The Deutscher Handballbund e.V. (the national handball federation in Germany) (DHB), which organises
league and cup matches at federal level, issued Mr Kolpak with a player's licence
marked with the letter A on the ground that he was a national
of a non-member country whose citizens do not benefit from the equal treatment
provisions under the EC Treaty or, in identical terms, under the Agreement on
the European Economic Area (EEA).
Under the federal rules governing competitive games drawn up by the DHB, teams
in the federal and regional leagues may, in league or cup matches, field
no more than two players whose licences are marked with the letter A.
Mr Kolpak requested that he be issued with a player's licence which did not
feature the specific reference to nationals of non-member countries, as he considered that
he was entitled to take part without any restriction whatsoever in competitions by
reason of the prohibition of discrimination set out in the Association Agreement between
the EC and Slovakia.
The Oberlandesgericht (Higher Regional Court) Hamm, before which the dispute was brought on
appeal from the court of first instance, stayed proceedings in order to ask
the Court of Justice, under the preliminary-reference procedure, whether the principle of non-discrimination
on grounds of nationality set out in the Association Agreement between the EC
and Slovakia, under which Slovak workers lawfully employed in the territory of a
Member State are entitled to the same treatment as nationals of that Member
State in regard to conditions of work, remuneration or dismissal, precludes a rule
drawn up by a sports federation under which clubs are, for certain matches,
authorised to field only a limited number of players from non-member countries that
are not part of the EEA.
In this regard, the Court first of all stated, on the basis of
its recent judgment in Pokrzeptowicz-Meyer concerning the interpretation of that same principle within
the context of the Association Agreement between the European Communities and Poland, 1 that
the provision of the Agreement laying down the principle of non-discrimination on grounds
of nationality is directly applicable. Slovak nationals are thus entitled to invoke that
principle before the national courts of the host Member State.
The Court then went on to point out that, according to the principles
which it set out in Bosman, 2 the prohibition of discrimination laid down in
the provisions of the EC Treaty dealing with the free movement of workers
applies not only to measures of public authorities but also to rules drawn
up by sporting associations which determine the conditions under which professional sportsmen can
engage in gainful employment. In this connection the Court stated, still on the
basis of its judgment in Pokrzeptowicz-Meyer, that, although the relevant provision of the
Agreement does not set out a principle of free movement for Slovak workers,
the principle of non-discrimination laid down in the Agreement also applies to a
rule drawn up by a sports federation such as the DHB.
Finally, the Court defined the scope of the principle of non-discrimination by pointing
out that the prohibition of all discrimination on grounds of nationality applies only
to Slovak workers who are already lawfully employed in the territory of a
Member State and solely with regard to conditions of work, remuneration or dismissal.
That scope does not extend to national rules dealing with access to the
labour market.
The Court found in this regard that Mr Kolpak is lawfully employed under a
contract of employment, that he holds a valid residence permit and that, according
to national law, he does not require a work permit in order to
carry out his profession. The Court also pointed out that, according to its
judgment in Bosman, a rule which limits the number of professional players who
may participate in certain matches does not concern the employment of professional players,
on which there is no restriction, but the possibility for their clubs to
field them in official matches, and that participation in such matches is the
essential purpose of those players' activity. Moreover, such a rule is discriminatory and
cannot be justified on sports-related grounds linked to the training of young players
who are nationals of the Member State concerned.
From this the Court concluded that a rule such as that drawn up
by the DHB relates to working conditions and that a limited opportunity for
Slovak players, in comparison with players who are nationals of the EEA Member
States, to take part in certain matches involves discrimination prohibited by the Association
Agreement.
Such discrimination cannot be justified on sporting grounds (this might, in contrast, be
the case with regard to matches between national teams excluding foreign players for
exclusively sports-related reasons).
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Available in: Danish, Dutch, English, French, German, Italian and Spanish. For the full text of the judgment, please consult our Internet home page www.curia.eu.int from approximately 3 p.m. today. For additional information please contact Christopher Fretwell phone: (00352) 4303 3355, fax: (00352) 4303 2731 Images of the judgment being delivered are available on "Europe by Satellite", European Commission, Directorate-General for Press and Communications, L-2920 Luxembourg, phone: (00352) 4301 35177, fax: (00352) 4301 35249, or B-1049 Brussels, phone: (0032) 2-2 96 41 06, fax: (0032) 2-2 96 59 56 or (0032) 2-2 30 12 80 |