And Others V. Jean-Marc Bosman (Case C-415/93)
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Union Royale Belge des Societes de Football Association (Asbl) and Others v. Jean-Marc Bosman (Case C-415/93) Before the Court of Justice of the European Communities ECJ (Presiding, RodrÍguez Iglesias, P.; Kakouris, Edward and Hirsch, PP.C.; Mancini ( Rapporteur); Moitinho de Almeida, Kapteyn, Gulmann, Murray, Jann and Ragnemalm JJ.) Herr Carl Otto Lenz, Advocate General. 15 December 1995 Reference from Belgium by the Cour d'Appel, Liège under Article 177 EEC. Provisions considered: E.C. 48 ECJ Rules of procedure (Art. 60) Administrative law. Judgments. Effect. The temporal effect of a judgment may be limited in exceptional circumstances in application of the general principle of legal certainty. Overriding considerations of legal certainty militate against calling in question specific features of the rules laid down by sporting associations for transfers of players between clubs. There are no grounds for a temporal limitation in the cases of nationality clauses. [139]- [146]. European Court procedure. Measures of enquiry. An application for a measure of enquiry made after the close of the oral procedure can be admitted only if it relates to facts having a decisive influence which the party concerned could not have put forward beforehand. [53] Case 77/70, Prelle v. Commission [1971] E.C.R. 561, followed. European Court. Reference under Article 177. Where the issues in the main proceedings are not hypothetical and the national *646 court has provided a clear statement of the surounding facts, the rules in question and the grounds showing that a decision on the questions referred is necessary to enable it to give judgment, it is not for the Court of Justice to question the national court's assessment. [62]-[65] Freedom of movement of workers. Sport. Article 48 E.C. applies to rules laid down by sporting associations which determine the terms on which professional sportsmen can engage in gainful employment. [87] Freedom of movement of workers. Sport. Transfer fees. Sporting association rules which provide that a professional sportsman may not pursue his activity with a new club established in another Member State, even after expiry of the contract of employment, unless his former club has been paid a transfer fee constitute an obstacle to freedom of movement of workers. Such rules are not prohibited if they pursue a legitimate aim compatible with the Treaty and justified by pressing reasons of public interest. The application of such rules must still be proportionate. [92]-[104] Free movement of workers. Balance of interests. Proportionality. In view of the considerable social importance of sporting activities in the Community, the aims of maintaining a balance between clubs by preserving a certain degree of equality and uncertainty as to results and of encouraging the recruitment and training of young players must be accepted as legitimate. However the transfer of rules in question are not proportionate. [105]-[114] Free movement of workers. Discrimination. Nationality. Sport. Clauses contained in the regulations of sporting associations which restrict the right of nationals of other Member States to take part, as professional players, in sporting events are prohibited by Article 48. [116]-[137] Administrative law. Commission. Powers. Save where the power to do so is expressly conferred on it, the Commission may not give guarantees concerning the compatibility of specific practices with the Treaty. Nor does it have in any circumstances the power to authorise practices which are contrary to the Treaty. [136] The Respondent, a Belgian national, had brought proceedings against his former club, the Belgian national professional football association, and the European confederation of national professional football associations after he was prevented from taking up a contract *647 with a French football club. The former club, fearing that a compensation fee in respect of the Respondent's training would not be paid by the new club, had decided not to ask the national association to issue a transfer certificate, as required, in ultimo, by the rules of the European confederation. These rules regulated the transfer of players between clubs for a fee even after expiry of a contract and contained nationality clauses limiting the extent to which foreign players could be recruited or fielded by a club in a match. The action was held admissible at first instance. The club, association and confederation appealed to the Cour d'Appel, Liège, which asked the Court of Justice to rule on whether the transfer rules and the nationality clauses were prohibited by Articles 48, 85 and 86 E.C. Held: (1) Article 48 precluded both the transfer rules and the nationality clauses, (2) the temporal effect of the ruling should be limited to those claims made at the date of the judgment save in relation to the nationality clauses. Representation G. Vandersanden and J. P. Hordies, of the Brussels Bar, and R. Rasir and F. MoÏses, of the Liège Bar, for Union Royale Belge des Sociétés de Football Association (ASBL). I. S. Forrester Q.C., for Union Associations Européennes de Football (UEFA). L. Misson, J. Dupont, M. Lucas and M. Franchimont, of the Liège Bar, for Mr Bosman. H. Duchène, Foreign Affairs Secretary in the Legal Directorate of the Ministry of Foreign Affairs, and C. de Salins, Assistant Director in the same directorate, for the French Government. Professor L. Ferrari Bravo, Head of the Legal Service in the Ministry of Foreign Affairs, assisted by D. Del Gaizo, Avvocato dello Stato, for the Italian Government. F. E. González DÍaz, of the Legal Service of the E.C. Commission, and G. de Bergues, on secondment to the Legal Service, and Th. Margellos, of the Athens Bar, for the E.C. Commission. The following cases were referred to in the judgment: 1. Prelle v. E.C. Commission (77/70), 16 June 1971: [1971] E.C.R. 561. 2. Aprile v. Amministrazione delle Finanze dello Stato (C-125/94), 5 October 1995: not yet reported. 3. Meilicke v. ADV/ORGA FA Meyer AG (C-83/91), 16 July 1992: [1992] I E.C.R. 4871. 4. Furlanis v. Anas (C-143/94), 26 October 1995: not yet reported. 5. Walrave v. Association Union Cycliste Internationale (36/74), 12 December 1974: [1974] E.C.R. 1405, [1975] 1 C.M.L.R. 320. 6. Dona v. Mantero (13/76), 14 July 1976: [1976] E.C.R. 1333, [1976] 2 C.M.L.R. 578. 7. Administration des Douanes et Droits Indirects v. Legros (C-163/90), 16 July 1992: [1992] I E.C.R. 4625 *648 . 8. R. v. Saunders (175/78), 28 March 1979: [1979] E.C.R. 1129, [1979] 2 C.M.L.R. 216. 9. Moser v. Land Baden-Württemberg (180/83), 28 June 1984: [1984] E.C.R. 2539, [1984] 3 C.M.L.R. 720. 10. Steen v. Deutsche Bundespost (C-332/90), 16 June 1994: [1992] I E.C.R. 341, [1992] 2 C.M.L.R. 406. 11. Staunton v. INASTI (Institute National d'Assurance Sociales pour Travailleurs Independants) (143/87), 7 July 1988: [1988] E.C.R. 3877, [1989] 3 C.M.L.R. 761. 12. R. v. Immigration Appeal Tribunal and Singh, Ex parte Secretary of State for the Home Department (C-370/90), 7 July 1992: [1992] I E.C.R. 4265. 13. Roux v. Belgium (C-363, 89), 5 February 1991: [1991] I E.C.R. 273, [1993] 1 C.M.L.R. 3. 14. Masgio v. Bundesknappschaft (C-10/90), 7 March 1991: [1991] I E.C.R. 1119. 15. R. v. H.M. Treasury and Commissioners of Inland Revenue, Ex parte Daily Mail and General Trust Plc (81/87), 27 September 1988: [1988] E.C.R. 5483. 16. Keck and Mithouard (C267-268/91), 24 November 1993: [1993] I E.C.R. 6097, [1995] 1 C.M.L.R. 101. 17. Alpine Investments BV v. Minister Van Financiën (C-384/93), 10 May 1995: [1995] I E.C.R. 1141. 18. Gebhard and the Consiglio d'Ell 'Ordine degli Avvocatie E Procuratori di Milano (C-55/94), 30 November 1995: not yet reported. 19. Union National des Entraîneurs et Cadres Techniques Professionnels du Football (222/86), 15 October 1987: [1987] E.C.R. 4097, [1989] 1 C.M.L.R. 901. 20. Amministrazione delle Finanze dello Stato v. Essevi SpA and Salengo (142/80), 27 May 1981: [1981] E.C.R. 1413. 21. Blaizot v. University of Liege and Others (24/86), 2 February 1988: [1988] E.C.R. 379, [1989] 1 C.M.L.R. 57. The following further cases were referred to by the Advocate General: 22. Eurico Italia Srl v. Ente Nazionale Risi (C332-333 & 335/92), 3 March 1994: [1994] I E.C.R. 711, [1994] 2 C.M.L.R. 580. 23. Pigs Marketing Board v. Redmond (83/78), 29 November 1978: [1978] E.C.R. 2347, [1979] 1 C.M.L.R. 177. 24. Gmuszynska-Bscher v. Oberfinanzdirektion Köln (C-231/89), 8 November 1990: [1990] I E.C.R. 4003. 25. Corsica Ferries Italia Srl v. Corpo del Piloti del Porto di Genova (C-18/93), 17 May 1994: [1994] I E.C.R. 1783. 26. Union Laitiere Normande v. French Farmers Ltd (244/78), 12 July 1979: [1979] E.C.R. 2663, [1980] 1 C.M.L.R. 314 *649 . 27. Irish Creamery Milk Suppliers Association v. Ireland (36 & 71/80), 10 March 1981: [1981] E.C.R. 735. 28. Foglia v. Novello (244/80) [1981] E.C.R. 3045, [1982] 1 C.M.L.R. 585. 29. Bendetti v. Munari F.Lli SAS (52/76), 3 February 1977: [1977] E.C.R. 163. 30. Telemarsicabruzzo v. Circostel, Ministero delle Poste E Telecomunicazioni E Ministero della Difesa (C 320-322/90), 26 January 1993: [1993] I E.C.R.