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.
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.
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.
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.
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
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
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
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
Very early on in the opinion, AG Tanchev unambiguously
expresses his preference for analysing the present case through a free movement
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.
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
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.
Therefore, the Court in the Deliège case focused on the
judoka’s sponsorships deals and grants to conclude that she was engaged in
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.
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
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
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.
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.
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
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.
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.
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.
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. 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.’
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.
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.
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.
 T.M.C. Asser Institute Report,
‘Study on the Equal Treatment
of Non-Nationals in Individual Sports Competitions’ (2010).
 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  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  ECR I-04921.
 Stephen Weatherill, Principles and Practice in EU
Sports Law (1st edn, Oxford University Press 2017) 71.
 Case C-22/18 TopFit e.V.
Daniele Biffi v Deutscher Leichtathletikverband e.V. 
ECLI:EU:C:2019:181, Opinion of AG Tanchev, para 48.
 ibid para 55.
 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  ECR I-02549 para 46.
 ibid paras 51-53.
 TopFit, Opinion of AG Tanchev (n 4)
 ibid para 70.
 Walrave (n
2) para 9; Deliège (n 6) para 64.
 TopFit, Opinion of AG Tanchev (n 4)
paras 80, 88.
 ibid para 83.
 Weatherill (n 3) 203.
 TopFit, Opinion of AG Tanchev (n 4)