Following the action n°40 of the “Pierre de Coubertin” Action Plan accompanying the 2007 White Paper on Sport where is announced that the Commission would launch a study to analyze all aspects of the complex issue of access to individual competitions for non-nationals, the study has now been completed. The study was carried out by a consortium composed of T.M.C. ASSER Instituut, Edge Hill University and Leiden University. The results of this study do not constitute the Commission’s official position, the Commission considers these results as useful input for future discussions with governmental and non-governmental stakeholders.
Find some excerpt of this study below:
Non-discrimination is a general principle of EU law. One of the best known rules derived from this principle is the EU prohibition against nationality discrimination.
EU law currently grants freedom of movement rights of equal treatment to EU citizens but also to certain third country nationals such as non-EU family members of EU citizens and third country nationals who derive rights from international agreements between the EU and their non-EU member state. Equal treatment requires the abolition of both direct discrimination and rules which, whilst not framed in terms of nationality, in fact lead to unequal treatment.
Thus, nationality should not, as a matter of EU law, be a valid way to distinguish between domestic citizens and non-nationals.
Restrictions to freedom of movement are considered discriminatory where nationals and non-nationals are governed by identical rules but where these indirectly favour nationals over non-nationals.
The Court of Justice of the European Union has in its case law sought to strike a balance between protecting EU citizens’ rights to free movement and non-discrimination, and the specific characteristics of sport and the autonomy of sports governing bodies to organise sporting competitions. It has accepted that nationality rules in national team sports are matters of ‘purely sporting interest’ which have ‘nothing to do with economic activity’ and are therefore outside the scope of EU law.
An examination of the rules of specific sports organisations by country also demonstrates that a single sport can be subject to very different rules across the EU Member States. This suggests that some national rules are more restrictive than necessary.
‘Purely sporting’ rules are outside the scope of EU law. EU law does ‘not prevent the adoption of rules or of a practice excluding foreign players from participation in certain matches for reasons which are not of an economic nature, which relate to the particular nature and context of such matches and are thus of sporting interest only’. However, such rules must be ‘limited to their proper objective’.
It is clear that the principles of fairness and openness which are reinforced by Article 165 of the Lisbon Treaty have not yet been uniformly implemented by sports governing bodies within the European Union.
On the basis of the EU Treaty provisions on citizenship, non-discrimination on grounds of nationality and freedom of movement, the relevant secondary legislation and the case law of the Court of Justice of the EU in this respect, the following suggestions are made:
1. As far as access of foreign athletes to national competitions is concerned, it is recommended as a rule under EU law to encourage and allow the participation of foreign athletes (EU citizens and also third-country nationals to the extent that they may benefit from EU rights) as much as possible
2. As far as participation of foreign athletes in national championships is concerned, it is in general recommended under EU law that these athletes be allowed to compete in the national championship of a given sporting discipline, provided that they do not exert a direct and substantial influence on the outcome of the competition.
3. As far as the award of national titles is concerned, under EU law winning the national title may remain the exclusive prerogative of nationals of a given country.
4. As far as the award of medals in championships and the setting of national records is concerned, this is likely to be a matter of purely sporting interest which does not come under the scope of application of the EU Treaty.
5. The European Commission is invited to enter into a constructive dialogue with national federations who still apply unacceptable discriminatory measures on grounds of nationality, so as to have these measures removed. If necessary, the Commission may have to undertake enforcement action so as to preserve the equal treatment rights of athletes.sportetcitoyennete