Comment on the Spanish Case (Commission Press Release IP/04/1222)
It appears from Press Release IP/04/1222 that the Commission is concerned that a worker’s right to be joined by their family in the host country, and the integration of that family into their new surroundings, may be undermined by rules such as those adopted by the Spanish Football Federation. These rules prohibit the issuing of amateur licences to non Spanish nationals. In Walrave (1974), Dona (1976) and Bosman (1995) the European Court of Justice found that Article 39 (free movement of workers) applies to sport in so far as it constitutes an economic activity. Therefore, the fact that the sport is ‘amateur’ is inconsequential if it involves a significant economic component. The rights of free movement would then be extended to the worker.
However, the Commission’s concern appears to relate to the social advantages enjoyed by the worker’s family. Although the Treaty is silent on this, the general principle of non discrimination is contained within Article 12 and secondary legislation does seek to ensure that social advantages conferred on the nationals of the host state are extended equally to all EU nationals legally resident within that country. In this connection, member states are under an obligation to facilitate the entry of the dependent relatives of the worker. As the rules adopted by the Spanish Football Federation are clearly discriminatory, the issue therefore rests on whether the right to take part in amateur sport is considered a social advantage (benefit) and to whom this benefit extends. In previous case law the ECJ has tended to adopt a wide interpretation of what constitutes a social advantage by consistently arguing that social advantages should be interpreted as meaning all advantages which, whether or not linked to a contract of employment, are generally granted to national workers because of their objective status as workers or by virtue of the mere fact of their residence on the national territory, and whose extension to workers who are nationals of other member states therefore seems likely to facilitate the mobility of such workers within the EU. Furthermore, the Court has held that access to leisure activities is a corollary to freedom of movement.
It is not therefore unreasonable to suggest that a prohibition on undertaking everyday social activities, such as playing amateur football, is an impediment to free movement. Such a restriction not only runs contrary to the spirit of Articles 12, 39 and secondary legislation, it also contradicts the EU’s claim to be fostering a ‘people’s Europe’ underpinned by European citizenship. Furthermore, as the 2000 Nice European Council Declaration on Sport commented, ‘sport is a human activity resting on fundamental social, educational and cultural values. It is a factor making for integration, involvement in social life, tolerance, acceptance of differences and playing by the rules…. sporting activity should be accessible to every man and woman, with due regard for individual aspirations and abilities, throughout the whole gamut of organised or individual competitive or recreational sports’. In addition, the new sport provisions contained within the Constitutional Treaty permit the EU to adopt supporting measures which develop ‘the European dimension in sport’. Given the legal position contained within primary and secondary EU law and given the above statements of political will, it would be anomalous for nationality restrictions in amateur sport to persist.
Dr Richard Parrish
Department of Law
Edge Hill College
Author of: Sports Law and Policy in the European Union, Manchester University Press (2003).