Ministerio de EducaciÃ³n y Cultura
Real FederaciÃ³n EspaÃ±ola de FÃºtbol
(Reference for a preliminary ruling from the Audiencia Nacional (Spain))
(Article 23 of the Partnership and Cooperation Agreement between the EC and the Russian Federation â€“ Freedom of movement for workers â€“ Limit on the number of players from countries outside the EEA â€“ Football)
IÂ â€“Â Introductory remarks
1.Â Â Â Â The present proceedings for a preliminary ruling relate to the interpretation of the Agreement on partnership and cooperation establishing a partnership between the European Communities and their Member States, of one part, and the Russian Federation, of the other part (2) (â€˜the Agreementâ€™), specifically to the direct effect and meaning of Article 23 thereof regarding working conditions. The main proceedings concern a rule of a sports federation by which the number of footballers from third countries is limited in certain competitions.
IIÂ â€“Â Legal context
AÂ â€“ Community law
2.Â Â Â Â Article 23(1) of the Agreement states:
â€˜Subject to the laws, conditions and procedures applicable in each Member State, the Community and its Member States shall ensure that the treatment accorded to Russian nationals, legally employed in the territory of a Member State shall be free from any discrimination based on nationality, as regards working conditions, remuneration or dismissal, as compared to its own nationals.â€™
BÂ â€“ National law
3.Â Â Â Â Under Article 129(2) of the General Regulations of the Real FederaciÃ³n EspaÃ±ola de FÃºtbol (Royal Spanish Football Federation; â€˜RFEFâ€™), a football playerâ€™s licence is a document issued by the RFEF which entitles a player to practise the sport as a member of the federation and to be fielded in matches and official competitions as a player belonging to a specific club. The official competitions at national level which are worthy of note are the Primera Liga (First Division) and Second Division National Championships, the Copa del Rey (Kingâ€™s Cup) and the Supercup. It is thus necessary to hold the appropriate federation licence in order to participate in those competitions.
4.Â Â Â Â Article 173 of the General Regulations provides:
â€˜Without prejudice to the exceptions laid down herein, in order to register as a professional and obtain a professional licence, a footballer must meet the general requirement of holding Spanish nationality or the nationality of one of the countries of the European Union or the European Economic Area.â€™
Article 176 of the General Regulations provides:
â€˜1. Clubs entered for official professional competitions at national level shall be entitled to register foreign non-Community players in the number stipulated in the relevant agreements concluded between the RFEF, the Liga Nacional de FÃºtbol Profesional (National Professional Football League) and the AsociaciÃ³n de Futbolistas EspaÃ±oles (Association of Spanish Footballers). Those agreements also govern the number of such footballers who may take part simultaneously in a game.
2. Pursuant to the agreement concluded between the aforementioned bodies on 28Â May 1999, the relevant rules for the 2000/2001 season to the 2004/2005 season inclusive shall be as follows ...
3. Footballers who are covered by the scheme laid down in this article shall become members of the federation with rights and duties identical to those of players registered under the general rule, and they shall be governed by the same regulations.â€™
5.Â Â Â Â The wording of Article 176(2) that has not been set out relates to the number of licences for each season (in the Primera Liga, five in 2000/2001, four in each of the three following seasons, and three in the 2004/2005 season; in the Second Division, four in the 2000/2001 season, three in each of the two following seasons, and two in the final season) and to the number of non-Community players who may be fielded simultaneously (three in the Primera Liga in each of the five seasons and, in the Second Division, three in each of the first two seasons and two in each of the following three seasons).
IIIÂ â€“Â Facts, main proceedings and question referred for a preliminary ruling
6.Â Â Â Â Igor Simutenkov is a Russian national who holds a residence card and a work permit in the Kingdom of Spain. He works as a professional footballer under an employment contract with the club Deportivo Tenerife and holds the RFEF licence for players from outside the Community and the EEA. In JanuaryÂ 2001 he applied through his club to the RFEF for his licence to be converted, on the basis of the Agreement, into a Community playerâ€™s licence. The application was rejected by the RFEF pursuant to Article 173 et seq. of the RFEF General Regulations and the agreement of 28 May 1999 between the RFEF and the Liga Nacional de FÃºtbol Profesional.
7.Â Â Â Â Mr Simutenkov thereupon brought an action before the Juzgado de lo Social (Social Court) No 3 Santa Cruz de Tenerife against the RFEF, seeking protection of his fundamental right not to be discriminated against on the ground of his Russian nationality.
8.Â Â Â Â The Juzgado de lo Social No 3, Santa Cruz de Tenerife, upheld the action in a judgment dated 19 April 2001, finding discriminatory treatment and recognising Mr Simutenkovâ€™s right to be treated in the same way as a Community national in all matters relating to his working conditions. The judgment did not become final because of a claim relating to conflict of jurisdiction.
9.Â Â Â Â The Tribunal Supremo (Supreme Court) found that the Juzgado Central de lo Contencioso Administrativo (Central Court for Contentious Administrative Proceedings) had jurisdiction. The latter dismissed Mr Simutenkovâ€™s action by judgment of 22 October 2002.
10.Â Â Â Mr Simutenkov appealed against that judgment to the Audiencia Nacional (Sala do lo Contencioso Administrativo) (National High Court (Chamber for Contentious Administrative Proceedings)), which decided on 4 May 2003 to refer the following question to the Court of Justice for a preliminary ruling:
â€˜Is it contrary to Article 23 of the Agreement on partnership and cooperation establishing a partnership between the European Communities and their Member States, of one part, and the Russian Federation, of the other part, concluded in Corfu on 24 June 1994, for a sports federation to apply to a professional sportsman of Russian nationality who is lawfully employed by a Spanish football club, as in the main proceedings, a rule which provides that clubs may use in competitions at national level only a limited number of players from countries outside the European Economic Area?â€™
IVÂ â€“Â Assessment
11.Â Â Â As regards the content of the question referred for a preliminary ruling and its examination, an issue to be settled at the outset is whether the relevant provision of the Agreement is directly applicable, even if that is not expressly asked by the national court.
AÂ â€“ Direct effect of Article 23 of the Agreement
12.Â Â Â According to settled case-law, a provision in an agreement between the Community and a non-member country is directly applicable when the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure.
13.Â Â Â This requirement is to be examined from two points of view. First, the provision must be examined in isolation, on the basis of its wording. Second, the agreement as such is to be assessed, that is to say its subject-matter and nature (or essence and purpose or object and context). The Court of Justice has chosen this approach with regard to both Europe agreements (3) and cooperation agreements. (4)
1.Â Â Â Â Assessment of the provision in isolation
14.Â Â Â The starting point for assessing Article 23 of the Agreement in isolation must be its wording. In so doing it must be borne in mind that Community legislation is drafted in various languages and that the different language versions are all equally authentic. An interpretation of a provision of Community law thus involves a comparison of the different language versions. (5)
15.Â Â Â Such a comparison of the various language versions of Article 23(1) of the Agreement shows that its wording and meaning do not correspond in all of them. The ten language versions that were authentic at the time of signature give the following picture: while seven, (6) including the version in Russian, indicate an obligation, in the general sense of â€˜ensureâ€™, three language versions (7) point to an obligation to use endeavours. According to the Greek version, â€˜the Community and its Member States shall use every endeavourâ€™, according to the Spanish version â€˜they shall watch that â€¦â€™ and according to the Dutch version â€˜they shall take care that â€¦â€™.
16.Â Â Â In order to determine the meaning of Article 23 of the Agreement, one might take the common minimum of all the language versions as the starting point and accept that there is merely an obligation to use endeavours. However, such a method is supported neither by convincing arguments nor by the practice found in the Courtâ€™s case-law.
17.Â Â Â Another solution would be to determine the clearest text, hence to eliminate texts that are not typical (8) or versions which contain a translation error.Â (9) It is true that such an approach is in principle possible and is also found in the Courtâ€™s case-law, but in the circumstances of the present case, in which it is not just one text that diverges from all the others, the approach does not permit a convincing solution.
18.Â Â Â A method of interpretation referred to by the Commission, namely that the language versions forming the majority prevail, would support the view that preference is to be given to the language versions laying down an obligation. This method also finds expression in the Courtâ€™s case-law. (10) That may, however, be countered by the Courtâ€™s line of argument under which, in certain circumstances, a single language version is to be favoured over the majority. (11)
19.Â Â Â This indicates that recourse should be had to a quite different method, namely the method under which one proceeds on the basis of the original text, hence the version of the Agreement which served as the source text for the translations into the other languages. In the present case that would be the text in the negotiating language, English. This text (â€˜shall ensureâ€™) clearly imposes an obligation.
20.Â Â Â In view of the linguistic divergences it appears, however, to be necessary to consider the intention of the parties and the object of the provision to be interpreted.Â (12)
21.Â Â Â It is to be noted that this step in the examination is not always distinguished from the second step, (13) namely taking account of the object, purpose, essence or the like of the agreement.
22.Â Â Â The intention of the parties is of decisive importance for the interpretation of Article 23(1) of the Agreement. The documents which have been submitted by the Commission that were used in preparing for the negotiations on the Agreement support the view that the parties wanted to lay down a clear obligation going beyond an obligation merely to use endeavours.
23.Â Â Â A comparison with similar agreements also supports the view that Article 23(1) of the Agreement is in the nature of an obligation. A comparison with Article 24(1) of the agreement with Ukraine (14) and Article 23(1) of the agreement with Moldova (15) reveals that these parallel provisions expressly contain the words â€˜shall endeavour to ensureâ€™.
24.Â Â Â Further support for the view that Article 23(1) of the Agreement lays down an obligation going beyond an obligation merely to use endeavours is provided by the circumstance, revealed by the documents for negotiating the Agreement, that Russia expressed a wish to that effect.
25.Â Â Â The restriction at the beginning of Article 23(1) of the Agreement (â€˜Subject to the laws, conditions and procedures applicable in each Member State â€¦â€™) might indicate that Article 23 is not in the nature of an obligation and therefore does not have direct effect.
26.Â Â Â However, under the case-law of the Court of Justice on a similar provision in the Europe agreements, the words â€˜subject to the conditions and modalities applicable in each Member Stateâ€™ cannot be interpreted in such a way as to allow Member States to make the application of the principle of non-discrimination set out in that provision subject to conditions or discretionary limitations inasmuch as such an interpretation would render the provision meaningless and deprive it of any practical effect. (16)
27.Â Â Â The outcome of the analysis of Article 23(1) of the Agreement in isolation is, therefore, that the â€“ English â€“ original text and the majority of the language versions as well as the intention of the negotiating parties indicate that a clear obligation is imposed on the Community and the Member States and thus that that provision has direct effect.
2.Â Â Â Â Content and focus of the Agreement
28.Â Â Â Even if a provision which is to be examined in order to ascertain whether it has direct effect appears, when considered in isolation, to have such effect, it must still be examined whether that outcome is confirmed by the agreementâ€™s subject-matter and nature (or essence and purpose or object and context).
29.Â Â Â The Court, referring to Article 31(1) of the Vienna Convention of 23Â MayÂ 1969 on the Law of Treaties, has stated with regard to the interpretation of international agreements that â€˜a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purposeâ€™. (17)
30.Â Â Â That the wording of a provision alone is not decisive is shown by the fact that even where the wording of provisions is modelled on that of provisions of the EC Treaty, the Court will sometimes interpret the provision in the same way as the provision of the EC Treaty and sometimes not. (18)
31.Â Â Â So far as concerns Article 23(1) of the Agreement, the predominant view expressed in academic writings is that this provision is not directly applicable. The reason given is either that Article 27 of the Agreement provides for recommendations of the Cooperation Council (19) or that the Agreement pursues only a restricted object. (20)
32.Â Â Â The Agreement is therefore to be examined below in relation to its essence and purpose or the object pursued by it.
33.Â Â Â In this regard it can be stated, on the one hand, that the Agreement in any event signifies an advance in comparison with the trade agreement concluded previously with Russia. On the other hand, the Agreement lags behind the Europe agreements in a number of respects. This relates, first, to the substantive content, because the Agreement does not even establish a free trade area and, specifically with regard to freedom of movement, lags behind the provisions of the Europe agreements. Second, the institutional provisions also reveal a series of differences, for example the dispute-resolution mechanism.
34.Â Â Â Nor does the Agreement seek an association, let alone accession of the Contracting Party not in the European Union, as does, for example, the agreement with Slovakia underlying the Deutscher Handballbund case.
35.Â Â Â In my view, however, in order to find that a provision of an agreement is directly effective, it is not decisive that the agreement expressly refers to the prospect of accession.
36.Â Â Â That is also apparent from the now consistent case-law on the cooperation agreements with, for example, Algeria and Morocco. With regard to Morocco the Court has stated as follows:
â€˜The object of the Agreement â€¦ is to promote overall cooperation between the Contracting Parties, in particular in the field of labour. The fact that the Agreement is intended essentially to promote the economic development of Morocco and that it confines itself to instituting cooperation between the Parties without referring to Moroccoâ€™s association with or future accession to the Communities is not such as to prevent certain of its provisions from being directly applicable.â€™ (21)
37.Â Â Â The Agreement with Russia indeed even displays common ground with the Europe agreements in one respect. The Agreement too pursues the object of â€˜gradual integrationâ€™ of the other Contracting Party thereto. This aspect was one of the determining circumstances for the Court in deciding whether certain provisions of the Europe agreements were directly effective. (22)
38.Â Â Â It may also be inferred from the Courtâ€™s settled case-law on cooperation agreements that it is sufficient with regard to the object of an agreement that the Contracting Parties promote overall cooperation, in particular in the field of labour, for a provision laid down in such an agreement to be capable of governing directly the legal position of individuals. (23)
39.Â Â Â The provision in the cooperation agreements with Algeria and Morocco that sets out their objective states:
â€˜The object of this Agreement between the European Economic Community and [Algeria/Morocco] is to promote overall cooperation between the Contracting Parties with a view to contributing to the economic and social development of [Algeria/Morocco] and helping to strengthen relations between the Parties. To this end provisions and measures will be adopted and implemented in the field of economic, technical and financial cooperation, and in the trade and social fields.â€™
40.Â Â Â In the comparable provision of the Agreement, namely in Article 1, the following are agreed as objectives of the partnership with Russia: â€˜to promote trade and investment and harmonious economic relations between the Parties based on the principles of market economy and so to foster sustainable development in the Partiesâ€™; â€˜to provide a basis for economic, social, financial and cultural cooperation founded on the principles of mutual advantage, mutual responsibility and mutual supportâ€™; â€˜to provide an appropriate framework for the gradual integration between Russia and a wider area of cooperation in Europeâ€™; and â€˜to create the necessary conditions for the future establishment of a free trade area between the Community and Russia covering substantially all trade in goods between them, as well as conditions for bringing about freedom of establishment of companies, of cross-border trade in services and of capital movementsâ€™.
41.Â Â Â A comparison of the objectives of the Agreement with those of the cooperation agreements thus shows that their objectives correspond in many respects.
42.Â Â Â Nor, finally, is the difference between the title of the chapter (â€˜Chapter I Labour conditionsâ€™) in which Article 23(1) of the Agreement appears and the corresponding chapter in the Europe agreements (â€˜Chapter I Movement of workersâ€™) an indication that Article 23(1) lacks direct effect.
43.Â Â Â The fact that the part in which Chapter I of the Agreement appears is entitled â€˜Title IV Provisions on business and investmentâ€™ admittedly indicates that the terminology and substantive content differ from those of the Europe Agreements, but does not allow any inferences as to the effect of the provisions contained therein.
44.Â Â Â It follows from all of the foregoing that the essence and purpose or object and context of the Agreement indicate that the provision at issue in the present proceedings has direct effect.
45.Â Â Â It still remains to examine whether Articles 27 and 48 of the Agreement preclude Article 23 from being directly effective.
46.Â Â Â Article 23 of the Agreement is not prevented by Article 27 from having direct effect. Article 27 provides that the Cooperation Council is to make recommendations for the implementation of Articles 23 and 26.
47.Â Â Â The very wording of Article 27, which refers merely to the form of legal measure constituted by a â€˜recommendationâ€™, indicates that it is not to be inferred therefrom that the implementation of Article 23 is subject to the adoption of a subsequent legal measure. The role assigned to the Cooperation Council by Article 27 is thus, in relation to Article 23, a limited one â€“ that of facilitating implementation â€“ and cannot in any event be regarded as making immediate application of the prohibition of discrimination subject to a condition, namely the adoption of a legal measure. (24)
48.Â Â Â This conclusion is, moreover, consistent with settled case-law concerning the cooperation agreements with Algeria and Morocco. Under that case-law, the prohibition of discrimination in the field of social security has direct effect although the Cooperation Council has not exercised its implementing power, that is to say it has adopted no measures to implement the principles laid down in the relevant provisions of the agreements. (25)
49.Â Â Â Article 48 of the Agreement likewise does not prevent Article 23(1) from laying down a clear obligation. Article 48 states that, â€˜for the purpose of this Title, nothing in the Agreement shall prevent the Parties from applying their laws and regulations regarding entry and stay, work, labour conditions and establishment of natural persons and supply of services, provided that, in so doing, they do not apply them in a manner as to nullify or impair the benefits accruing to any Party under the terms of a specific provision of the Agreementâ€™.
50.Â Â Â Article 48 of the Agreement corresponds almost word for word to Article 59 of the Agreement with Slovakia and Article 58 of the Agreement with Poland. The Court has found that those last two provisions do not preclude direct effect. (26)
3.Â Â Â Â Conclusion
51.Â Â Â It must be concluded, on considering together all the matters material to determining whether a provision of an agreement has direct effect, that, on a proper construction of Article 23(1) of the Agreement, the obligation on the Community and its Member States enshrined therein to accord Russian nationals already legally employed in the territory of a Member State treatment free from any discrimination based on nationality, as regards working conditions, remuneration or dismissal, as compared to a Member Stateâ€™s own nationals has direct effect.
BÂ â€“ Purport of Article 23(1) of the Agreement: scope of the obligation
52.Â Â Â The issue in the present case is whether Article 23(1) of the Agreement precludes a rule such as that in question in the main proceedings. In this connection, it is necessary to proceed on the basis of the Courtâ€™s case-law on the purport of the rule on freedom of movement in Article 39 EC and to examine in that context whether Article 23(1) of the Agreement has the same purport at any rate with regard to a rule such as that at issue in the main proceedings.
53.Â Â Â With regard to the scope of the prohibition of discrimination laid down in Article 23(1) of the Agreement, it must be examined whether the rule at issue in the main proceedings constitutes an employment condition. In so doing, two elements must be distinguished: first, it must be examined whether rules of a sports federation are also covered and, second, the extent of the scope of the prohibition of discrimination in Article 23(1) of the Agreement must be analysed.
54.Â Â Â The starting point for ascertaining the legal purport of Article 23(1) of the Agreement is the Courtâ€™s judgment in Deutscher Handballbund which concerned a provision in a different agreement comparable to Article 23(1), namely ArticleÂ 38 of the agreement with Slovakia.
55.Â Â Â The Court has held with regard to the applicability of Article 38 of the agreement with Slovakia to rules of a sports federation that that provision also covers a rule drawn up by a sports federation such as the German Handball Federation which determines the conditions under which professional sportsmen engage in gainful employment. (27)
56.Â Â Â Article 23(1) of the Agreement contains an obligation which, so far as material, is couched in terms corresponding almost to the word to Article 38(1) of the agreement with Slovakia, namely that the treatment accorded to nationals of the other Contracting Party legally employed in the territory of a Member State is to be free from any discrimination based on nationality, as regards working conditions, remuneration or dismissal, as compared to a Member Stateâ€™s own nationals.
57.Â Â Â Hence, as in Deutscher Handballbund, the conditions are met for transposing the principles developed by the Court in Bosman (28) with regard to Article 39 EC to Article 23(1) of the Agreement also.
58.Â Â Â It has been submitted in the present proceedings with regard to the question whether the rule at issue in the main proceedings constitutes an employment condition that the licences govern access to the employment market and cannot be regarded as employment conditions. It is not in dispute that provisions which govern access to the employment market fall outside Article 23(1) of the Agreement.
59.Â Â Â It is, however, clear from the Courtâ€™s case-law (29) that clauses such as that at issue in the main proceedings concern not the employment of professional players, on which there is no restriction, but the extent to which their clubs may field them in official matches, and that participation in such matches is the essential purpose of those playersâ€™ activity.
60.Â Â Â In so far as a sporting rule such as that at issue in the main proceedings has a direct impact on the participation in matches of a Russian professional footballer who is already legally employed in accordance with the national provisions of the host Member State, it relates to working conditions within the meaning of ArticleÂ 23(1) of the Agreement.
61.Â Â Â Nor can this legal assessment be altered in any way by the differences between the sporting rules at issue in the main proceedings, in particular their legal nature, and the sporting rules underlying the Deutscher Handballbund case.
62.Â Â Â It now remains to examine whether the rule at issue in the main proceedings results in discrimination prohibited under Article 23(1) of the Agreement.
63.Â Â Â It is apparent from the Courtâ€™s case-law (30) that Article 39(2) EC precludes the application of rules laid down by sports federations under which, in competition matches which they organise, sports clubs may field only a limited number of professional players who are nationals of other Member States.
64.Â Â Â Article 23(1) of the Agreement grants employees with Russian nationality legally employed in the territory of a Member State a right to equal treatment as regards employment conditions that has the same scope as the right accorded in similar terms by Article 39(2) EC to Member State nationals.
65.Â Â Â Furthermore, the rule at issue in the main proceedings corresponds to the nationality clauses with which Bosman and Deutscher Handballbund were concerned.
66.Â Â Â The outcome reached by the Court in its case-law on the interpretation of Article 39(2) EC can therefore also be transposed to Article 23(1) of the Agreement.
67.Â Â Â It may be stated by way of conclusion that Article 23(1) of the Agreement precludes application of a rule such as that at issue in the main proceedings to MrÂ Simutenkov since the rule gives rise to a situation in which he, in his capacity as a Russian national, although legally employed in a Member State, has, in principle, merely a limited opportunity, in comparison with players who are nationals of Member States or of States in the EEA, to participate in certain competitions, that is to say the Primera Liga and Second Division National Championships, the Copa del Rey and the Supercup, which constitute, moreover, the essential purpose of his activity as a professional footballer. (31)
68.Â Â Â Like the rules underlying the Bosman and Deutscher Handballbund cases, the rule at issue in the main proceedings does not concern specific matches between teams representing their countries but applies instead to all official matches between clubs and thus to the essence of the activity of professional players. (32)
69.Â Â Â It is to be noted finally that it has not been submitted in the present case that the rule at issue in the main proceedings can be regarded as justified by exclusively sporting considerations.
VÂ â€“Â Conclusion
70.Â Â Â I accordingly suggest that the Court give the following answer to the question referred for a preliminary ruling:
Article 23(1) of the Agreement on partnership and cooperation establishing a partnership between the European Communities and their Member States, of one part, and the Russian Federation, of the other part, is to be interpreted as precluding a rule under which a sports federation of a Member State applies to a professional sportsman of Russian nationality who is lawfully employed by a football club of such a federation a provision which lays down that clubs may use in competitions at national level only a limited number of players from countries outside the European Economic Area.