Jyri Lehtonen and Another v. Federation Royale Belge des Societes de

Basket-Ball Asbl (Frbsb), (Ligue Belge-Belgische Liga Asbl intervening) (Case C-176/96)

Before the Court of Justice of the European

Communities (Sixth Chamber)

ECJ (6th Chamber)

(Presiding, Schintgen P.C.; Hirsch and Ragnemalm (Rapporteur) JJ.) Mr Siegbert

Alber, Advocate General.

13 April 2000

Reference for a preliminary ruling from Belgium by the Tribunal de Première Instance, Brussels.

Free movement of workers--sports--rules on international transfer deadlines of professional players aimed at maintaining fair competition between clubs-- whether rules fell within scope of Community law and in particular Article 48 E.C.--whether players were "workers"--rules contrary to free movement of workers--whether different deadlines depending on geographical zone were objectively justified. On 5 April 1996, after the Finnish championship had ended, Mr Lehtonen, a Finnish basketball player, signed an employment contract with the Belgian club Castors-Braine to play for the club until the end of the Belgian season. Mr Lehtonen was officially released from his club in Finland on 29 March 1996, and the agreement with Castors-Braine was registered the following day with the Fédération Royale Belge des Sociétés de Basket-ball ASBL (FRBSB). However, the rules of the International Basketball Federation (FIBA) on international transfers within the European zone provide that players may not normally transfer to a club in a country of which they are not nationals after 28 February of each year. On this basis, the FRBSB indicated that until it had authorised the transfer, the club might be penalised if it fielded Mr Lehtonen in forthcoming matches. Castors-Braine did so nonetheless in two games which it won, but the FRBSB awarded points to the other team as a penalty for breaching the FIBA rules. Mr Lehtonen and the club brought proceedings before the Tribunal de

Première Instance in Brussels, seeking to have the FRBSB's decisions lifted. The question arose of the compatibility of FIBA rules with Community law and the Tribunal referred a question of interpretation of Articles 6 and 48 of the E.C. Treaty (now, after amendment, Articles 12 E.C. and 39 E.C.) and Articles 85 and 86 of the E.C. Treaty (now *410 Articles 81 E.C. and 82 E.C.). The Court did not consider Articles 81 and 82 E.C. Held: Whether the international transfer rules fell within the scope of Community law (a) It was established case law that sport was subject to Community law in so far as it constituted an economic activity within the meaning of Article 2 E.C. This position was supported by Declaration 29 on sport annexed to the E.C. Treaty by the Treaty of Amsterdam. Rules excluding foreign players from certain matches were compatible with Community law provided that they were based on reasons which were not of an economic nature, relating to the particular nature and context of matches and thus of sporting interest only, and provided that they were exercised proportionately by reference to their objective and did not lead to the player's exclusion from the whole of a particular sporting activity. In addition, Community law applied to the action of private organisations regulating employment or the provision of services collectively. Consequently, Community law, and in particular Articles 12 E.C. and 39 E.C. applied to sporting activities and to rules laid down by sports associations such as those in the instant case. [32]-[36] Walrave and Roch v. Association Union Cycliste Internationale and Others (36/74): [1974] E.C.R. 1405; [1975] 1 C.M.L.R. 320; Union Royale Belge des Societes de Football Association Asbl and Others v. Bosman and Others (C-415/93): [1995] E.C.R. I-4921; [1996] 1 C.M.L.R. 645; and Dona v. Mantero (13/76): [1976] E.C.R. 1333; [1976] 2 C.M.L.R. 578, followed. (b) Article 39 E.C. had incorporated, in the field covered by the principle of freedom of movement of workers, the principle of prohibition of discrimination on the ground of nationality contained in Article 12 E.C. As the present case concerned an alleged "worker" and it fell within the scope of Article 39 E.C., it was not necessary to examine it under Article 12 E.C. [37]-[38] Merci Convenzionali Porto di Genova SpA v. Siderurgica Gabrielli SpA (C-179/90): [1991] E.C.R. I-5889; [1994] 4 C.M.L.R. 422, followed. As to the existence of an "economic activity" by a "worker" Both concepts of "economic activity" under Article 2 E.C. and of "worker" under Article 39 E.C. could not be interpreted restrictively. The concept of "worker" had to be defined by reference to objective criteria. It was established case law that paid employment constituted an economic activity within the meaning of Article 2 E.C., provided that the activities involved were effective and genuine and could not be regarded as marginal. In this regard, the essential feature of an *411

employment relationship was that, for a certain period of time, the employee would perform services for and under the direction of the employer in return for remuneration. Mr Lehtonen was a professional basketball player and had signed an employment contract with the Belgian club for remuneration. [41]-[46] Levin v. Staatssecretaris Van Justitie (53/81): [1982] E.C.R. 1035; [1982] 2 C.M.L.R. 454; Steymann v. Staatssecretaris Van Justitie (196/87): [1988] E.C.R. 6159; [1989] 1 C.M.L.R. 449; and Lawrie-Blum v. Land Baden Württemberg (66/85): [1986] E.C.R. 2121; [1987] 3 C.M.L.R. 389, followed. Whether the transfer rules infringed Article 39 E.C. The transfer rules were liable to prevent basketball players from seeking employment with other clubs. It was irrelevant, in this respect, that the rules did not relate to the employment contract as such; these rules restricted players' participation in matches, which was the essential purpose of their activity, and therefore restricted their chances of employment. [49]-[50] Bosman, applied. Whether there existed objective justifications to the restrictions to Article 39 E.C. (a) Rules setting transfer deadlines could be justified by the need to maintain a level playing field between clubs throughout the duration of the championship season with a view to protecting the comparability of results in order to ensure the proper functioning of the championship. [53]-[55] (b) Such rules may not go beyond what is necessary to achieve the objective in question. The transfer deadline for players within the European zone was much earlier than that applicable to players in other zones. Such a difference appeared to go beyond what was necessary and did not appear to be justified by objective reasons. It would be for the national court, in the light of the other factual elements in the file to ascertain whether such a difference was objectively justified by reasons in the interest of sport. [56]-[59] Bosman, followed. Representation L. Misson and B. Borbouse, of the Liège Bar, for Jyri Lehtonen and Castors Canada Dry Namur-Braine ASBL. J.-P. Lacomble and G. Tuts, of the Liège Bar, for the Fédération Royale Belge des Sociétés de Basket-ball ASBL (FRBSB). F. Tilkin, of the Liège Bar, for Ligue Belge-Belgische Liga ASBL. E. Röder, Ministerialrat in the Federal Ministry of Economic Affairs, and Sabine Maass, Regierungsrätin in that Ministry, acting as Agents, for the German Government. V. Kontolaimos, Deputy Legal Adviser in the State Legal Service, and P. Mylonopoulos, Deputy Legal Adviser in the Special Legal Service, European Law

Section, Ministry of Foreign Affairs, acting as Agents, for the Greek Government. *412 M. Perrin de Brichambaut, Director of Legal Affairs in the Ministry of Foreign Affairs, and A. de Bourgoing, Chargé de Mission in the Legal Department of that Ministry, acting as Agents, for the French Government. U. Leanza, Head of the Legal Service in the Ministry of Foreign Affairs, acting as Agent, assisted by D. Del Gaizo, Avvocato dello Stato, for the Italian Government. M. Potacs, of the Federal Chancellor's Office, acting as Agent, for the Austrian Government. M. Wolfcarius and F. E. González-Diaz, of its Legal Service, acting as Agents, for the E.C. Commission. Cases referred to in the judgment: 1. Fratelli Pardini SpA v. Ministero del Commercio Con l'estero and Another (338/85), 21 April 1988: [1988] E.C.R. 2041. 2. Society for the Protection of Unborn Children (Ireland) Ltd v. Grogan and Others (C-159/90), 4 October 1991: [1991] E.C.R. I-4685; [1991] 3 C.M.L.R. 849. 3. Telemarsicabruzzo SpA v. Circostel and Others (C 320-322/90), 26 January 1993: [1993] E.C.R. I-393. 4. Albany International BV v. Stichting Bedrijfs-Pensioenfonds Textielindustrie (C-67/96), 21 September 1999: [2000] 4 C.M.L.R. 446. 5. Brentjens' Handelsonderneming BV v. Stichting Bedrijfspensioenfonds voor de Handel In Bouwmaterialen (C 115-117/97), 21 September 1999: [2000] 4 C.M.L.R. 566. 6. Criminal Proceedings against Saddik (C-458/93), 23 March 1995: [1995] E.C.R. I-511; [1995] 3 C.M.L.R. 318. 7. Walrave and Koch v. Association Union Cycliste Internationale and Others (36/74), 12 December 1974: [1974] E.C.R. 1405; [1975] 1 C.M.L.R. 320. 8. Union Royale Belge des Societes de Football Association Asbl and Others v. Bosman and Others (C-415/93), 15 December 1995: [1995] E.C.R. I-4921; [1996] 1 C.M.L.R. 645. 9. Donà v. Mantero (13/76), 14 July 1976: [1976] E.C.R. 1333; [1976] 2 C.M.L.R. 578. 10. Merci Convenzionali Porto di Genova SpA v. Siderurgica Gabrielli SpA (C-179/90), 10 December 1991: [1991] E.C.R. I-5889; [1994] 4 C.M.L.R. 422. 11. Criminal Proceedings against Peralta (C-379/92), 14 July 1994: [1994] E.C.R. I-3453. 12. Kempf v. Staatssecretaris Van Justitie (139/85), 3 June 1986: [1986] E.C.R. 1741; [1987] 1 C.M.L.R. 764. 13. Alimenta SA v. Doux SA (C-332/88), 22 May 1990: [1990] E.C.R. I-2077. *413 14. Levin v. Staatssecretaris Van Justitie (53/81), 23 March 1982: [1982] E.C.R. 1035; [1982] 2 C.M.L.R. 454. 15. Steymann v. Staatssecretaris Van Justitie (196/87), 5 October 1988: [1988] E.C.R. 6159; [1989] 1 C.M.L.R. 449.

16. Lawrie-Blum v. Land Baden-Württemberg (66/85), 3 July 1986: [1986] E.C.R. 2121; [1987] 3 C.M.L.R. 389. Further cases referred to by the Attorney General: Before the European Courts: 17. Algemene Transport-en Expeditie Onderneming Van Gend en Loos NV v. Nederlandse Tariefcommissie (26/62), 5 February 1963: [1963] E.C.R. 1; [1963] C.M.L.R. 105. 18. Pigs Marketing Board (Northern Ireland) v. Redmond (83/78), 29 November 1978: [1978] E.C.R. 2347; [1979] 1 C.M.L.R. 177. 19. Meilicke v. ADV/ORGA F.A. Meyer AG (C-83/91), 16 July 1992: [1992] E.C.R. I-4871. 20. Criminal Proceedings against Keck and Mithouard (C 267 & 268/91), 24 November 1993: [1993] E.C.R. I-6097; [1995] 1 C.M.L.R. 101. 21. Alpine Investments BV v. Minister Van Financien (C-384/93), 10 May 1995: [1995] E.C.R. I-1141; [1995] 2 C.M.L.R. 209. 22. Procureur du Roi v. Dassonville (8/74), 11 July 1974: [1974] E.C.R. 837; [1974] 2 C.M.L.R. 436. 23. Verein gegen Unwesen In Handel und Gewerbe Köln eV v. Mars GmbH (C-470/93), 6 July 1995: [1995] E.C.R. I-1923; [1995] 3 C.M.L.R. 1. 24. Katsikas and Others v. Konstantinidis and Others (C 132, 138 & 139/91), 16 December 1992: [1992] E.C.R. I-6577; [1993] 1 C.M.L.R. 845. 25. Union Nationale des Entraineurs et Cadres Techniques Professionnels du Football (UNECTEF) v. Heylens and Others (222/86), 15 October 1987: [1987] E.C.R. 4097; [1989] 1 C.M.L.R. 901. 26. Höfner and Another v. Macrotron GmbH (C-41/90), 23 April 1991: [1991] E.C.R. I-1979; [1993] 4 C.M.L.R. 306. 27. Poucet v. Assurances Generales de France and Another (C 159 & 160/91), 17 February 1993: [1993] E.C.R. I-637. 28. Job Centre Coop. arl (C-55/96), 11 December 1997: [1997] E.C.R. I-7119; [1998] 4 C.M.L.R. 708. 29. Züchner v. Bayerische Vereinsbank AG (172/80), 14 July 1981: [1981] E.C.R. 2021; [1982] 1 C.M.L.R. 313. 30. Gottrup-Klim Grovvareforeninger and Others v. Dansk Landbrugs Grovvareselskab AMBA (C-250/92), 15 December 1994: [1994] E.C.R. I-5641; [1996] 4 C.M.L.R. 191. 31. Remia BV and Others v. E.C. Commission (42/84), 11 July 1985: [1985] E.C.R. 2545; [1987] 1 C.M.L.R. 1. *414 32. Hoffmann-la Roche & Co. AG v. E.C. Commission (85/76), 13 February 1979: [1979] E.C.R. 461; [1979] 3 C.M.L.R. 211. 33. Società Italiana Vetro SpA and Others v. E.C. Commission (T 68, 77 & 78/89), 10 March 1992: [1992] E.C.R. II-1403; [1992] 5 C.M.L.R. 302. 34. Gencor Ltd v. E.C. Commission (T-102/96), 25 March 1999: [1999] E.C.R. II-753; [1999] 4 C.M.L.R. 971. 35. Centro Servizi Spediporto Srl v. Spedizioni Marittima del Golfo Srl (C-96/94),

5 October 1995: [1995] E.C.R. I-2883; [1996] 4 C.M.L.R. 613.

Opinion of Mr Advocate General Alber

Introduction 1. In these proceedings for a preliminary ruling the Tribunal de Première Instance (Court of First Instance), Brussels, seeks to know whether certain transfer rules which apply to basketball players in Belgium are compatible with the rules on freedom of movement for workers and competition law. For the 1995/96 season, the season concerned in the main proceedings, there were three different transfer periods. Players could be transferred between Belgian clubs only before the start of the season, in the period from 15 April to 15 May 1995. Players from the European zone, on the other hand, could be transferred until 28 February 1996, and those from third countries until as late as 31 March 1996. 2. While Case C-415/93, Union Royale Belge des Societes de Football Association Asbl and Others v. Bosman and Others, [FN1] concerned the transfer fees which a club had to pay if it wished to engage a player from another club after the player's contract with that club had expired, and also the rules on foreigners under which football clubs could play only a limited number of foreign professionals--both rules were held by the Court of Justice, in its judgment of 15 December 1995, to be incompatible with Article 48 of the E.C. Treaty (now, after amendment, Article 39 E.C.)--, the present case concerns provisions which impose time limits on transfers of players between clubs, if the player concerned is to play for the new club during the current season. FN1 [1995] E.C.R. I-4921; [1996] 1 C.M.L.R. 645. 3. The applicant in the main proceedings, professional basketball player Mr Lehtonen, who is Finnish--and so comes from the European zone--, was not engaged until 30 March 1996, and the first two matches of his club and co-applicant Castors Canada Dry Namur-Braine Asbl (hereinafter "Castors Braine") in which he played or was on the team sheet were therefore declared forfeited, and other sanctions threatened. 4. The defendant in the main proceedings is the Belgian basketball federation (Fédération Royale Belge des Sociétés de Basket-ball Asbl, *415 hereinafter "the FRBSB")--which is responsible for organising basketball at amateur and professional level in Belgium--, supported as intervener by the Belgian basketball league (Ligue Basket Belgium Asbl, hereinafter "the Belgian League), which consisted at the time of 11 out of the 12 clubs. 5. Basketball is organised at international level by the International Basketball Federation (Fédération Internationale de Basket-ball, hereinafter "FIBA"), whose rules must be observed by the national federations.

Relevant provisions

6. Under Rule 1(b) of the FIBA Rules, the international transfer rules apply to all national federations equally. Under Rule 1(c) of the rules, the national federations are obliged, as regards national transfer rules, to be guided by the international rules and to establish their own rules accordingly. 7. For the Belgian federation, three different zones apply with respect to the transfer rules: the national zone, the "European" zone, and that of third countries. The European zone comprises the players and federations of the Member States of the European Union together with Switzerland, Iceland, Norway and Liechtenstein. 8. For the first zone, Belgium, Rules 140 et seq. of the FRBSB Rules fix transfer periods for transfers of players between Belgian clubs. For the 1995/96 season the period ran from 15 April to 15 May 1995, which was before the league season started. After the end of that transfer period no further transfer could take place between Belgian clubs for the current season. 9. For the second zone, Rule 3(c) of the FIBA Rules provides that clubs in principle may not engage players who have already played during the same season in another country in the same zone, if such a transfer takes place after the transfer periods determined by FIBA. The actual wording of Rule 3(c) [translation from French] is: For the European zone, the deadline for registration of foreign players is 28 February. After that date it is still permitted for players from other zones to be transferred to a European club. 10. As regards such transfers of players from third countries--that is, the third zone--Rule 144 of the Belgian FRBSB Rules provides in turn that: Players who are not registered with the club ... may not be fielded. ... Foreign or professional players ... who join after 31 March of the current season will no longer be qualified to play in ... matches of the current season.

Facts 11. Mr Lehtonen is a basketball player of Finnish nationality. During the 1995/96 season he first completed the Finnish championship. He *416 was then engaged by the Belgian club Castors Braine for the final stage of the 1995/96 Belgian championship. [FN2] FN2 It should be observed that the first division of the men's basketball championship in Belgium is divided into two stages. All clubs in the division take part in the first stage; in the second stage, only the best teams take part in play-offs to decide the champion, and the two bottom clubs play off to decide which is relegated from the first division. 12. The club notified the FRBSB of the player's engagement by letter of 30 March 1996, after the Finnish federation had released him on 29 March 1996. The contract itself--which provided for a remuneration of 200,000 Bfr, payable in four instalments of 50,000 Bfr each, for the duration of the engagement, which was the months of April and May, and a win bonus of 15,000 Bfr a time--was

concluded on 3 April 1996. 13. By letter of 5 April 1996 the FRBSB informed the club that licence approval by FIBA, required for the player to be validly played, had not yet been given, and that sanctions could be imposed on the club if Mr Lehtonen was played nonetheless. 14. FIBA, by letter of 9 April 1996, had refused to register Mr Lehtonen, on the ground that the transfer deadline of 28 February 1996 applicable to him had passed. 15. Before that, on 6 April 1996, Castors Braine played Mr Lehtonen in a league match against Belgacom-Quaregnon. Castors Braine won the match 104-102. The losing club protested against allowing the result of the match to stand, and the FRBSB awarded the match to Belgacom-Quaregnon by 20-0. That was on the ground that Mr Lehtonen had been played in breach of the FIBA Rules. Mr Lehtonen also appeared on the team sheet for the following match, but in the end he did not play. For that too, the club was penalised by a defeat. In order not to be exposed to further sanctions, Castors Braine did not select or play Mr Lehtonen in the remaining play-off matches. 16. Mr Lehtonen and Castors Braine thereupon brought an application for interim measures in the Tribunal de Première Instance, Brussels, seeking essentially an order quashing the award of the match by 20-0 to Belgacom-Quaregnon and prohibiting the FRBSB, on pain of a monetary penalty, from imposing further sanctions on the club if it continued to play Mr Lehtonen. In the context of those proceedings Mr Lehtonen, Castors Braine and the defendant FRBSB agreed that the club would not play Mr Lehtonen any more in the 1995/96 season, the FRBSB would suspend the sanctions which had so far been imposed, and the Belgian court would refer the case to the Court of Justice for a preliminary ruling. 17. By decision of 23 April 1996 the judge hearing urgent applications at the Tribunal de Première Instance, Brussels, held that a reference to the Court of Justice was justified and that the case was urgent for the purposes of the urgent procedure.

*417 The question referred 18. The Tribunal de Première Instance, Brussels, refers the following question to the Court for a preliminary ruling: Are the rules of a sports federation which prohibit a club from playing a player in the competition for the first time if he has been engaged after a specified date contrary to the Treaty of Rome (in particular Articles 6, 48, 85 and 86) in the case of a professional player who is a national of a Member State of the European Union, notwithstanding the sporting reasons put forward by the federations to justify those rules, namely the need to prevent distortion of the competitions? 19. In the proceedings before the Court of Justice Mr Lehtonen, the FRBSB, the Belgian League, the Austrian, French, German, Greek and Italian Governments and the Commission have submitted written observations. Apart from the Austrian and German Governments, all those parties also took part in the oral

procedure before the Court, at which the Danish and Spanish Governments also expressed their views on the question referred.

Opinion

Admissibility

Submissions of the parties 20. Doubts were expressed by the French and Italian Governments and the Commission as to the admissibility of the reference for a preliminary ruling. 21. They submit, first, that the order for reference contains hardly any information on the facts and its observations on the law are also too concise. In particular, it is not clear from the order to what extent Mr Lehtonen is to be classified as a worker, the applicable transfer rules are not described in sufficient detail, and the information needed for an assessment of the applicability of competion law is also missing. Secondly, there is no urgency, since the 1995/96 season is already over. 22. The Commission also considers that the dispute has largely become irrelevant in practice. Castors Braine have since gone into liquidation and Mr Lehtonen is playing basketball in France. The judge who made the order for reference also cannot on the basis of the question referred make a decision which would be binding in any proceedings on the substance. 23. Mr Lehtonen and the FRBSB, on the other hand, maintain that the reference is indeed admissible. It is for the court making the reference to determine whether the reference is necessary for its decision and, in urgent proceedings, whether a decision is urgent. Moreover, the plaintiff still has an interest in legal protection, since financial sanctions against the player are still possible and a decision on the costs of the main proceedings has not yet been made. Furthermore, taking a "benevolent" approach, all that is needed for a decision of the Court of Justice may be gathered from the order for reference. It is *418 apparent that Mr Lehtonen is a professional player in a professional club. The transfer periods are clearly set out, the Community law which may be applicable is sufficiently defined, the grounds of justification put forward by the FRBSB are included in the order, and on the basis of the "professional player--professional club--federation" constellation an assessment may also be made from the point of view of competition law. They submit that the reference is therefore admissible.

Opinion

1. Sketchy account of the facts 24. The Court of Justice held in Joined Cases C 320-322/90, Telemarsicabruzzo SpA v. Circostel and Others [FN3] that it could give a useful interpretation of Community law only if "the national court define[s] the factual and legislative context of the questions it is asking or, at the very least, explain[s] the factual

circumstances on which those questions are based". There are especially high requirements for questions on competition law. The possibility that the relevant information may later be gleaned by the Court of Justice from the case file forwarded, the written observations and the statements of the parties at the hearing thus does not release the referring court from the obligation to set out in the order for reference the necessary information for the Court of Justice, so that it can give a useful answer to the questions referred with sufficient knowledge of the facts which are at the origin of the main proceedings. FN3 [1993] E.C.R. I-393, para. [6]. 25. In the order in Case C-458/93, Criminal Proceedings against Saddik [FN4] the Court emphasised in addition that the content of the order for reference serves not only as information for the Court but is also intended to give the Member States an opportunity to submit observations on the points of law in the reference pursuant to Article 20 of the E.C. Statute of the Court of Justice; the Member States receive only the order for reference, not the documents in the case file. FN4 Order of 23 March 1995, [1995] E.C.R. I-511; [1995] 3 C.M.L.R. 318, para. [13].

Information concerning freedom of movement for workers 26. In the present case it appears from the order for reference that Mr Lehtonen is a Finnish professional basketball player who wished to transfer to a Belgian professional basketball club. He was refused permission for the transfer by the FRBSB, ultimately by reference to the transfer rules in force, which are contained in the order for reference. The transfer periods in force at the material time may thus be seen from the order for reference, as may the justification for those rules put forward by the federation, namely to avoid competition between teams being distorted by their being able to engage players at any time. *419 27. The order for reference thus contains all the information needed to give a useful answer to the question of the applicability of the provisions on freedom of movement for workers, and the reference for a preliminary ruling is admissible in that respect.

Information concerning competition law 28. On the other hand, the order for reference contains no information as to what facts are thought to justify the application of competition law, even though the Court of Justice has consistently held that especially careful statements of reasons are necessary in that field. In particular, there is no indication of how economic activities are divided up in Belgian basketball between the clubs, the Belgian League and the federation, what economic importance Belgian basketball has, and what is the economic situation of players of Belgian clubs in the Belgian league. There are thus no facts on which to base an assessment of

central questions of competition law, such as the clubs' status as undertakings, the possibility of trade between Member States being affected, the distortion, obstruction or restriction of competition, the presence of a dominant position and its abuse. The question is therefore inadmissible in so far as it relates to Articles 85 and 86 of the E.C. Treaty (now Articles 81 E.C. and 82 E.C.).

2. Continuation of the proceedings 29. The Court has consistently held that it is for the court making the reference to assess whether a preliminary ruling is needed. [FN5] If, then, that court considers a reference to be necessary, as a rule it is not for the Court of Justice to review that decision. On the other hand, the Court of Justice, in the preliminary ruling procedure, is an organ of the administration of justice and so has jurisdiction only over questions which concern actual legal disputes. [FN6] For references during the procedure for adoption of interim measures, the Court spelt out those criteria in its judgment in Case 338/85, Fratelli Pardini SpA v. Ministero del Commercio Con l'estero and Another. [FN7]. A reference is admissible only if the court making the reference is still entitled to give a decision for which it can use the Court's answer. Jurisdiction of the Court of Justice cannot therefore derive from the possibility of a future action for damages by Mr Lehtonen against the FRBSB. FN5 See, for example, Case 26/62, Algemene Transport- en Expeditie Onderneming Van Gend en Loos NV v. Nederlandse Tariefcommissie: [1963] E.C.R. 1; [1963] C.M.L.R. 105; and Case 83/78, Pigs Marketing Board (Northern Ireland) v. Redmond: [1978] E.C.R. 2347; [1979] 1 C.M.L.R. 177, para. [25]. FN6 Case C-83/91, Meilicke v. ADV/ORGA F.A. Meyer AG: [1992] E.C.R. I-4871, paras [25] et seq. FN7 [1988] E.C.R. 2041, paras [9] et seq. 30. In the present case, the main issue of the dispute has lapsed, since *420 it is no longer possible for Mr Lehtonen to play for Castors Braine in the 1995/96 season. In other respects too, the provisional arrangement between the parties can--as regards the bringing into effect of hitherto suspended sanctions by the FRBSB against Castors Braine--no longer be altered with any practical effect, if Castors Braine--as submitted by the Commission--have gone into liquidation. The concrete assessment of those facts is, however, not for the Court of Justice but for the referring court alone. In any event, it appears from the order for reference that at least the decision on costs remains to be made. It may be supposed that the probable outcome of any substantive proceedings would influence that decision. Consequently, answering the question referred is still of importance for a judicial decision. 31. The question referred for a preliminary ruling is therefore admissible, in so far as it concerns the interpretation of Article 48 and Article 6 of the E.C. Treaty (now, after amendment, Article 12 E.C.). With respect to the interpretation of the rules of competition law (in particular Articles 85 and 86 of the E.C. Treaty),

however, the question is inadmissible, since it does not contain sufficient information on the facts of the main proceedings. In case the Court of Justice should, however, decide that the question is admissible in this respect too, the competition law aspect will also be discussed briefly below.

Discrimination on grounds of nationality (compatibility with Articles 48 and 6 of the E.C. Treaty

32. Since Article 6 of the E.C. Treaty applies only without prejudice to any special provisions in the Treaty and Article 48 constitutes a special rule on freedom of movement for workers, there is no need to consider whether the rule in question is compatible with Article 6. 33. In so far as the parties address the question of discrimination, it is not disputed that the rules of sports federations fall in principle within the scope of Community law where they concern economic relationships. [FN8] FN8 See already Case 36/74, Walrave and Koch v. Association Union Cycliste Internationale and Others: [1974] E.C.R. 1405; [1975] 1 C.M.L.R. 320, paras [4]-[10]; and Case 13/76, Donà v. Mantero: [1976] E.C.R. 1333; [1976] 2 C.M.L.R. 578, paras [14]-[16]. 34. It is likewise common ground that the transfer rules at issue do not contain any discrimination against citizens of the Union on the ground of nationality. All the parties agree that the present transfer periods do not discriminate against players from federations of other Member States compared to players in the FRBSB. As between those two groups, it is only the players of Belgian clubs who might be treated less favourably. But the transfer of players within the Belgian league is not the subject of the question referred. It is also undisputed that Community law contains no rule which might, from the point of view of nationality, prohibit treating players who have previously played for clubs in other Member States less favourably than players who have *421 previously played for clubs outside the European zone. [FN9] There is therefore no occasion to consider the prohibition of discrimination against workers under Article 48 of the E.C. Treaty or the general prohibition of discrimination under Article 6 of the E.C. Treaty. FN9 However, it might be considered whether Article 6 of the E.C. Treaty prohibits (indirect) discrimination against Europeans compared to nationals of non-Member countries. The wording would probably not oppose such an interpretation, if the citizens of the Union concerned are in a situation which is covered by Community law.

Obstruction of freedom of movement for workers under Article 48 of the E.C. Treaty

Submissions of the parties 35. Mr Lehtonen and Castors Braine submit that Mr Lehtonen is a worker within the meaning of Article 48 of the E.C. Treaty. That provision prohibits not only

discrimination against workers from other Member States but also restrictions on freedom of movement for workers. There is such a restriction here, since the transfer periods deprive players at certain times of any possibility of taking up employment. The exercise of the sport of basketball by a professional player with a professional club falls within the scope of Community law, since according to the case law of the Court of Justice professional sport forms part of the economic activities mentioned in Article 2 of the E.C. Treaty (now, after amendment, Article 2 E.C.). Since the present case concerns the economic aspects of sport and the exercise by Mr Lehtonen of a fundamental freedom, the application of Article 48 of the E.C. Treaty is not precluded by the freedom of association of the clubs and the resulting autonomy of the federation, nor by the principle of subsidiarity. It is also settled case law of the Court that Article 48 can apply to private legal relations. 36. The Belgian League submits, relying on the Walrave and Donà judgments, that Article 48 of the E.C. Treaty is not applicable to the present case, since the rules of the FRBSB and FIBA are based on non economic and purely sporting grounds. [FN10] FN10 Judgments in Walrave and Dona, cited in fn. 8. 37. The FRBSB, the Belgian League and Denmark take the view that application of Article 48 of the E.C. Treaty is to be restricted to the free movement of goods, in accordance with Joined Cases C 267 & 268/91, Criminal Proceedings against Keck and Mithouard. [FN11] The Court of Justice should draw a distinction between rules for the exercise of a profession and restrictions on access. Article 48 is to be limited to restrictions on access and mere rules of exercise should be excluded from its application. FN11 [1993] E.C.R. I-6097; [1995] 1 C.M.L.R. 101. 38. Italy considers that the national court gives no information on whether the player is to be regarded as a worker at all. *422 39. Greece assumes that Article 48 of the E.C. Treaty applies in principle to rules such as those made by the FRBSB and FIBA. The present case, however, concerns a purely internal Belgian situation, since a Belgian player is just as ineligible to play if he misses the transfer deadline. According to the settled case law of the Court, Article 48 does not apply to purely internal situations. Freedom of movement for workers, as protected by Article 48, is also not affected. 40. France, Spain and the Commission, on the other hand, consider that freedom of movement for workers is affected. Germany and Austria concede at least the possibility that it may be affected.

Opinion

1. Whether there is an obstacle to freedom of movement for workers

41. As follows from the Court's case law, having regard to the objectives of the Community, sport is subject to Community law in so far as it constitutes an economic activity within the meaning of Article 2 of the E.C. Treaty. [FN12] If the Court then goes on to state that this applies to the activities of professional or semi-professional footballers where they are in gainful employment or provide a remunerated service, the same must be true of professional basketball players in a similar situation. FN12 Bosman, cited in fn. 1, para. [73], and Walrave, cited in fn. 8, para. [4]. 42. Since it is further not necessary--for the Community provisions on freedom of movement for workers to apply--for the employer to be an undertaking, all that is required being an employment relationship or the intention to create one, Article 48 of the E.C. Treaty must be taken to apply in principle in the present case. 43. The Italian Government is indeed right to say that the order for reference contains scarcely any information on the question whether Mr Lehtonen is a worker. It merely mentions that Castors Braine "engaged" Mr Lehtonen as a basketball player. However, according to the order and the further procedure, it is not disputed between the parties that Mr Lehtonen is to be regarded as a worker. Article 48 of the E.C. Treaty consequently applies in principle. 44. On obstacles to freedom of movement for workers, the Court held in Bosman: Provisions which preclude or deter a national of a Member State from leaving his country of origin in order to exercise his right to freedom of movement ... constitute an obstacle to that freedom even if they apply without regard to the nationality of the workers concerned. ... [FN13] FN13 Bosman, cited in fn. 1, para. [96]. 45. Accordingly, the transfer periods obstruct freedom of movement for workers under Article 48 of the E.C. Treaty: once they have expired, they prevent nationals of other Member States from leaving *423 their country of origin in order to play professional basketball in Belgium.

2. Application by analogy of Keck and Mithouard 46. There is no occasion to follow the view expressed by the FRBSB and Denmark and restrict the scope of Article 48 of the E.C. Treaty in accordance with the judgment in Keck and Mithouard. [FN14] Even if the Court were to draw a distinction, as suggested, between rules on access and rules on exercise, [FN15] it would not follow in the present case that Article 48 was not applicable. The Court of Justice has already stated on this point, in the Bosman judgment: It is sufficient to note that, although the rules in issue in the main proceedings apply also to transfers between clubs belonging to different national associations within the same Member State and are similar to those governing transfers between clubs belonging to the same national association, they still directly affect players' access to the employment market in other Member States and are thus

capable of impeding freedom of movement for workers. They cannot, thus, be deemed comparable to the rules on selling arrangements for goods which in Keck and Mithouard were held to fall outside the ambit of Article 30 of the Treaty ... [FN16] FN14 Cited in fn. 11. FN15 This was considered by Advocate General Lenz in Bosman, para. 205. FN16 Bosman, cited in fn. 1, para. [103]; see also, on freedom to provide services, Case C-384/93, Alpine Investments BV v. Minister Van Financien: [1995] E.C.R. I-1141; [1995] 2 C.M.L.R. 209, paras [36]-[38]. 47. That finding applies correspondingly to the transfer periods: they not only affect the exercise of basketball within the jurisdiction of the FRBSB, but also at certain times prevent access by players who have previously played in another federation and on being transferred to Belgium (necessarily) wish to exercise their right to freedom of movement. This is therefore a rule on access, which even on this view should be assessed entirely under Article 48 of the Treaty. 48. Moreover, independently of the present case, there is no reason to introduce such a restriction of the scope of Article 48 of the E.C. Treaty. In Keck and Mithouard the Court limits the wide scope of the free movement of goods under the judgment in Case 8/74, Procureur du Roi v. Dassonville [FN17] by largely excluding rules of a certain kind, namely on selling arrangements. Selling arrangements are characterised by the fact that they do not necessarily affect those who import or export a product, but only the subsequent sale to the final consumer. A foreign producer does not therefore, with respect to selling arrangements, have to alter his product according to the sales market he has in mind. Selling arrangements thus as a rule affect trade in goods only very indirectly. If trade in goods between Member States were nevertheless affected to a greater degree than internal trade within the Member State, then the formulation used in Keck and *424 Mithouard would no longer apply, as its very wording shows. Furthermore, product related requirements always come under free movement of goods, according to the Court's case law. [FN18] Rules on the exercise of a profession are much closer to product related rules than to rules on selling arrangements. Rules on exercise must, like product related rules, be complied with directly by a citizen of the Union who wishes to assert the fundamental freedom under Article 48 of the E.C. Treaty. He must take account of new rules of exercise and acquire corresponding qualifications, possibly after every cross frontier change of employment. FN17 [1974] E.C.R. 837; [1974] 2 C.M.L.R. 436, para. [5]. FN18 Case C-470/93, Verein gegen Unwesen In Handel und Gewerbe Köln eV v. Mars GmbH: [1995] E.C.R. I-1923; [1995] 3 C.M.L.R. 1, para. [13].

49. The filter effect of the Keck and Mithouard judgment is also not necessary in the field of freedom of movement for workers in the same way as it is with respect to the free movement of goods. According to Keck and Mithouard, the only selling arrangements which are compatible with free movement of goods are those which apply in the same way to all the products concerned or affect national and foreign products in the same manner in fact and in law. That fundamental freedom continues to apply, on the other hand, to selling arrangements which have a specially burdensome effect on trade in goods. Admittedly, freedom of movement for workers also has a wide definition-- comparable to the Dassonville formula--but it is already restricted by the fact that freedom of movement may be relied on only in a cross border situation. That starting point for reliance on freedom of movement already has a similar restrictive effect to that under Keck and Mithouard for selling arrangements. 50. Transfer periods thus in principle hinder freedom of movement under Article 48 of the E.C. Treaty. However, the Court has held, again in Bosman, that obstacles to freedom of movement for workers could be compatible with the Treaty if and in so far as they: pursued a legitimate aim compatible with the Treaty and were justified by pressing reasons of public interest. But even if that were so, application of those rules would still have to be such as to ensure achievement of the aim in question and not go beyond what is necessary for that purpose ... [FN19] FN19 Bosman, cited in fn. 1, para. [104].

3. Justification of the obstacle

Submissions of the parties 51. Mr Lehtonen and Castors Braine do not accept that the restriction of freedom of movement for workers is justified in order to protect sporting competition from distortions. They argue that restricting transfer possibilities cannot guarantee that competition is preserved. Rather, competition is distorted if clubs cannot compensate for any unavailability of important players. The rules also entrench the existing imbalance between clubs. Rich clubs can engage players to *425 have in reserve, while poor clubs, on the other hand, without the possibility of transfers during the season, are exposed to all the blows of fate. 52. Moreover, the rules are not necessary. The spectre of a massive transfer merry-go-round is not realistic. A transfer is successful only if a club can sign better players, who must of course be out of contract. New players are often difficult to integrate into existing teams. The English football league, in which transfer periods have been abolished, shows that transfer periods are not necessary. Even the FRBSB allows transfers of players from third countries up to 31 March. 53. Finally, the Court must balance the interest in undistorted sporting competition against the players' interest in employment. Freedom of movement for workers is based on the E.C. Treaty and at the same time embodies the fundamental right of freedom to pursue a profession, in particular the free choice

of employer, as the Court held in Joined Cases C 132, 138 & 139/91, Katsikas and Others v. Konstantinidis and Others. [FN20] Sporting competition, on the other hand, cannot be derived directly from the Treaty, but takes its legitimation in Community law solely from the Bosman judgment. [FN21] FN20 [1992] E.C.R. I-6577; [1993] 1 C.M.L.R. 845, para. [32]: "... must be free to choose his employer and cannot be obliged to work for an employer whom he has not freely chosen". FN21 Cited in fn. 1. 54. They submit, in the alternative, that any transfer periods which might be justified would have to be proportionate temporally, that is, determined with great restraint. There must be no difference in treatment between different players. Finally, such a system requires legitimation by means of legislation. 55. The FRBSB relies, as justification for the transfer deadline, on the necessity of sporting associations having in principle to define the rules of the sport in question, so that it can exist at all. With respect to the various deadlines, it refers to "sporting ethics" and the risk that competition within a championship might be distorted at a particular time by the signing of new players. The phasing of the transfer periods for players from the European zone and players from other countries is intended, in particular, to stop players from being able first to complete a national championship in order then, by a transfer in the closing stage of another championship, to distort competition there. The deadline prevents players from being enticed away from clubs of other federations in the European zone which are still in decisive stages of the competition. The FIBA deadline is chosen in such a way that it comes before the end of a considerable number of European championships which end early. Championships of other countries, in particular the USA, end later, on the other hand. 56. In the opinion of the Belgian League too, a temporal restriction of transfer possibilities is necessary, as otherwise there will be a threat of competition being distorted in the league. *426 57. Germany takes the view that transfer periods are justified in any case. Otherwise there is a threat of distortion of sporting competition by the same players playing for different clubs during the same season, and especially of other teams being weakened by players being lured away. That objective is justified on grounds in the public interest. Article 48 of the E.C. Treaty merely prohibits different transfer periods for players from the home country and those from other Member States. 58. Austria too refers to the risk of players moving inside a league, if it has not yet been decided. There is otherwise a danger that success will be decided by financial capability alone. A league requires a certain continuity of the teams taking part. 59. France submits that the transfer rule is justified on sporting grounds, [FN22] namely the need for a sporting competition to be carried on by teams which are put together for a season, not from match to match on the basis of financial

possibilities and the availability of players. FN22 In this connection France refers to the 29th Declaration annexed to the Treaty of Amsterdam, emphasising the social significance of sport, in particular its role in forging identity and bringing people together. 60. According to Greece, the transfer periods are justified on grounds of the public interest, namely avoiding distortions of sporting competition, ensuring equality of chances and openness of results, and preserving a financial balance between clubs. 61. In Spain's view, they are justified simply because basketball is a team sport. The different phasing of the transfer periods follows from the different scheduling of leagues inside and outside Europe. 62. In the Commission's opinion, the transfer deadline could be justified in accordance with the Court's findings in the Bosman judgment. [FN23] If after a certain date a team can no longer be strengthened by new players, that guarantees to a certain extent equality of chances and uncertainty of results. [FN24] At the hearing the Commission concentrated in particular on the phasing of the transfer periods. The transfer deadline of 28 February for European players is appropriate for preventing distortion of competition only if competition cannot be distorted after that deadline by transfers from third countries. FN23 Cited in fn. 1. FN24 See also the Commission staff working paper of 29 September 1998, "The development and prospects for Community action in the field of sport", http:// europa.eu.int/comm/dg10/sport/publications/doc evol de.html, point 4.1.2., Sport and competition policy.

Opinion

1. Preliminary observation 63. The Court held in Bosman specifically on sporting grounds of justification for obstacles to freedom of movement for workers: In view of the considerable social importance of sporting activities and in particular football in the Community, the aims of maintaining a balance *427 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. [FN25] FN25 Bosman, cited in fn. 1, para. [106]. 64. In the present case, none of those interests is affected. Only a very remote connection with encouraging the training of young players might be discerned, in that any transfer restriction prevents trained players from leaving the club where they have been trained. That justification is not put forward by any of the parties.

65. Besides, as Mr Lehtonen and Castors Braine submit, transfer periods ensure neither that a balance is created, nor a certain equality of opportunity and uncertainty of results. A transfer deadline merely, when it expires, creates uncertainty as to the success of the arrangements made until then. In the further course of the season it then as a rule becomes clear what the balance of power is within a league. The restriction of transfers then leads to the preservation of the existing imbalance between the clubs in a league and increases the probability that the expected results of matches will occur. Mr Lehtonen and Castors Braine put forward the convincing view that transfers of players would in principle promote competition, since weaker teams would get the chance to move up to join the stronger teams. That is a condition for teams which are initially weaker to be able to succeed in contests against stronger teams, which would thus promote uncertainty of results. 66. In the parties' submissions on justification, two further grounds of justification can be seen, however, for the objective pursued by transfer deadlines, namely excluding the strengthening of teams after a certain point in time. First, it is based on a rather idealistic view of sporting competition, put forward by the FRBSB under the rubric "sporting ethics". Secondly, there is also an actual risk of distortion of competition between different teams within a competition.

2. The federations' organisational authority 67. The idealistic justification lies in an analogy between team competitions and individual competitions. On this view, success in a sporting competition should reflect the performance of the participants--that is, either individuals or teams--over the entire duration of the event. Changes to the composition of a team in the middle of a season might contradict that aim. However, this is an organisational motive which can never be fully realised in the case of team sports because of their particular circumstances. 68. Such motives on the part of sporting organisations should admittedly be recognised by Community law, since sport differs from most other spheres of application of the fundamental freedoms in that it cannot exist without defining rules. Usually the exercise of *428 fundamental freedoms presupposes only freedom and in certain cases a commitment to contractually based obligations. All other rules are typically not preconditions to the exercise of the fundamental freedom, but are justified only by the compelling public interest. Activity as a professional sportsman, however, presupposes the existence of a sport. Sport can exist only within fixed rules. 69. It is that necessity which enables the sporting associations to interfere with the rights of sportsmen without the legislation demanded by Mr Lehtonen and Castors Braine. That legislative deficit is, though, a necessary consequence of the fact that sportsmen traditionally create their own organisation in defining their sports, rather than waiting for the State to make rules. In a similar way to the dialogue of management and labour recognised by Community law under Article 118b of the E.C. Treaty (Articles 117 to 120 of the E.C. Treaty have been replaced by Articles 136 E.C. to 143 E.C.), that self regulation is appropriate in principle. [FN26] It is also justified by freedom of association, a principle of

Community law, which may also be found in similar form in Article 11 of the European Convention on Human Rights. So the necessity of sporting rules is itself an object of protection which is recognised in principle by Community law when rules of sporting associations are under review. FN26 See also the 29th Declaration annexed to the Treaty of Amsterdam (Declaration on sport), according to which the bodies of the European Union are to listen to sports associations when important questions affecting sport are at issue. 70. Rules of professional sport can in principle affect the fundamental freedoms of Community law. In the context of justification, it must then be said that the organisational authority of sporting associations is in itself a public interest deserving of protection, and that any rule of the sporting associations is in principle suitable for implementing the exercise of that organisational authority to precisely the extent provided for. As a rule there is also no less severe means of implementing the objective of regulation--in this case realisation of the ideal of an analogy between individual and team sports--to the precise extent desired. What is decisive is therefore the reasonableness of the organisation compared to the interference with the fundamental freedom. Here it must basically be presumed that mere rules of exercise of the sport may admittedly affect freedom of movement for workers if they require the person concerned to acquire new qualifications, but they do not normally constitute an unreasonable hindrance to freedom of movement for workers. Overt or covert barriers to access, on the other hand, interfere so radically with fundamental freedoms that they require a more weighty justification than the sporting associations' necessary organisational authority. 71. The present case concerns an overt barrier to access, since access by sportsmen from other Member States is impossible at certain times. For transfer deadlines, a justification which consists merely in the *429 organisational authority of the sporting associations is therefore excluded.

3. Comparability of results of matches 72. A justification may, however, follow from the much more objective risk to sporting competition within a particular sporting event which arises if teams may be strengthened during the competition. Thus the teams which were fortunate enough to play against a team before it was strengthened had better chances of success than the other teams which subsequently had to play the strengthened team. The final table is thus influenced by results which are no longer directly comparable. In contrast to the organisational motive of realising an analogy between individual and team sports, with this form of competition it is objectively necessary to prevent such distortions. No other forms of competition are apparent which would make it possible for all teams in a league to compete with each other on an equal basis but could guarantee comparability of results without transfer deadlines. [FN27] The league championship form of competition and its objective requirements are therefore to be recognised in principle from the point

of view of Community law. The justification of the transfer deadline of 28 February which affects Mr Lehtonen must be judged against that criterion. FN27 Cup competitions, which in principle do not imply comparable results but only presuppose success in the various individual matches, represent a completely different form of competition, which generally takes place in parallel to the league championship.

4. Justification of "delayed" transfer periods 73. First, it must be observed that these transfer deadlines do not intervene at the start of the season but during it, that is, they are "delayed". An arbitrarily fixed transfer deadline would not be appropriate for ensuring comparability of results. Even at this stage, then, justification would fail. 74. The situation would be different, however, if the transfer deadline was not set arbitrarily, but was adjusted to the course of the competition in such a way that comparability of results was ensured at least after the transfer deadline expired. Possibilities here are, for instance, the start of the second half of the season when all teams are due to play each other, or of play-offs, and even probably each new round in the case of elimination competitions. 75. Such transfer periods would be suitable for ensuring comparability of results to a diminished extent. Nor would any less severe means of attaining that objective to the same extent be apparent. 76. At the reasonableness stage, the preservation of comparability of results would have to be set against freedom of movement for workers. Mr Lehtonen and Castors Braine rightly emphasise here that freedom *430 of movement for workers is of great weight as both a fundamental freedom and a basic right. The basic right to the free choice of employer was stressed by the Court in Case 222/86, Union Nationale des Entraineurs et Cadres Techniques Professionnels du Football (UNECTEF) v. Heylens and Others: "... free access to employment is a fundamental right which the Treaty confers individually on each worker in the Community". [FN28] FN28 [1987] E.C.R. 4097; [1989] 1 C.M.L.R. 901, para. [14]; confirmed, as regards sport, in Bosman, cited in fn. 1, para. [129]. 77. Mr Lehtonen and Castors Braine are also correct in emphasising the particular conditions of the occupation of professional sportsman. The professional activity of a sportsman is as a rule limited to a period of from 10 to at most 20 years; it may indeed be very much shorter, for all sorts of reasons. Remuneration is not very high, precisely in the less popular sports, but also in less successful clubs. 78. However, the existence and organisation of a league championship is a precondition for basketball players such as Mr Lehtonen to be able to exercise their sport professionally at all. In principle, therefore, the rules of the sporting associations are not arbitrary measures which adversely affect sportsmen's professional life. The Court held on this point as early as the 1970s that

Community law does not preclude sporting rules, in so far as they are based on purely sporting grounds. [FN29] Similar reasoning is apparent in the decision of the European Commission of Human Rights on the application by Mario Azzopardi against Malta. [FN30] That decision concerned a change in the rules of two rowing events, restricting participation to a maximum of three races in each case, against which Mr Azzopardi, who had previously successfully taken part in up to five individual races in each case, brought an-- unsuccessful--complaint. FN29 Walrave and Donà, cited in fn. 8, paras [4]-[10] and [14]-[16] respectively. FN30 Decision of 15 January 1998, application No. 35722/97. 79. Delayed transfer deadlines may be reasonable if they are not set arbitrarily. A transfer deadline may thus be justified on sporting grounds in the public interest if the deadline for sportsmen who have previously played for clubs in other Member States is chosen in such a way that comparability of the results of that competition is not affected by the transfers which take place before the deadline.

5. Justification of "phased" transfer deadlines 80. The present case raises the further question, however, of how far phased transfer deadlines are justified. Transfers of players to teams in the Belgian League are subject to different deadlines, depending on the federation to which the player's previous club belongs. Within a season, any transfer between Belgian clubs is excluded. [FN31] Players of *431 other clubs in the European zone--such as Mr Lehtonen--may be transferred to a Belgian club up to 28 February, on the basis of a FIBA transfer deadline. Finally, players from clubs in third countries may still be transferred to a Belgian club up to 31 March, on the basis of the FRBSB transfer deadline. FN31 This is not the place to decide how far a transfer deadline still exists at all for players of Belgian clubs following the decision of the judge representing the President of the Tribunal de Première Instance, Brussels, of 4 March 1996 in Case 96/196/C (Kalut v. Frbsb) and under the new Rule 86 of the FRBSB Rules. 81. The prohibition of transfers between clubs in the Belgian League is not material to the present case. It does not affect Mr Lehtonen's freedom of movement in this case. Nor is it of any discernible significance for assessing the justification of the effect on that freedom of the transfer deadline of 28 February. 82. On the other hand, the transfer deadline for players from third countries may not be disregarded when assessing the justification for a transfer deadline for European players. As explained above, it may be justified by the preservation of comparability of results. If, however, as a result of a phased transfer deadline, players who have previously played in third countries can still be transferred to teams in the Belgian League after this is prohibited for players who have previously played in other European States, then the comparability of results is

still jeopardised. Precisely in basketball, players from third countries-- good players from the USA or Brazil, perhaps--could significantly influence the existing balance within the Belgian League. Consequently, phased transfer periods of this kind are no longer suitable for ensuring comparability of results. On the basis of what has been said above, then, the stages in a system of phased transfer periods which prevented the transfer of players from other Member States before the end of the last stage would no longer be proportionate. 83. The submissions of the FRBSB contain another possible justification, however, in the reference to the end of national competitions in other countries in the European zone. Players are to be prevented from first completing a championship and then taking part in the final stage of another championship. It is doubtful whether the prevention of such a follow-on transfer is an objective to be recognised in Community law. That is certainly not so in the individual case. There is no evident reason why a player should be able to transfer to another championship shortly before the end of a season but not shortly afterwards when the season is over. 84. At the end of a championship, however, not merely individual players, but at least in theory a large number of attractive players become available on the market. The follow on transfer of a large number of players between federations whose championships end early and federations whose championships end late would appear problematic. The migration of, say, 10 top players of a national league to the four best teams of another league would no doubt fundamentally alter the previous balance of powers. Regardless of comparability of results, such a development would largely reduce ad absurdum the ideal of an analogy between individual and team sports. If the phased transfer deadline were to serve the purpose of preventing such a *432 "transfer movement", it might develop a justifying effect going beyond the mere organisational authority of the sporting associations. From the point of view of Community law, that objective ought to be recognised in principle simply because it is Community law which has first made it possible to play a large number of players from other Member States. [FN32] As long as the sports organisations were able to limit the number of foreign players, the risk of a "follow-on transfer movement" was also kept within bounds. FN32 See the Bosman judgment, cited in fn. 1. 85. If the means of phased transfer periods is to be justified, the phasing must, however, be appropriate and necessary as such to achieve the objective of preventing a "follow-on transfer movement", and be proportionate to the restriction of freedom of movement for workers. 86. Appropriateness would be excluded if there existed even one championship which was not covered by the phased deadline and there was reason to fear a "follow-on transfer movement" from there. [FN33] Appropriateness would be at least doubtful if the phased deadline with respect to championships of very high standard intervened only very belatedly. There would then be a risk of a "follow-on transfer movement" if teams in those leagues no longer had any targets to

play for in the competition, because they could not affect the outcome of the championship. In such cases a transfer of several top players could be attractive for those concerned even some time before the end of the championship. FN33 That would be the case in particular with a championship of the European Union and the EEA, since players from those Member States may be played without any restriction on numbers. That risk might possibly be rebutted, however, by proving that that championship was of such a low standard that a transfer movement was in fact not to be feared. 87. In the present case, it has not been shown that the European transfer deadline of 28 February meets those requirements. The FRBSB mentions only a very small number of championships which ended between 28 February and 31 March 1996. How the close of each of those championships turned out, that is, whether there was a risk of a follow-on transfer movement on the part of teams which were already out of contention, is not evident. A "follow-on transfer movement" from third countries appears excluded in any case. Regardless of the dates of the championships there, the participation of players from third countries is limited to one or two players per match under the FRBSB Rules. [FN34] FN34 Rule 245(1) of the old and Rule 87(2) of the new FRBSB Rules. 88. Considerable doubts are also indicated as regards the necessity of the phased transfer deadline. If it really is to be appropriate, then precisely in the case of the strong championships with early deadlines referred to above it catches, as well as "follow-on transfer movements", also transfers of players who wish for other reasons to leave their club although the club is still in the sporting competition of *433 the championship. No reason can be seen why those players should be disadvantaged compared to players from third countries. 89. A less severe means would be a system of approval for transfers, not based on deadlines but introducing material criteria for a transfer during a season which deal in particular with the problem of "follow-on transfer movements". Such a system would have, first, to guarantee that no other transfer failed because of a phased transfer period and, secondly, to prevent a "follow-on transfer movement" taking account of the current positions of the teams of a championship. A starting point might be the existing FIBA Rules. Since under the FIBA Rules a player requires a release from his club in any case, that club could determine whether there is evidence of a "follow-on transfer movement" or whether the transfer is taking place for reasons of another kind. That procedure would, however, be more difficult to carry out than the phased transfer period, and would be exposed to attacks by those who wish to take part in a "follow-on transfer movement". Decisions would have to be made quickly and there would presumably be a possibility of appealing. These difficulties argue rather against rejecting even the necessity of phased transfer periods. 90. Phased transfer periods are in any case, however, not reasonable. Only as relatively complex systems of rules are they suitable at all for achieving their

objective, and in so doing they also cover transfers which ought not to be prevented at all. They are therefore to be regarded as rules of a relatively low quality for achieving the objective. 91. In addition, at this point in the examination at the latest the actual probability of a "follow-on transfer movement" must be taken into account. Not every risk justifies every protective measure. Rather, the restriction of fundamental freedoms by a protective measure must be reasonably proportionate to the probability of the risk coming true. Additional earning possibilities for players and the transferring clubs could argue for a follow-on transfer movement. Experience abroad could also appear attractive. In the present case it is not evident that there is a risk of a "follow-on transfer movement". The practical difficulties appear considerable and the sporting gain doubtful. Problems could arise with the integration of new players shortly before the end of a competition, and with the long term planning of all the clubs involved. 92. Taking that situation into account, the extremely unfocused means of a phased transfer deadline cannot appear justified for preventing a not very probable "follow-on transfer movement", when set against the highly important protected right of freedom of movement for workers. If the national court were given more convincing information on the risk of a "follow-on transfer movement" and the precision of the effect of phased transfer periods, it would then be for that court to reconsider the question of justification on that basis. *434 93. A transfer period can therefore be justified on sporting grounds in the public interest only if the period is no shorter for players who previously played for clubs in other Member States than for players who previously played in third countries.

Applicability of Articles 85 and 86 of the E.C. Treaty 94. It must be stated to begin with that the applicability of the rules on competition is being considered only in the alternative. First, the reference for a preliminary ruling is inadmissible in this respect, as shown in paragraph 28 above. Secondly, the contested provisions on transfer periods--as has been shown--infringe the rules on freedom of movement for workers under Article 48 of the E.C. Treaty, in so far as citizens of the Union may rely on that fundamental freedom. The Court already held in Bosman that there is no need to rule on the interpretation of Articles 85 and 86 of the E.C. Treaty when there is already a breach of Article 48 of the E.C. Treaty. [FN35] FN35 Bosman, cited in fn. 1, para. [138].

Submissions of the parties 95. According to the applicant in the main proceedings, professional basketball players and the professional clubs represented in the Belgian basketball league are undertakings within the meaning of Article 85 of the E.C. Treaty. The federation, the FRBSB, is then to be classified as an association of undertakings. The FRBSB Rules are consequently to be regarded as an agreement between

undertakings or a decision of associations of undertakings. Trade between Member States is affected in so far as the rules on transfer periods affect all clubs and basketball players within the European Union and adversely affect the engagement of players from other Member States. Any economic exchange between the Member States is to be regarded as trade here. Competition is restricted in two ways. First, players from other Member States cannot compete with Belgian players or players from third countries and so apply for employment with Belgian clubs. Secondly, the clubs' possibilities of competing with each other to engage the players in question are restricted. That restriction of competition affects essentially the "market in players", since the players are workers who wish to perform contracts of employment or who provide services within the meaning of Article 59 of the E.C. Treaty (now, after amendment, Article 49 E.C.). In the absence of an exemption under Article 85(3) of the E.C. Treaty, the rules on transfer periods are to be regarded as incompatible with the common market and as prohibited under Article 85 of the E.C. Treaty. 96. As regards the application of Article 86 of the E.C. Treaty, the view is taken that the relevant market is the market in professional basketball players, who act either as workers or as providers of services. Geographically, the relevant market is to be regarded as the *435 entire market within the Community. In that the transfer rules in question restrict the players' possibilities of freely changing employer outside certain periods, there is an abuse of a dominant position. It is also possible, however, to determine the relevant market as that in which the Belgian clubs which play in the first division are active. Those clubs then joined together in the Belgian League to exclude any competition in the Belgian market. The dominant position on the market then follows from the monopoly position which the clubs--united in the federations--have. Since this conduct makes it impossible for other clubs to approach certain "production factors", that is, basketball players, in order to engage them for the current season, there is an abuse of a dominant position. 97. The FRBSB and the Belgian League consider that Article 85 of the E.C. Treaty is inapplicable because basketball players, in their opinion, are not undertakings. At most the big clubs are to be regarded as undertakings. Furthermore, the federations are not associations of undertakings and, moreover, the contested rules on transfer periods serve merely to create fair and undistorted competition. As regards Article 86 of the E.C. Treaty, they submit that there is no relevant market for basketball players, trade between Member States is not affected, and no position of economic power indicates an abuse of a dominant position. 98. According to the German Government, the rules of competition law are not applicable to the present case, since in particular there is no trade in basketball players between Member States. In the alternative, the transfer periods are in any case a necessary measure in order to make a competition between the clubs possible at all. 99. The Austrian, French, Greek, Italian and Spanish Governments also take the view that the competition rules do not apply to the present case. Such application is ruled out either because the players and clubs are not undertakings or

because this is a case not of economic operations but of a sporting competition between the players or clubs. The clubs and federations are indeed also economically active, that being made manifest in particular in ticket sales, advertising, the award of television rights and merchandising. The present case, however, concerns the regulation of transfer periods, which constitute sporting "rules of the game" only, and are thus not within the scope of Articles 85 and 86. 100. In the Commission's view, the application in principle of Articles 85 and 86 of the E.C. Treaty to the present facts is beyond doubt. Both the players and the clubs constitute undertakings, with the consequence that the federations may very well be associations of undertakings. Trade between Member States is affected in so far as the freedom of clubs to enter into contracts with professional players even during a current league season is restricted. The same applies to restriction of competition within the common market. The question arises, however, whether the rules concerning transfer periods are *436 necessary for organising a sporting competition between the clubs. In principle they are not unsuitable for achieving that objective; however, it follows from the phasing of the transfer periods that the rules as a whole are disproportionate. In the context of Article 86 of the E.C. Treaty, a dominant position can be held only by the clubs gathered together in the league. The relevant market could then only be the market in which players are engaged. For there to be a dominant position in the market, however, there must also be an economic connection between the clubs capable of giving rise to an oligopolistic structure in the market. The information provided by the referring court is too concise overall, however, for such conclusions to be reached. It must be taken that neither Article 85 nor Article 86 of the E.C. Treaty precludes the provisions in question on transfer periods.

Opinion

1. Article 85 of the E.C. Treaty 101. In the context of Article 85(1), it must be examined whether the acts at issue are attributable to undertakings and whether they are liable to affect trade between Member States and competition. 102. According to the Court's case law, in the context of competition law, the concept of an undertaking encompasses every entity engaged in an economic activity, regardless of its status and the way in which it is financed. [FN36] Despite the lack of information from the national court, it may be presumed-- also on the basis of the submissions of the parties--that the professional clubs organise sporting events for paying spectators, market television transmission rights and obtain income by means of advertising. They are thus indeed engaged in an economic activity. FN36 Case C-41/90, Höfner and Another v. Macrotron GmbH: [1991] E.C.R. I-1979; [1993] 4 C.M.L.R. 306, para. [21]; Joined Cases C 159 & 160/91, Poucet v. Assurances Generales de France and Another: [1993] E.C.R. I-637, para. [17]; and Case C-55/96. Jod Centre Coop. arl; [1997] E.C.R. I-7119; [1998] 4 C.M.L.R. 708, paras [20] et seq.

103. By contrast, however, there are no indications in the present case as to how the FRBSB and FIBA are themselves economically active. But since the FRBSB too is at least made up of economically active clubs, it is to be regarded in any case as an association of undertakings within the meaning of Article 85(1) of the E.C. Treaty. It is not not necessary for the association to pursue an economic activity of its own. FIBA accordingly acts as an association of associations of undertakings. The rules both of the FRBSB and of FIBA are therefore decisions of associations of undertakings. 104. It is also the case that trade between Member States may be affected. The concept of trade must not be restricted to trade in goods alone but given a wide interpretation. [FN37] It must therefore be possible to find that trade is affected in a case in which the exercise of fundamental *437 freedoms is obstructed. Transfer periods generally are liable to affect trade between Member States in so far as they may at certain times prevent changes of club by professional players within the Member States and so--as shown above--restrict freedom of movement for workers. FN37 Case 172/80, Zochner v. Bayerische Verbinsbank Act: [1981] E.C.R. 2021; [1982] 1 C.M.L.R. 313, para. [18]. 105. Since the development of economic activities by the clubs, that is, by undertakings, is obstructed by these transfer rules, there is probably also a restriction of competition within the meaning of Article 85(1) of the E.C. Treaty. A transfer period prevents clubs from increasing the attractiveness of their "product" by taking on new players during a certain period. 106. The provisions on transfer periods could, however, be necessary for creating and guaranteeing a competition between the clubs at all. As may be seen from the grounds of justification already put forward in connection with the examination of freedom of movement for workers and effects thereon, the transfer rules as a whole are capable of calling into existence and then guaranteeing fair competition between the clubs. 107. The Court rejected a purely formal application of the competition criterion in Case C-250/92, Gottrup-Klim Grovvareforeninger and Others v. Dansk Landbrugs Grovvareselskab AMBA. [FN38] According to that judgment, the rules of competition law are not to be applied in the abstract, but always by reference to the particular provisions and the economic conditions prevailing in the relevant market. Competition restricting rules such as in the present case which have the effect of promoting the establishment of competition on the market in question may therefore be compatible with Articles 85 and 86 of the E.C. Treaty if they are necessary and reasonable for achieving that objective. FN38 [1994] E.C.R. I-5641; [1996] 4 C.M.L.R. 191, paras [30] et seq.; see also Case 42/84, Remia BV and Others v. E.C. Commission: [1985] E.C.R. 2545; [1987] 1 C.M.L.R. 1, paras [19] et seq.

108. That reasoning may be transposed, at least partially, to the present situation. In so far as the present transfer deadlines do not disproportionately affect freedom of movement for workers, they guarantee comparability of results of matches within a season. That objective is decisive for the competition between clubs which consists in increasing the attractiveness of their matches. Transfer periods are therefore compatible with Article 85 of the E.C. Treaty to the extent that they may be reconciled with freedom of movement for workers. 109. No exemption has been granted, so there is no question of the application of Article 85(3) of the E.C. Treaty. 110. To sum up, it may be said that transfer deadlines are not compatible with Article 85 of the E.C. Treaty if in particular the comparability of results in a season would be affected by transfers of players before the expiry of the transfer deadline and the transfer period is shorter for professional sportsmen who previously played for *438 a club in another Member State than for professional sportsmen who previously played in third countries. It must be pointed out once more that this conclusion is based solely on hypothetical considerations, as the order for reference does not contain enough factual information for a definitive examination with respect to Article 85 of the E.C. Treaty.

2. Article 86 of the E.C. Treaty 111. The applicability of Article 86 of the E.C. Treaty to the present case presupposes first the existence of a dominant position. [FN39] FN39 On the definition of a dominant position, see Case 85/76, Hoppmann-la Roche & Co. AG F, B.C. Commission: [1979] E.C.R. 461: [1979] 3 C.M.L.R. 211, para. [38]; and also Joined Cases T 68, 77 & 78/89, Societa Italiana Vetro SpA and Others v. E.C. Commission: [1992] E.C.R. II-1403; [1992] 5 C.M.L.R. 302, para. [359], and Case T-102/96, Gbncor Ltd v. E.C. Commission: [1999] E.C.R. II-753: [1999] 4 C.M.L.R. 971, para. [273]. 112. It follows from the Court's judgment in Case C-96/94, Centro Servizi Spediporto Srl v. Spedizioni Marittima del Golfo Srl, [FN40] that mere participation in a body which co-ordinates competition does not suffice for the conclusion that there is a collective dominant position. The undertakings must rather be so closely linked that they can adopt the same conduct on the relevant market. FN40 [1995] E.C.R. I-2883; [1996] 4 C.M.L.R. 613, paras [32]-[34]. 113. In the present case the question thus does not arise of whether on the basis of their cartel the clubs actually could be linked so closely together, but of whether they are linked so closely that they can act independently of the players. 114. However, the statements of fact and law by the referring court needed to answer that question are lacking. Whether Article 86 of the E.C. Treaty applies to the main proceedings must therefore be left open.

Conclusion 115. For that reason I propose the following answer to the question referred: Provisions of a sports association under which a basketball club is prohibited from playing a professional basketball player who is a national of a Member State competitively (for the first time) if he was engaged only after a specified transfer date may be justified on sporting grounds in the public interest, and are therefore compatible with Article 48 of the E.C. Treaty (now, after amendment, Article 39 E.C.), if, for professional sportsmen who previously played for clubs in other Member States, that date is chosen in such a way that competitions are not distorted, in particular that comparability of the results of that sporting competition is not affected by transfers of players taking place before the expiry of the transfer period, and if that period is no *439 shorter than for professional players who previously played in third countries. JUDGMENT [1] By order of 23 April 1996, received at the Court on 22 May 1996, the Tribunal de Première Instance (Court of First Instance), Brussels, hearing an application for interim relief, referred to the Court for a preliminary ruling under Article 177 of the E.C. Treaty (now Article 234 E.C.) a question on the interpretation of Articles 6, 48 of the E.C. Treaty (now, after amendment, Articles 12 E.C. and 39 E.C.), 85 and 86 of the E.C. Treaty (now Articles 81 E.C. and 82 E.C.). [2] That question was raised in proceedings between Mr Lehtonen and Castors Canada Dry Namur-Braine ASBL (hereinafter "Castors Braine") and Fédération Royale Belge des Sociétés de Basket-ball ASBL (hereinafter "the FRBSB") and Ligue Belge-Belgische Liga ASBL (hereinafter "the BLB") concerning the right of Castors Braine to field Mr Lehtonen in matches in the first division of the Belgian national basketball championship. Rules on the organisation of basketball and on transfer periods [3] Basketball is organised at world level by the International Basketball Federation (FIBA). The Belgian federation is the FRBSB, which governs both amateur and professional basketball. The BLB, which consisted on 1 January 1996 of 11 of the 12 basketball clubs in the first division of the Belgian national championship, has the objective of promoting basketball at the highest level and representing top grade Belgian basketball at national level, in particular in the FRBSB. [4] In Belgium the national men's first division basketball championship is divided into two stages: a first stage in which all clubs take part, and a second stage which includes only the best placed clubs (play-off matches to decide the national title) and the clubs at the bottom of the league table (play-off matches to decide which clubs will stay in the first division). [5] The FIBA rules governing international transfers of players apply in their entirety to all the national federations (Rule 1(b)). For national transfers, the

national federations are recommended to take the international rules as guidance and draw up their own rules on transfers of players in the spirit of the FIBA rules (Rule 1(c)). Those rules define a foreign player as a player who does not possess the nationality of the State of the national federation which has issued his licence (Rule 2(a)). A licence is the necessary authorisation given by a national federation to a player to allow him to play basketball for a club which is a member of that federation. [6] Rule 3(c) of the FIBA rules prescribes generally that, for national championships, clubs are not allowed, after the deadline fixed for the zone in question as defined by FIBA, to include in their teams players *440 who have already played in another country in the same zone during that season. For the European zone the deadline for the registration of foreign players is 28 February. After that date it is still possible for players from other zones to be transferred. [7] Under Rule 4(a) of the FIBA rules, when a national federation receives an application for a licence for a player who has previously been licensed in a federation of another country, it must, before issuing him with a licence, obtain a letter of release from that federation. [8] According to the FRBSB rules, a distinction must be drawn between affiliation, which binds the player to the national federation, registration, which is the link between the player and a particular club, and qualification, which is the necessary condition for a player to be able to take part in official competitions. A transfer is defined as the operation by which an affiliated player obtains a change of registration. [9] Rules 140 et seq. of the FRBSB rules concern transfers between Belgian clubs of players affiliated to the FRBSB, which may take place during a defined period in each year, which in 1995 ran from 15 April to 15 May and in 1996 from 1 to 31 May of the year preceding the championship in which the club in question takes part. No player may be registered with more than one Belgian club in any one season. [10] In the version applicable at the material time, Rule 244 of the FRBSB rules stated: Players who are not registered with the club or who are suspended may not be fielded. This prohibition also applies to friendly matches and tournaments. ... Any contravention will be punished by [a] fine ... Foreign or professional players (Law of 24 February 1978) who join after 31 March of the current season will no longer be qualified to play in competition, cup, and play-off matches of the current season. [11] Rule 245(4) stated: Players of foreign nationality, including E.U. nationals, are qualified only if they have completed the formalities relating to affiliation, registration and qualification. They must in addition comply with the FIBA rules to obtain a licence ... The main proceedings [12] Mr Lehtonen is a basketball player of Finnish nationality. During the 1995/96 season he played in a team which took part in the Finnish championship, and

after that was over he was engaged by Castors Braine, a club affiliated to the FRBSB, to take part in the final stage of the 1995/96 Belgian championship. To that end the parties on 3 April 1996 concluded a contract of employment for a remunerated sportsman, under which Mr Lehtonen was to receive 50,000 Bfr net per month as fixed remuneration and an additional 15,000 Bfr for each match won by the club. That engagement had been registered with the FRBSB on 30 March 1996, the player's letter of release having been issued on 29 March 1996 by the federation of origin. On 5 April 1996 *441 the FRBSB informed Castors Braine that if FIBA did not issue the licence the club might be penalised and that if it fielded Mr Lehtonen it would do so at its own risk. [13] Despite that warning Castors Braine fielded Mr Lehtonen in the match of 6 April 1996 against Belgacom Quaregnon. The match was won by Castors Braine. On 11 April 1996, following a complaint by Belgacom Quaregnon, the competition department of the FRBSB penalised Castors Braine by awarding to the other club by 20-0 the match in which Mr Lehtonen had taken part in breach of the FIBA rules on transfers of players within the European zone. In the following match, against Pepinster, Castors Braine included Mr Lehtonen on the team sheet but in the end did not field him. The club was again penalised by the award of the match to the other club. As it ran the risk of being penalised again each time it included Mr Lehtonen on the team sheet, or even of being relegated to the lower division in the event of a third default, Castors Braine dispensed with the services of Mr Lehtonen for the play-off matches. [14] On 16 April 1996 Mr Lehtonen and Castors Braine brought proceedings against the FRBSB in the Tribunal de Première Instance, Brussels, sitting to hear applications for interim relief. They sought essentially for the FRBSB to be ordered to lift the penalty imposed on Castors Braine for the match of 6 April 1996 against Belgacom Quaregnon, and to be prohibited from imposing any penalty whatever on the club preventing it from fielding Mr Lehtonen in the 1995/96 Belgian championship, on pain of a monetary penalty of 100,000 Bfr per day of delay in complying with the order. [15] By agreement of 17 April 1996, the parties to the main proceedings agreed to submit "agreed submissions" by which they would seek a reference to the Court of Justice for a preliminary ruling, the dispute between them being frozen pending the Court's judgment. In those circumstances, the penalties imposed would be maintained, fines would not be imposed on Castors Braine, and Castors Braine would not field Mr Lehtonen in the play-off matches, all rights of the parties being otherwise reserved. [16] At the hearing on 19 April 1996, the BLB applied for leave to intervene in support of the FRBSB and the parties lodged their agreed submissions. The question referred for a preliminary ruling [17] In her order of 23 April 1996, the judge of the Tribunal de Première Instance, Brussels, hearing applications for interim relief considered first that there was nothing to prevent her from referring a question to the Court of Justice. She then found that, at the date on which the proceedings were brought, the condition of

urgency was indisputably satisfied, since Castors Braine wished to field Mr Lehtonen in forthcoming championship matches. Finally, she took note of the agreement between the parties to enable a reference to be *442 made to the Court, under the terms of which Castors Braine would not field Mr Lehtonen during the current championship, while the FRBSB undertook for its part to suspend all penalties. [18] In those circumstances the Tribunal de Première Instance, Brussels, after allowing the BLB's application to intervene, stayed proceedings and referred the following question to the Court for a preliminary ruling: Are the rules of a sports federation which prohibit a club from playing a player in the competition for the first time if he has been engaged after a specified date contrary to the Treaty of Rome (in particular Articles 6, 48, 85 and 86) in the case of a professional player who is a national of a Member State of the European Union, notwithstanding the sporting reasons put forward by the federations to justify those rules, namely the need to prevent distortion of the competitions? Jurisdiction of the Court to answer the question and admissibility of the question [19] It may be noted to begin with that, as the Court held in Case 338/85, Fratelli Pardini SpA v. Ministero del Commercio Con l'estero and Another, [FN41] and Case C-159/90, Society for the Protection of Unborn Children (Ireland) Ltd v. Grogan and Others, [FN42] a national court is empowered to make a reference to the Court for a preliminary ruling under Article 177 of the E.C. Treaty (now Article 234 E.C.) only if a dispute is pending before it in the context of which it is called on to give a decision which could take into account the preliminary ruling. Conversely, the Court has no jurisdiction to hear a reference for a preliminary ruling when at the time it is made the procedure before the court making it has already been concluded. FN41 [1988] E.C.R. 2041, para. [11]. FN42 [1991] E.C.R. I-4685; [1991] 3 C.M.L.R. 849, para. [12]. [20] In the present case, after the Tribunal de Première Instance had taken note of the agreement between the parties, it decided to refer a question to the Court for a preliminary ruling, while reserving its decision on the remainder of the case. It follows that it will still have to rule on the lawfulness from the point of view of Community law of the penalties imposed on Castors Braine and on the possible consequences of those penalties. On that occasion it will be called on to give a decision in which the Court's ruling will necessarily have to be taken into account. Consequently, it cannot be argued that that court, in the context of the procedure for applications for interim relief, is not entitled to refer a question to the Court for a preliminary ruling and that the Court has no jurisdiction to answer it. [21] The Italian Government and the Commission contest the admissibility of the

question, on the ground that the order for reference does not contain a sufficient account of the legal and factual context of the main proceedings. *443 [22] According to settled case law, the need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the national court define the factual and legal context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based. Those requirements are of particular importance in certain areas, such as that of competition, where the factual and legal situations are often complex. [FN43] FN43 See, in particular, Joined Cases C 320-322/90, Telemarsicabruzzo SpA v. Circostel and Others: [1993] E.C.R. I-393, paras [6] & [7]; Case C-67/96, Albany International BV v. Stichting Bedrijfspensioenfonds Textielindustrie: [2000] 4 C.M.L.R. 446, para. [39]; and Joined Cases C 115-117/97, Brentjens' Handelsonderneming BV v. Stichting Bedrijfspensioenfonds voor de Handel In Bouwmaterialen: [2000] 4 C.M.L.R. 566, para. [38]. [23] The information provided in decisions making references must not only enable the Court to reply usefully but also give the Governments of the Member States and other interested parties the opportunity to submit observations pursuant to Article 20 of the E.C. Statute of the Court of Justice. It is the Court's duty to ensure that that opportunity is safeguarded bearing in mind that, by virtue of the abovementioned provision, only the decisions making references are notified to the interested parties. [FN44] FN44 See, inter alia, the order in Case C-458/93, Criminal Proceedings against Saddik: [1995] E.C.R. I-511; [1995] 3 C.M.L.R. 318, para. [13]; and the judgments in Albany International, para. [40]; and Brentjens' Handelsonderneming, para. [39]. [24] In the main proceedings, it appears, first, from the observations submitted by the parties, the Governments of the Member States and the Commission pursuant to Article 20 of the E.C. Statute of the Court of Justice that the information in the order for reference enabled them properly to state their position on the question put to the Court, in so far as it concerns the Treaty rules on freedom of movement for workers. [25] Furthermore, although the Italian Government may have considered that the information provided by the national court did not enable it to take a position on whether, in the main proceedings, Mr Lehtonen is to be regarded as a worker within the meaning of Article 48 of the Treaty, it must be observed that that Government and the other interested parties were able to submit observations of the basis of that court's statements of fact. [26] Moreover, the information in the order for reference was supplemented by the material in the case file forwarded by the national court and the written observations submitted to the Court. All that material, which was included in the Report for the Hearing, was brought to the notice of the Governments of the

Member States and the other interested parties for the purposes of the hearing, at which they had an opportunity, if necessary, to amplify their observations. [FN45] FN45 See also, to that effect, Albany International, para. [43]; and Brentjens' Handelsonderneming, para. [42]. [27] Secondly, the information provided by the national court, *444 supplemented as far as necessary by the above material, gives the Court sufficient knowledge of the factual and legal context of the main proceedings to enable it to interpret the Treaty rules relating to the principle of the prohibition of discrimination on grounds of nationality and on freedom of movement for workers with respect to the situation which is the subject of those proceedings. [28] In so far as the question put concerns the competition rules applicable to undertakings, on the other hand, the Court considers that it does not have enough information to give guidance as to the definition of the market or markets at issue in the main proceedings. Nor does the order for reference show clearly the character and number of undertakings operating on that market or markets. In addition, the information provided by the national courts does not enable the Court to make meaningful findings as to the existence and volume of trade between Member States or as to the possibility of that trade being affected by the rules on transfers of players. [29] The order for reference therefore does not contain sufficient information to satisfy the requirements described in paragraphs [22] and [23] above, as far as the competition rules are concerned. [30] Accordingly, the Court should answer the question referred in so far as it relates to the interpretation of the Treaty rules on the principle of the prohibition of discrimination on grounds of nationality and on freedom of movement for workers. The question is inadmissible, however, in so far as it relates to the interpretation of the competition rules applicable to undertakings. Substance [31] In the light of the above, the national court's question must be understood as essentially asking whether Articles 6 and 48 of the Treaty preclude the application of rules laid down in a Member State by sporting associations which prohibit a basketball club from fielding players from other Member States in matches in the national championship, where the transfer has taken place after a specified date. Scope of the Treaty [32] It should be noted, as a preliminary point, having regard to the objectives of the Community, sport is subject to Community law in so far as it constitutes an economic activity within the meaning of Article 2 of the E.C. Treaty (now, after amendment, Article 2 E.C.). [FN46] The Court has also acknowledged that sport

has considerable social importance in the Community. [FN47] FN46 See Case 36/74, Walrave and Koch v. Association Union Cycliste Internationale and Others: [1974] E.C.R. 1405; [1975] 1 C.M.L.R. 320 *445 , para. [4]; and Case C-415/93, Union Royale Belge des Societes de Football Association Asbl and Others v. Bosman and Others: [1995] E.C.R. I-4921; [1996] 1 C.M.L.R. 645, para. [73]. FN47 See Bosman, para. [106]. [33] That case law is also supported by Declaration No. 29 on sport annexed to the Final Act of the conference which adopted the text of the Treaty of Amsterdam, which emphasises the social importance of sport and calls on the institutions of the European Union inter alia to give special consideration to the particular characteristics of amateur sport. In particular, that declaration is consistent with the above case law, in that it concerns situations where sport constitutes an economic activity. [34] The Treaty provisions concerning freedom of movement for persons do not preclude rules or practices excluding foreign players from 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, as in the case of matches between national teams from different countries. The Court has, however, stated that that restriction on the scope of the Treaty must remain limited to its proper objective, and may not be relied on to exclude therefrom the whole of a sporting activity. [FN48] FN48 See Case 13/76, Dona v. Mantero: [1976] E.C.R. 1333; [1976] 2 C.M.L.R. 578, paras [14] & [15]; and Bosman, paras [76] & [127]. [35] As to the character of the rules at issue in the main proceedings, it follows from Walrave, paragraphs [17] and [18], and Bosman, paragraphs [82] and [83], that the Community provisions on freedom of movement for persons and freedom to provide services not only apply to the action of public authorities but extend also to rules of any other nature aimed at regulating gainful employment and the provision of services in a collective manner. The abolition as between Member States of obstacles to freedom of movement for persons and freedom to provide services would be compromised if the abolition of State barriers could be neutralised by obstacles resulting from the exercise of their legal autonomy by associations or organisations not governed by public law. [36] In those circumstances, it must be stated that the Treaty, in particular Articles 6 and 48, may apply to sporting activities and to rules laid down by sports associations, such as those at issue in the main proceedings. The principle of prohibition of discrimination on grounds of nationality [37] According to settled case law, Article 6 of the Treaty, which lays down as a

general principle that there shall be no discrimination on grounds of nationality, applies independently only to situations governed by Community law for which the Treaty lays down no specific rules prohibiting discrimination. [FN49] FN49 See, inter alia, Case C-179/90, Merci Convenzionali Porto di Genova SpA v. Siderurgica Gabrielli SpA: [1991] E.C.R. I-5889 *446 ; [1994] 4 C.M.L.R. 422, para. [11]; and Case C-379/92, Criminal Proceedings against Peralta: [1994] E.C.R. I-3453, para. [18]. [38] As regards workers, that principle has been implemented and specifically applied by Article 48 of the Treaty. Existence of an economic activity and whether Mr Lehtonen is a worker [39] In the light of the foregoing and of the arguments presented at the hearing, it must be ascertained whether a basketball player such as Mr Lehtonen may carry on an economic activity within the meaning of Article 2 of the Treaty, and, more particularly, whether he may be regarded as a worker within the meaning of Article 48 of the Treaty. [40] In the context of the judicial co-operation between national courts and the Court of Justice in connection with references for a preliminary ruling, it is for the national court to establish and evaluate the facts of the case [FN50] and for the Court of Justice to provide the national court with such interpretative information as may be necessary to enable it to decide the dispute. [FN51] FN50 See, inter alia, Case 139/85, Kempf v. Staatssecretaris Van Justitie: [1986] E.C.R. 1741; [1987] 1 C.M.L.R. 764, para. [12]. FN51 Case C-332/88, Alimenta SA v. Doux SA: [1990] E.C.R. I-2077, para. [9]. [41] It must be pointed out, first, that the order for reference describes Mr Lehtonen as a professional basketball player. He and Castors Braine produced to the Court the contract of employment as a remunerated sportsman, mentioned in paragraph [12] above, under which he was to be paid a fixed monthly remuneration and bonuses. [42] Next, with respect to the concepts of economic activity within the meaning of Article 2 and worker within the meaning of Article 48 of the Treaty, it must be observed that these concepts define the scope of one of the fundamental freedoms guaranteed by the Treaty and, as such, may not be interpreted restrictively. [FN52] FN52 See, to that effect, Case 53/81, Levin v. Staatssecretaris Van Justitie: [1982] E.C.R. 1035; [1982] 2 C.M.L.R. 454, para. [13]. [43] With respect more specifically to the former concept, it is settled case law [FN53] that work as a paid employee or the provision of services for

remuneration must be regarded as an economic activity within the meaning of Article 2 of the Treaty. FN53 Donà, para. [12]; and Case 196/87, Steymann v. Staatssecretaris Van Justitie: [1988] E.C.R. 6159; [1989] 1 C.M.L.R. 449, para. [10]. [44] However, as the Court held inter alia in Levin, paragraph [17], and Steymann, paragraph [13], those activities must be effective and genuine activities and not such as to be regarded as purely marginal and ancillary. [45] As to the concept of worker, it must be borne in mind that, according to settled case law, it may not be interpreted differently according to each national law but has a Community meaning. It must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and duties of the *447 persons concerned. The essential feature of an employment relationship is that for a certain period of time a person performs services for and under the direction of another person, in return for which he receives remuneration. [FN54] FN54 See, in particular, Case 66/85, Lawrie-Blum v. Land Baden-Württemberg: [1986] E.C.R. 2121; [1987] 3 C.M.L.R. 389, paras [16] & [17]. [46] It appears from the findings of fact made by the national court and from the documents produced to the Court that Mr Lehtonen had entered into a contract of employment with a club in another Member State with a view to exercising gainful employment in that State. As he has rightly submitted, he thereby accepted an offer of employment actually made, within the meaning of Article 48(3)(a) of the Treaty. Existence of an obstacle to freedom of movement for workers [47] Since a basketball player such as Mr Lehtonen must be regarded as a worker within the meaning of Article 48 of the Treaty, the Court must consider whether the rules on transfer periods referred to in paragraphs [6] and [9] to [11] above constitute an obstacle to freedom of movement for workers, prohibited by that Article. [48] It is true that stricter transfer deadlines apply to players coming from other Belgian basketball clubs. [49] Those rules are nevertheless liable to restrict the freedom of movement of players who wish to pursue their activity in another Member State, by preventing Belgian clubs from fielding in championship matches basketball players from other Member States where they have been engaged after a specified date. Those rules consequently constitute an obstacle to freedom of movement for workers. [FN55] FN55 See, to that effect, Bosman, paras [99] & [100].

[50] The fact that the rules in question concern not the employment of such players, on which there is no restriction, but the extent to which their clubs may field them in official matches is irrelevant. In so far as participation in such matches is the essential purpose of a professional player's activity, a rule which restricts that participation obviously also restricts the chances of employment of the player concerned. [FN56] FN56 See Bosman, para. [120]. Existence of justifications [51] The existence of an obstacle to freedom of movement for workers having thus been established, it must be ascertained whether that obstacle may be objectively justified. [52] The FRBSB, the BLB and all the governments which submitted observations to the Court submit that the rules on transfer periods are justified on non economic grounds concerning only sport as such. *448 [53] On this point, it must be acknowledged that the setting of deadlines for transfers of players may meet the objective of ensuring the regularity of sporting competitions. [54] Late transfers might be liable to change substantially the sporting strength of one or other team in the course of the championship, thus calling into question the comparability of results between the teams taking part in that championship, and consequently the proper functioning of the championship as a whole. [55] The risk of that happening is especially clear in the case of a sporting competition which follows the rules of the Belgian first division national basketball championship. The teams taking part in the play-offs for the title or for relegation could benefit from late transfers to strengthen their squads for the final stage of the championship, or even for a single decisive match. [56] However, measures taken by sports federations with a view to ensuring the proper functioning of competitions may not go beyond what is necessary for achieving the aim pursued. [FN57] FN57 See Bosman, para. [104]. [57] In the main proceedings, it appears from the rules on transfer periods that players from a federation outside the European zone are subject to a deadline of 31 March rather than 28 February, which applies only to players from federations in the European zone, which includes the federations of the Member States. [58] At first sight, such a rule must be regarded as going beyond what is necessary to achieve the aim pursued. It does not appear from the material in the case file that a transfer between 28 February and 31 March of a player from a federation in the European zone jeopardises the regularity of the championship more than a transfer in that period of a player from a federation not in that zone. [59] However, it is for the national court to ascertain the extent to which objective reasons, concerning only sport as such or relating to differences between the

position of players from a federation in the European zone and that of players from a federation not in that zone, justify such different treatment. [60] In the light of all the foregoing, the answer to the national court's question, as reformulated, must be that Article 48 of the Treaty precludes the application of rules laid down in a Member State by sporting associations which prohibit a basketball club from fielding players from other Member States in matches in the national championship, where they have been transferred after a specified date, if that date is earlier than the date which applies to transfers of players from certain non member countries, unless objective reasons concerning only sport as such or relating to differences between the position of players from a federation in the European zone and that of players from a federation not in that zone justify such different treatment. *449 Costs [61] The costs incurred by the Danish, German, Greek, Spanish, French, Italian and Austrian Governments and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court. Order On those grounds, THE COURT (Sixth CHAMBER), in answer to the question referred to it by the Tribunal de Première Instance, Brussels, by order of 23 April 1996, HEREBY RULES: Article 48 of the E.C. Treaty (now, after amendment, Article 39 E.C.) precludes the application of rules laid down in a Member State by sporting associations which prohibit a basketball club from fielding players from other Member States in matches in the national championship, where they have been transferred after a specified date, if that date is earlier than the date which applies to transfers of players from certain non-member countries, unless objective reasons concerning only sport as such or relating to differences between the position of players from a federation in the European zone and that of players from a federation not in that zone justify such different treatment.

(c) Sweet & Maxwell Limited [2000] 3 C.M.L.R. 409 END OF DOCUMENT