant or car mechanic. If AG Tanchev’s approach were to be taken in such a case, Mr. Biffi would have absolutely no recourse under EU law to challenge such a discriminatory rule. If Article 18 and 21 TFEU were to be interpreted so restrictively, private monopolistic actors who exercise powers that resemble those of a state (such as many sport governing bodies) could make the exercise of the European citizenship less attractive by limiting the participation of non-nationals in certain leisure activities. The Commission is right in taking a broad approach on this issue, although in the end it found the DLV’s rule to be proportionate, especially since Article 18 and 21 TFEU makes no express reservations against the applicability of these provisions on private parties.[17] A wide interpretation would completely fit the ‘conditional autonomy’ model in which sport rules fall within the scope of EU law, and it is for the sport governing bodies to explain how and why the rule is necessary or ‘inherent’ to the conduct of sports.

5.     Conclusion

If the CJEU finds this case to fall under the scope of the freedom of establishment, it is likely the DLV’s rules will fail to be justified or crumble under the proportionality requirements. Likewise, the outcome is likely to be the same in the improbable case that EU citizenship rights are applied. However, it truly would be a ‘constitutional step’, as AG Tanchev asserted, by greatly widening the possibility of using EU citizenship rights to challenge nationality discrimination in even amateur and leisure sport. Moreover, solidifying horizontal direct effect of the EU citizenship rights would have an impact way beyond sport related cases.

Regardless, even if Mr. Biffi’s case is examined from the freedom of establishment, it will be a momentous occasion for the CJEU to further elucidate the boundaries of the application of EU law to sport. In this respect, AG Tanchev’s opinion provides an excellent analysis of the legal issues arising from the free movement perspective and picks up on the most evident detail that all the parties in the case seemed to have glanced over: Mr. Biffi has an economic interest which is tied to his sporting activities. In the long run, the application of EU citizenship rights to sports seems inevitable, but TopFit e.V. Daniele Biffi most likely does not provide the CJEU with a golden opportunity to express itself on this matter.

[1] T.M.C. Asser Institute Report, ‘Study on the Equal Treatment of Non-Nationals in Individual Sports Competitions’ (2010).

[2] Case 36-74 B.N.O. Walrave and L.J.N. Koch v Association Union cycliste internationale, Koninklijke Nederlandsche Wielren Unie and Federación Española Ciclismo [1974] ECR 1974 –01405; Case C-415/93 Union royale belge des sociétés de football association ASBL v Jean-Marc Bosman, Royal club liégeois SA v Jean-Marc Bosman and others and Union des associations européennes de football (UEFA) v Jean-Marc Bosman [1995] ECR I-04921.

[3] Stephen Weatherill, Principles and Practice in EU Sports Law (1^st edn, Oxford University Press 2017) 71.

[4] Case C-22/18 TopFit e.V. Daniele Biffi v Deutscher Leichtathletikverband e.V. [2019] ECLI:EU:C:2019:181, Opinion of AG Tanchev, para 48.

[5] ibid para 55.

[6] Joined Cases C-51/96 and C-191/97 Christelle Deliège v Ligue francophone de judo et disciplines associées ASBL, Ligue belge de judo ASBL, Union européenne de judo [2000] ECR I-02549 para 46.

[7] ibid paras 51-53.

[8] TopFit, Opinion of AG Tanchev (n 4) para 62.

[9] ibid para 70.

[10] Walrave (n 2) para 9; Deliège (n 6) para 64.

[11] TopFit, Opinion of AG Tanchev (n 4) paras 80, 88.

[12] ibid para 83.

[13] ibid paras 92-93.

[14] Weatherill (n 3) 203.

[15] TopFit, Opinion of AG Tanchev (n 4) para 97.

[16] ibid para 103.

[17] ibid paras 37-40.