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The First Step: Walrave and Koch

Walrave and Koch, a case decided in 1974, offered the Court of Justice its first opportunity to consider how, if at all, EU law interacts with the practices of sporting associations.[1]

The sport in question was esoteric: it was paced cycling. Teams in this sport are made up of a cyclist who is supported by, and rides in the lee of, a pacemaker on a motorcycle. The applicants, Walrave and Koch, were Dutch. They were pacemakers. They were professional. But the Union Cycliste Internationale (UCI), the sport’s governing body, decided that with effect from 1973 the pacemaker in the world championships must be of the same nationality as the cyclist. This damaged the professional opportunities available to the applicants and they challenged the rule change as a violation of EU law. They brought an action before a court in Utrecht, relying on the directly effective vigour of EU law. At the time, the Treaty clearly prohibited any discrimination on the basis of nationality. This prohibition was then contained in Article 7 of the Treaty Establishing the European Economic Community (EEC). Its successor today is Article 18 TFEU, and it is in all material respects identical. So surely Walrave and Koch were obvious victims of unlawful discrimination on grounds of nationality?

The twist is that the relevant Treaty provision directed then, and still directs today, that the prohibition of discrimination on grounds of nationality applies only within the scope of application of the Treaties. This is no more than an explicit and specific statement of the general rule in EU law that its bite is felt only within areas in which the EU enjoys competences and powers conferred by its Treaties. This is the principle of conferral, found today in Article 5 TEU, carefully examined in Chapter 3.2. So the question that was most enticing in Walrave and Koch was how the Court would deal with the confinement of EU law to the scope of application of the Treaties, which at the time did not mention sport at all. This was the question of principle which the Court was asked to address in a preliminary reference made by the court in Utrecht before which Walrave and Koch had raised their objection to the practices of the UCI. In reflecting on the practical significance of the ruling which the court was asked to give, one might be forgiven for thinking that the world championships for paced cycling are of only niche interest, but it is plain that the issue of whether a sports governing body may confine participation in championship events to teams composed of participants possessing the same nationality has immense consequences. If it may not, it is the end of football’s World Cup, among other competitions enjoying a considerably higher profile than paced cycling.

The astute reader will immediately recognize that the Court did not reach such a cataclysmic conclusion. The football World Cup still exists, more than four decades later. The real interest in the ruling is how the Court negotiated a route between, on the one hand, the application of the foundational principle of EU law that condemns discrimination on grounds of nationality and, on the other, the nationality-based links that characterize the very nature of top-level international representative team sport. And, to look beyond this particular context, the structure of the arguments pressed on the Court in Walrave and Koch in 1974 still resonates today—sports governing bodies typically seek to find methods to exclude or, if not, to limit the incursion of EU law on to their territory. The extent to which they are successful dictates just how far EU law is willing to accept that sport is ‘special’.

In Walrave and Koch the Court rejected the claim that because sport went unmentioned in the EU’s founding Treaties it is simply none of the EU’s business. The scope of EU law, and the practical significance of the principle of conferral, is broad because it is driven by the functional concern to achieve an economically integrated market for the EU. The objective to break down obstacles to inter-state trade ‘in order to merge the national markets into a single market bringing about conditions as close as possible to those of a genuine internal market’2 means that any economic activity, irrespective of its precise form, which is conducted in such a way as to defeat that purpose is caught by EU law. As the applicants pressed on the Court: ‘By reason of the importance, in this sphere of sport, of a world title, this clause seriously limits their professional activity’.[2] [3] The UCI’s rules discriminated on the grounds of nationality in such a way as to limit opportunities and thereby to cause economic harm to providers of pacing services.

This reasoning is convincing and it persuaded the Court. In a formula which stands as the first statement of how and why sport is subjected to EU law it declared that:

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.4

What is today Union law rather than Community law applies to sport only in so far as it constitutes an economic activity—but sport is commonly and easily found to constitute an economic activity. The Court’s formula is apt to exclude purely recreational activities from the scope of application of EU law, but according to this formula professional sport falls comfortably within the scope of EU law. It is an economic activity, just as making sausages and cars and selling financial services count as economic activities. And it is therefore subject to the rule against discrimination on grounds of nationality.

ibid judgment, para 4.

However, sport, though an economic activity, is not only an economic activity. It has a social and cultural resonance that transcends sausage- or car-making or the provision of financial services. Of more specific relevance to the governance of sport and so to its legal assessment, were producers of sausages or of cars or sellers of financial services to get together and determine the conditions that should regulate their activities on a global scale they would expect to find themselves swiftly condemned for severely anti-competitive activities. Sport is different. The very nature of sport is that it is subject to common rules which apply globally. Sport is special. And moreover sport has rules which reflect a character that is not to be found in normal industries. One such rule concerns the criteria governing the selection of national representative teams, which simply does not arise in the car or the sausage or the financial services sector. Sport is special.

In Walrave and Koch the Court captured this notion in enigmatic fashion. It stated that EU law’s prohibition of nationality-based discrimination ‘does not affect the composition of sport teams, in particular national teams, the formation of which is a question of purely sporting interest and as such has nothing to do with economic activity’.5 The Court’s formula is as fascinating as it is evasive. It is evidently a protection of sorts for certain rules, but it is ill-defined. The next paragraph in the ruling reveals the Court’s anxiety lest this concession to sporting autonomy be pushed too far. It added that the ‘restriction on the scope of the provisions in question must however remain limited to its proper objective’.[4] [5]

The Court’s formula is readily interpreted as a push to the national court to find that rules affecting ‘the composition of sport teams, in particular national teams’ do not offend against EU law. That, indeed, is how the ruling was interpreted. No one sought to relieve West Germany of the football World Cup they had lifted six months earlier on the basis that they had violated EU law by refusing to pick any Belgians or Danes. The jurisdictional point is that where economic activity is not engaged, then EU law is not engaged either. This makes perfect constitutional sense in the abstract. It is to apply the principle of conferral, today found in Article 5 TEU. The matter is outside the conferred competences to which the EU is able to lay claim where there is nothing associated with economic activity at stake. The awkward twist, however, is that it is plainly absurd to claim, as the Court in Walrave and Koch did claim, that the rule involves ‘a question of purely sporting interest and as such has nothing to do with economic activity’.[6] International football is big business. Players enhance their profile and popularity, and therefore their earning potential, as a result of their exposure as international footballers. Restricting selection for national teams has direct and important economic consequences. A footballer able to play for, say, Spain or Germany in the World Cup will obtain clear and large advantages from the consequent worldwide exposure, of interest to employers and to sponsors, when compared with one eligible only to play for Andorra or Malta.8 And Walrave and Koch themselves would obviously have suffered financially by being restricted to pacing only Dutch cyclists in world championship events. This, in fact, was precisely why they had brought the matter before a court.9

The Court’s ruling was important in the general sweep of EU law for it emphasized the Treaty’s broad material scope, which is triggered by identification of economic activity.10 But, as far as the particular case of sport was concerned, it was on the wrong track in groping for rules that involve ‘purely sporting interest’, with no association to economic activity. It is, in truth, hard to imagine such a rule, given the ubiquitous character of economic activity. Rules governing selection for national teams are sporting rules but at the same time they are also rules with an association to economic activity. What is really at stake is not a group of sporting rules and a separate group of economic rules, but rather a group of sporting rules which carry economic implications and which therefore fall for assessment, but not necessarily condemnation, under EU trade law. This is the core of the thesis that EU law and ‘internal’ sports law, the lex sportiva, cannot be kept separate. And it is what the Court missed, or preferred to avoid, in Walrave and Koch.

Unfortunately EU sports law was sent by Walrave and Koch in search of a red herring: a question of purely sporting interest which as such has nothing to do with economic activity. Most—almost all—sporting practices have something to do with economic activity. Few—hardly any—are purely sporting. Walrave and Koch is flawed in assuming a separation between sport and the economy which is at best fiendishly hard to make and at worst implausible. Better to treat sporting rules as economic in effect—but to find some means within EU law to protect those that truly define the nature of the activity. Eventually the Court would get to this solution, which entails a case-by-case inspection of the compatibility of sporting practices with EU law, but it would take it over thirty years: this is elucidated in Chapter 5.n

The Court in Walrave and Koch felt able to deal relatively easily with the other devices deployed which were designed to protect sporting autonomy. It held that the relevant Treaty provisions were not confined to restrictions which have their origin in acts of a public authority. Prohibition of discrimination ‘extends likewise to rules of any other nature aimed at regulating in a collective manner gainful employment and the provision of services’^2 On this point Walrave and Koch set the tone and is important in the general development of EU law governing the personal scope of the economic freedoms guaranteed by the Treaty, not simply in the field of co. uk/sport/football/inter national/gar eth-bale-would-have-made-millions-if-real-madr id-star-had- picked-england-over-wales-says-agent-10492331.html> accessed 29 November 2016. Bale is Welsh but, thanks to an English grandmother, could have chosen to play football for England instead.

  • 9 The Opinion of Warner AG in the case makes this clear.
  • 10 This was stressed at the time by G Ubertazzi, ‘Le domaine du droit communautaire. A propos de l’arret Walrave, Union cycliste international’ (1976) RTDE 635.
  • 11 Case C-519/04P Meca-Medina andMajcen v Commission [2006] ECR I-6991. Also on this trajectory, see R Parrish, ‘Case 36/74 Walrave and Koch in J Anderson (ed), Leading Cases in Sports Law (TMC Asser 2013) ch 3.
  • 12 Walrave and Koch (n 1) para 17.

sports law.[7] [8] [9] [10] [11] [12] The Court asserted that this interpretation, apt to cover private parties, was necessary, for otherwise, were EU law confined to public bodies, ‘the abolition of barriers of national origin could be neutralized by obstacles resulting from the exercise of their legal autonomy by associations or organizations which do not come under public law'd4 and it added that given that ‘working conditions in the various Member States are governed sometimes by means of provisions laid down by law or regulation and sometimes by agreements and other acts concluded or adopted by private persons, to limit the prohibitions in question to acts of a public authority would risk creating inequality in their application’.^ This reasoning has been used by the Court in cases remote from sport to subject to control the practices of bodies such as trade unions^ and bodies that set rules for professions!7 which tend to obstruct the free movement of workers and services.

Moreover, the observation that the activities of a sporting federation are typically worldwide did not deter the Court from asserting subjection to EU law. It found that the rule on non-discrimination applies to all relationships where ‘by reason either of the place where they are entered into or of the place where they take effect, [they] can be located within the territory of the Community’.!8 This is immensely important. The Court here asserts that the intersection of a regional system of law, that of the EU, with a global system, the lex sportiva, does not mean that the geographically less extensive regime must retreat. This is perfectly logical from the point of view of EU law. Were it otherwise, there would be a fragmentation of law within the EU: some industries would be subject to EU law, others would escape it purely because of their capacity to claim a global reach. In fact, this would be counter-intuitive, for the more powerful actor would be subject to reduced legal supervision when compared with the less powerful. However, seen not from the perspective of EU law but rather from that of sports governing bodies, this intrusion into the lex sportiva is exactly the source of pained frustration and friction. How—a sports body will ask—can we organize globally if we have to adjust locally?

This is the very heart of the intellectual case for inquiring into the worth of sporting autonomy. In Walrave and Koch the Court adopted a flawed analytical formula—the rule of purely sporting interest—from which, as explained later, it would eventually resile. But the wider framework within which it chose to operate has proved enduring. It refused to grant autonomy in principle from the reach of EU law, but in the interpretation and application of EU law it showed sensitivity to the special character and purpose of sport. So sporting bodies can rarely appeal to absolute autonomy from the application of EU law, but they have room to show that their subjection to EU law is on terms that reflect sport’s peculiarities. This forms the core of the interpretative or adjudicative strategy for securing sporting autonomy from the law. Nationality discrimination is for good reason outlawed across the wide sweep of economic activities within the EU, both because it operates to the detriment of creating an efficient structure for a unified EU market and because it deprives individuals of an important aspect of their right to equality. But sport is special. Nationality discrimination has a legitimate role to play. It defines the very character of international team competition.

Two years later, in 1976, the Court confirmed its approach in Dona v ManteroM This was a preliminary reference concerning rules of the Italian Football Federation which limited eligibility to players of Italian nationality. The Court simply repeated what it had stated in Walrave and Koch. EU law’s prohibitions may be disabled where exclusion is based on reasons which are not of an economic nature, which relate to the particular nature and context of such matches, and are of sporting interest only. This was no more satisfactory than the formula offered in Walrave and Koch two years earlier. But the ruling offered no amplification and the Court left the matter to be disposed of in detail by the referring Italian court.

Things then went very quiet. From the mid-1970s through to the 1990s EU sports law retreated into the background, a matter of niche interest without practical significance. Here and there a self-indulgent academic writer claimed to find intellectual intrigue in the potential collision of EU internal market law and the organization of sport70 But there was no practical bite.

  • [1] Case 36/74 Walrave and Koch v Union Cycliste International [1974] ECR 1405.
  • [2] Case 15/81 Gaston Schul [1982] ECR 1409, para 33; Case C-312/91 Metalsa [1993] ECR I-3751,para 15.
  • [3] Walrave and Koch (n 1) 1416.
  • [4] ibid para 8. 2 ibid para 9. 7 ibid para 8.
  • [5] 8 cf ‘Gareth Bale would have Made Millions if Real Madrid Star had Picked England over Wales,
  • [6] says agent Jonathan Barnett’ The Independent (London, 8 September 2015)
  • [7] See S Weatherill, The Internal Market as a Legal Concept (OUP 2017) ch 7.
  • [8] Walrave and Koch (n 1) para 18. 15 ibid para 19.
  • [9] 16 Case C-438/05 Viking Line [2007] ECR I-10779; Case C-341/05 Laval [2007] ECR I-11767.
  • [10] 17 Case C-309/99 JCJ Wouters, JW Savelbergh, Price Waterhouse Belastingadviseurs BV v Algemene
  • [11] Raad van de Nederlandse Orde van Advocaten [2002] ECR I-1577.
  • [12] Walrave and Koch (n 1) para 28.
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