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Discrimination on Grounds of Nationality in Sport

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European Sports Law

Part of the book series: ASSER International Sports Law Series ((ASSER))

Abstract

This paper is concerned with labour practices which are discriminatory on grounds of nationality and which are put into effect by private employers. The example chosen for the purposes of analysis is the discrimination against non-nationals practised by football clubs in most Member States of the Community, but it is suggested that the problem under investigation extends beyond football and indeed beyond sport, to discriminatory preferences which may be exercised by private bodies such as trade unions, professional bodies, employers, or employers’ associations. The legal issue which appears to pose most difficulty in this area is the potential overlap between Articles 48 and 85–86 of the Treaty of Rome. It is suggested that the discrepancies which exist between these provisions are accentuated by the possibility that action to combat the discriminatory rules may be taken on two levels, at Community level and/or at national level, making use of national systems of remedies before national courts.

First published in 9 Yearbook of European Law (1989), 55–92.

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Notes

  1. 1.

    The numerical discrepancy arises because there are four associations in the UK.

  2. 2.

    Union des Associations Européennes de Football.

  3. 3.

    On indirect discrimination, see, e.g., Case 152/73 Sotqiu v. Deutsche Bundespost [1974] ECR 153. On objective justification for such discrimination, see below, Sect. 2.3.2.1.

  4. 4.

    Art. 8A EEC, introduced by Art. 13 SEA.

  5. 5.

    This should not be taken to suggest that the period up until the end of 1992 constitutes a new transitional period, during which the existing Treaty rules lapse – though cp. in this respect the concerns of Pescatore 1987, 9–18. It is submitted that the 1992 date in this context has no formal legal significance and is instead merely a date chosen by the Commission in the exercise of its powers to enforce Community competition law.

  6. 6.

    The three competitions are the European Cup the most prestigious, contested every year since 1956 by the national champions) the European Cup-Winners Cup, and the UEFA Cup.

  7. 7.

    Art. 12(3) Regulations of the UEFA Club Competitions, 1989–90. A transitional period applies: a non-national registered prior to 3 May 1988, is excluded, i.e. is treated as a national, until the termination of the players registration with the club or the end of season 1990–1, whichever is earlier.

  8. 8.

    The precise nature of the required link varies from State to State. The matter is particularly complicated in the UK, above note 1.

  9. 9.

    When Glasgow Rangers lost the 1983 Scottish FA Cup Final they had no English players; their team defeated in the 1989 Final contained 6 English players.

  10. 10.

    Doc. A2-415/88, adopted 11 April 1989.

  11. 11.

    The Report also considers the football transfer system unlawful: ‘[…] a latter-day version of the slave trade […]’ On English law and the transfer system, see the leading case of Eastham v. Newcastle United [1964] Ch. 413; for a historical survey, see Grayson 1988, 35–7, 260–8; for analysis in the legal context, see, e.g., Treitel 1987, 349. On a separate matter, the Report also declares ‘without legal base and […] contrary to the free movement of people’ the exclusion of English clubs from European competition as a result of the tragedy at the Heysel Stadium, Brussels in 1985. On this point, see profound analysis by Evans 1986, 510–48.

  12. 12.

    Case 26/62 Van Gend en Loos [1963] ECR 1 [1963] CMLR 105.

  13. 13.

    Case 36/74 [1974] ECR 1405, [1975] 1 CMLR 320.

  14. 14.

    Para. 4 of the judgment.

  15. 15.

    The total ‘live’ audience (i.e., excluding television) for League football in England and Wales alone in season 1988–9 was 18,447,565 (Source: The Football Trust).

  16. 16.

    On the parallel interpretation of these provisions. See Case 48/75 Royer [1976] ECR 497, [1976] 2 CMLR 619, where the Court responded to questions referred under Art. 177 despite the fact that the national court had failed to specify whether the case was covered by Art. 48 or 52. It should also be noted in this respect that the Court in Walrave and Koch, above, note 13, saw no need to determine whether a contract of service (Art. 48 or a contract for services (Art. 59) was in issue, because ‘the rule of non-discrimination covers in identical terms all work or services’ (Para. 7 of the judgment). The same approach may be identified in Donà v. Mantero, below, note 26.

  17. 17.

    See Evans 1986, 510–48.

  18. 18.

    See Wyatt and Dashwood 1987, 206–7. The most significant distinctions between the three provisions reside in the scope of the rights granted to beneficiaries by virtue of supporting secondary legislation. Most strikingly, Reg. 1612/68 applies only to workers under Art. 48, these falling within Arts. 52 or 59 must rely on the general rule against discrimination on grounds of nationality enshrined in Art. 7 EEC, the scope of which is inexplicit. This issue lies beyond the scope of the present analysis and is of no direct relevance to it, but compare, e.g., Case 795/83 Gravier v. City of Liège [1985] ECR 593, [1985] 3 CMLR 1; Case 39/86 Lair v. University of Hanover [1989] 3 CMLR 545; Case 197/86 Brown v. Secretary of State for Scotland [1988] 3 CMLR 403; Case 63/86 Commission v. Italy [1989] 2 CMLR 601.

  19. 19.

    Art. 7(2) of the Reg. See Wyatt and Dashwood 1987, 176–80; O'Keeffe 1985, 93.

  20. 20.

    See particularly Arts. 1(2), 4.

  21. 21.

    Case 167/73, [1974] ECR 359. [1974] 2 CMLR 216. See Goyder 1988, 76; Wyatt and Dashwood 1987, 175.

  22. 22.

    See above note 13.

  23. 23.

    Consideration 10 of the Parliament's Resolution adopting the Janssen van Raay Report, above note 10 which endorses the special status of national representative teams.

  24. 24.

    This approach could also uphold discrimination in the selection of traditionally representative regional teams. Yorkshire County Cricket Club only selects Yorkshire-born players – it is the only one of the 17 first class counties to maintain this restriction. The discrimination is permissible, because it forms the means of preserving the uniquely representative nature of the team; it is not part of the economic structure or motivation of the club.

  25. 25.

    This suggests that amateur clubs practising discrimination are not covered by the Treaty; sed quaere the possible relevance of Art. 7(2) Reg. 1612/68, above note 19; see Ubertazzi 1976, 635, 644–7.

  26. 26.

    Case 13/76 [1976] 2 CMLR 578, [1976] ECR 1333.

  27. 27.

    A small number of exceptions exists, where player selection is governed by local representativity criteria, e.g., in cricket, Yorkshire, above note 24; in football, the Spanish League side Real Sociedad de San Sebastian, which finally surrendered its Basques-only policy at the start of season 1989–1990.

  28. 28.

    Hilf 1984, 517, 521 [the translation is the author's own]; cf. consideration 8 of the Parliament's Resolution adopting the Janssen van Raay Report.

  29. 29.

    For example, for the 1989–1990 season, Liverpool's playing staff of 34 consisted of only 10 Liverpool-born players, 18 were born outside England (Rothman's Football Yearbook. 20th Year, Queen Anne Press). This pattern is typical of most English First Division clubs.

  30. 30.

    Liverpool's first victory in the European Cup came in 1977 with a team including two non-English players. Since then, the only team to win the trophy with an entirely ‘home-grown’ 11 was Steaua Bucharest in 1986. The victory of Milan in 1989 was typical; they fielded 8 Italians and 3 Dutchmen.

  31. 31.

    Three of the last live FA Cup winning teams (up to 1989) have fallen into this category. The last English team to reach the European Cup Final were Liverpool in 1985, when 9 of their 11 players were internationals of countries other than England.

  32. 32.

    Quaere the value of such evidence, if adduced, as a means of escaping the ambit of the Treaty, the issue under consideration in this Part; or as a means of justifying such discrimination, cf. below, Sects. 2.3.2.3, 2.3.3.3 and 2.4.2.2. Note also, issues of proportionality: is it permissible to subject all clubs to such rules even if evidence of some lost support exists?

  33. 33.

    Schermers 1983, Paras. 89–94; Sundberg-Weitman 1977, 70–85, 109–11.

  34. 34.

    Case 251/83 Haug-Adrion [1984] ECR 4277, [1985] 3 CMLR 266. See also Case 182/83 Fearon [1984] ECR 3677, [1985] 2 CMLR 228.

  35. 35.

    The insurance rules were State approved; this was not simply a case of horizontal direct effect, cf. Sect. 2.3.2.2 above.

  36. 36.

    Ibid., Para. 16. The Court did not expand on this view. The defendant had argued that cars bearing a plate are an increased insurance risk because the car is likely to be driven abroad in areas unfamiliar to the driver (see A-G Lenz's Opinion).

  37. 37.

    See above, Sect. 2.2.

  38. 38.

    See above, Sect. 2.2.

  39. 39.

    Walrave and Koch, note 13 above.

  40. 40.

    See notes 29–31 above.

  41. 41.

    The rules of the English League, which make no distinction between English, Welsh, Scottish, or Irish players, offer strong support for this view. The UEFA rules, which make this distinction, can scarcely be objectively justifiable, given that the British association themselves see no need for such differentiation (see also note 96, below). The British case may be ‘special’, note 1 above, but it is submitted that in all Leagues, the identity of the club, not of the individual players, is the predominant concern.

  42. 42.

    ‘Vertical direct effect’ refers to the enforceability of rules between State and private individual. This is the phenomenon at issue on Case 167/73, note 21 above.

  43. 43.

    See note 53–55, below.

  44. 44.

    See note 13 above.

  45. 45.

    Ibid., Para. 17.

  46. 46.

    For analysis, and some scepticism as to the purity in practice of this distinction, see Hartley 1988, 278–80; Steiner 1988, 233–4; Rasmussen 1986, 442–50; Schermers 1983, Para. 611 et seq.; Weatherill 1988, 87, 100.

  47. 47.

    Van Staveren 1989, 67; Hilf 1984, 517, 520, note 22.

  48. 48.

    Case 13/76, note 26 above.

  49. 49.

    Ibid., Para. 13.

  50. 50.

    Burrows 1987, 131.

  51. 51.

    The extension of Community competence to cover such bodies is implicit in Walrave and Koch, note 13 above. However, this is not an example of the controversial ‘effects doctrine’ of jurisdiction, being justifiable on normal territorial and nationality principles; see Para. 28 of the judgment in Walrave.

  52. 52.

    Art. 7(l) Reg. 1612/68 also appears to assume this wider scope. Cf. also Art. 119 EEC (and supporting Directives) below, note 58, 78.

  53. 53.

    See note 13 above.

  54. 54.

    See note 26 above.

  55. 55.

    Wyatt and Dashwood 1987, 18, 29–30, 205–6; Burrows 1987, 240–1; Kapteyn and Van Themaat 1989, 377, 354, 414; Leleux 1976, 83; Barents 1981, 271, 275; March Hunnings 1975, 170; Sundberg-Weitman 1977, e.g., 36. 163–4; Halsbury's Laws of England, 4th edn, 1986, Vols. 51–2, Paras. 3.05. 15.13. The Janssen van Raay Report, note 10 above, clearly assumes horizontal direct effect.

  56. 56.

    Evans 1986, 510, 526.

  57. 57.

    For analysis and conclusion to this effect, see Quinn and MacGowan 1987, 163. For the Commission's similar view, see, e.g., Written Question 835/82 OJ 1983 C 93/1.

  58. 58.

    See below, Sect. 2.3.3.2. Analysis is not here devoted to Art. 119 EEC. This provision is also horizontally directly effective, which demonstrates that there is no reason in principle why Community rules forbidding discrimination should not be enforceable against private employers. Art. 119, however, appears in the Part of the Treaty setting out the Policy of the Community, in contrast to Art. 48, which is included in the Part entitled ‘Foundations of the Community’.

  59. 59.

    See, e.g., Case 30/77 Bouchereau [1977] ECR 1999, [1977] 2 CMLR 800. Wyatt and Dashwood 1987, 186–95.

  60. 60.

    Cf. similar arguments advanced in respect of Art. 36 by Quinn and MacGowan 1987, 163, 176–7.

  61. 61.

    See Sect. 2.3.2.1 above.

  62. 62.

    Case 175/78 Saunders [1979] ECR 1129. For analysis, see Greenwood 1987, 185, 193–205; Halsbury's Laws of England, 4th edn., 1986, Vol. 52, Para. 15.10. Cf. reverse discrimination and Art. 30, Cases 80 & 159/85 Nederlandse Bakkerij v. Edah [1986] ECR 3359, [1988] 2 CMLR 113.

  63. 63.

    Quaere the case of a Scottish, Welsh, or Northern Irish player returning from employment in another Member State to play in England; see discussion by Greenwood 1987, 185, 193–205.

  64. 64.

    If an English court were to find the rules unlawful as being in restraint of trade, it seems that the court would be prepared to grant relief on terms which might require the domestic football authorities to refuse to obey the rules of the international governing bodies; see Cooke v. Football Association, The Times, 24 March 1972, discussed by Grayson 1988, 206–7; cf. the more celebrated case relating to cricket. Greig v. Insole [1978] 1 WLR 302. NB: however, the immunity of an employers' association from the doctrine of restraint of trade, s 3(5) Trade Union and Labour Relations Act 1974; considered and held inapplicable in Greig v. Insole, ibid. 359–62.

  65. 65.

    This separate status at international level does not however, constitute objective justification for tying eligibility to play for English clubs in European competition to eligibility for the English national team; the individual player is not a representative in his her own right in club football. See text, at note 28 above, 41.

  66. 66.

    Case 6/72 Continental Can v. Commission [1973] ECR 215, [1973] CMLR 199.

  67. 67.

    See, e.g., Cases 209-13/84 Ministère Public v. Asjes [1986] ECR 1425, [1986] 3 CMLR 173; Case 45/85 Verband der Sachversicherer v. Commission [1987] ECR 405; Goyder 1988, 72–9.

  68. 68.

    Cf. Ninth Report on Competition Policy, Paras. 116–7.

  69. 69.

    The term is not defined for the purposes of the competition rules by the Treaty of Rome; cf. Arts. 52, 58 EEC; Art. 80 ECSC.

  70. 70.

    Goyder 1988, 79–80; Korah 1986, 14–15; Wyatt and Dashwood 1987, 345–7; Whish 1989, 213–5; Bellamy and Child 1987, Para. 2.003; Green 1986, 229 et seq.

  71. 71.

    Cf. A-G Roemer in Case 32/65 Italy v. Council and Commission [1966] ECR 389; ‘[…] apart from legal form or the purpose of gain, undertakings are natural or legal persons which take part actively and independently in business and are not therefore engaged in a purely private activity […]’.

  72. 72.

    An alternative means of reaching the same result would be to deny that such rules concern ‘trade’ within Arts. 85/86.

  73. 73.

    See, e.g., Case 155/73 Sacchi [1974] ECR 409, [1974] 2 CMLR 177 (television broadcasts); Case 172/80 Zeuchner v. Bayerische Vereinsbank [1981] ECR 2021, [1982] 1 CMLR 313 (banking); for further examples, see Bellamy and Child 1987, Para. 2.115.

  74. 74.

    Cf. Case 42/84 Remia v. Commission [1985] ECR 2545, [1987] 1 CMLR 1, Paras. 49–51 of the judgment, individual treated as an ‘undertaking’; Commission Decision. re Unitel OJ 1978 L 157/39, [1978] 3 CMLR 30, where the implication is that the Commission intends to treat opera singers as ‘undertakings’; it is submitted that footballers would not be so classified, because they must integrate into a team and therefore lack independent economic status in the sense of an ‘undertaking’ within Art. 85.

  75. 75.

    Arts. 3(a), 3(c), 8A EEC.

  76. 76.

    Contrast the position under English law, where restrictive labour practices are explicitly excluded from the scope of the statutory provisions – ss 9(6), 18(6) Restrictive Trade Practices Act 1976.

  77. 77.

    See, e.g., Para. 18 of the judgment in case 172/80, note 73 above.

  78. 78.

    Cf. Art. 119 EEC, which concerns labour and clearly covers private employers; cf. note 58 above.

  79. 79.

    Cf. Evans 1986, 540 et seq.

  80. 80.

    See Goyder 1988, Ch. 18; Green 1986, Ch. 14; Whish 1989, 220–l. On the rules of self-regulatory bodies in industry as agreements within Art. 85, see, e.g., four decisions adopted by the Commission on 10 December 1986, OJ 1987 L 19/18-30, [1989] 4 CMLR 287–308. Even non-binding advice given by trade associations has been held within Art. 85, Case 8/72 Cementhandelaren v. Commission [1972] ECR 977, [1973) CMLR 7; on Trade Associations, see Watson and Williams 1988, 121.

  81. 81.

    Case 66/86 Ahmed Saeed Flugreisen, judgment of 11 April 1989.

  82. 82.

    See, e.g., Goyder 1988, 76 et seq; Bellamy and Child 1987, Para. 2.031.

  83. 83.

    Cf. the Opinion of A-G Lenz in Case 311/85 Vlaamse Reisbureaus [1987] ECR 3801, [1989] 4 CMLR 213, 228, Question (B)(a).

  84. 84.

    See, e.g., Commission Decision 82/896 AROW v. BNIC [1983] 2 CMLR 240; fine of 160000 ECU's imposed on National Cognac Industry Board for minimum price fixing; cp. Cases 89/85 et al. Ahlstrom and others v. Commission (Woodpulp Cartel) [1988] 4 CMLR 901, Paras. 24–8, decision declared void in so far as it concerned a trade association (KEA).

  85. 85.

    For a challenge to a Commission decision on the basis that insufficient attention was paid to the distinct spheres of application of Arts. 85 and 86, see Case 97/89 Fabrica Pisana v. Commission, lodged at Court Registry 22 March 1989 [1989] 4 CMLR 569. Note also the link between Arts. 85 and 86 exposed by the Court in Case 66/86 Ahmed Saeed Flugreisen, note 81 above.

  86. 86.

    For discussion in this context, see Goldman 1989, 751–97; cf. responses by Grauer 1990, 71; Roberts 1990, 117.

  87. 87.

    In English company law terms, the Commission will for these purposes ‘pierce the corporate veil’; see Mann 1973, 35, 48. A similar result is achieved In English cartel law by s43(2) Restrictive Trade Practices Act 1976.

  88. 88.

    Case 22/71 Beguelin [1971] ECR 949, [1972] CMLR 81; Case 170/83 Hidrotherm Gerärebau v. Andreoli [1984] ECR 2999; Case 30/87 Bodson v. Pompes Funèbres, 4 MLR 984 (1989); cf. the Commission's decision in Christiani and Nielsen OJ 1969 L 165/12, [1969] CMLR D36, See further, Whish 1989, 239–41; Wyatt and Dashwood 1987, 353–4; Goyder 1988, 82–3; Bellamy and Child 1987, Para. 2.146; Green 1986, 231–4; Van Bael and Bellis 1987, Para. 205.

  89. 89.

    Cf. the US S Ct decision in Copperweld Corp v. Independence Tube Corp 467 US 752 (1984); parent corporation and wholly owned subsidiary held legally incapable of conspiring with each other for the purposes of s 1 Sherman Act.

  90. 90.

    It is submitted that this view accords with Goldman's ‘Synthesis and Proposed Analysis’ in the US context, in Goldman 1989, 789–96. Note that if, in conformity with the arguments of Grauer and Roberts, note 86 above, considered under Art. 86, the League(s) would only have to justify the rules as a non-abusive if dominance is established: quare the relevant market for these purposes – football, sport, or entertainment generally.

  91. 91.

    Cp KEA, which did not play a separate role in the agreement in Case 89/85 et al. Ahlstrom and others v. Commission note 84 above with the result that the Commission decision was annulled in so far as it applied to KEA.

  92. 92.

    Walrave and Koch, note 13 above.

  93. 93.

    A striking example is found in the area of Selective Distribution, see Case 26/76 Metro v. Commission [1977] ECR 1875, [1978] 1 CMLR l (on which see Goebel 1987, 605).

  94. 94.

    This has been the subject of extensive academic examination. For recent analysis, see, e.g., Whish and Sufrin 1987, 1; Green 1988, 195.

  95. 95.

    Section 2.3.2.1 above.

  96. 96.

    Section 2.3.3.3 below.

  97. 97.

    Case 127/73 BRT v. SABAM [1974] ECR 51, 62; [1974] 2 CMLR 231, 271.

  98. 98.

    Goyder 1988, Ch. 8; Whish 1989, 253 et seq.; Wyatt and Dashwood 1987, 379 et seq.; Bellamy and Child 1987, Ch. 3.

  99. 99.

    Apart from the limited number of agreements covered by Art. 4(2) Reg. 17/62, which may be exempted without notification. The list in Art. 4(2) has no application to the discriminatory player rules under investigation.

  100. 100.

    Section 2.3.3.1 above.

  101. 101.

    The word ‘consumer’ should not be construed narrowly to cover only the end user. The French word ‘ultilisateur’ possesses the broader meaning which more accurately reflects Commission practice in relation to the second positive condition.

  102. 102.

    Case 61/80 [1981] ECR 851.

  103. 103.

    [1989] 4 CMLR 338.

  104. 104.

    Cf. note 3 above and accompanying text on the subject of the restrictive rules of the English Football League. Note also that the residence requirement lacks objective justification; cf. note 35 above and accompanying text.

  105. 105.

    See, e.g., Case 7/82 GVL v. Commission [1983] ECR 483, [1983] 3 CMLR 645; Van Bael and Bellis 1987, Para. 908, Bellamy and Child 1987, Para. 8.060.

  106. 106.

    See note 13 above.

  107. 107.

    See note 10 above.

  108. 108.

    Although certain minor anomalies exist; e.g., Berwick Rangers' home ground is in England, although they play in the Scottish League; Derry City's home ground is in Northern Ireland, although they play in the Republic's League of Ireland.

  109. 109.

    See note 10 above, Para. 16.

  110. 110.

    ‘To allow free movement of footballers would certainly have a devastating effect on the British game. Already clubs in France and West Germany and Belgium, quite apart from Spain and Italy, pay much higher salaries than our own […] It is easy to foresee the departure of most of our leading players.’ (Brian Glanville, World Soccer, May 1987, 22).

  111. 111.

    See the Resolution tabled by MEPs Ephremidis, Adamou, and Alavanos, Doc B 2-1547/86, Annex IV to the Janssen van Raay Report, note 10 above; cf. Hilf 1984, 521.

  112. 112.

    Sects. 2.3.2.1 and 2.3.3.1 above.

  113. 113.

    See Sect. 2.2, above.

  114. 114.

    See the broad approach of the European Court in decisions such as Case 8/72 Cementhandelaren v. Commission [1972] ECR 977, [1973] CMLR 7 (conduct on the Dutch market alone had effects on other national markets within the Community). The requirement of an effect on inter-State trade is plainly not construed as a major obstacle to Community competence. For analysis, see Goyder 1988, Ch. 7; Whish 1989, 242–9; Wyatt and Dashwood 1987, 375; Bellamy and Child 1987, Para. 2.116 et seq.

  115. 115.

    Case 19/77 Miller [1978] ECR 131, Para. 15. See also Case 61/80 Cooperatieve Stremsel- en Kleurselfabriek v. Commission [1981] ECR 351, Para. 14, which refers to the need to show ‘a sufficient degree of probability’. In both cases, the Commission discharged its burden. See further Bellamy and Child 1987, Para. 2.119; Van Bael and Bellis 1987, Para. 222; Green 1986, 238.

  116. 116.

    Cf. Case 180/83 Moser [1984] ECR 2539 and discussion by Greenwood 1987, 185, 199, 203.

  117. 117.

    See note 26 above.

  118. 118.

    Here is not the place for analysis of the debate about the distinction between ‘direct applicability’ and ‘direct effect’, see Winter 1972, 425. Quaere whether the phrase is of value in relation to Articles of the Treaty, see Halsbury's Laws of England, 4th edn., 1986, Vol. 51, Para. 3.41.

  119. 119.

    Cf. in respect or EEC Regulations. Case 39/72 Commission v. Italy [1973] ECR 101. See Hartley 1988, 195 et seq. Contrast EEC Directives, which require domestic implementation (Art. 189 EEC).

  120. 120.

    Cases 209-13/84 Ministère Public v. Asjes [1986] ECR 1425, [1986] 3 CMLR 173; Case 311/85 Vlaamse Reisbureaus [1987] ECR 3801, [1989] 4 CMLR 213. See Slot 1987, 179; Whish 1989, Ch. 9(6).

  121. 121.

    Cf. from the perspective of remedies, the Court's unwillingness to grant a ‘mandatory injunction’ against a State in Art. 169 proceedings; see Hartley 1988, 300.

  122. 122.

    See the Report itself, note 10 above, Para. 11.

  123. 123.

    On enforcement, see Whish 1989, Ch. 10; Wyatt and Dashwood 1987, Ch. 16; Korah 1986, 34; Kerse 1988, 60–6; Bellamy and Child 1987, Ch. 12.

  124. 124.

    Arts. 15, 16, Reg. 17/62.

  125. 125.

    Van Bael 1986, 61; more than 95 per cent of cases are terminated by ‘settlement’, the remainder by formal decision. See also Waelbroeck 1986, 268; Green 1986, 304 et seq.

  126. 126.

    Evans 1986, 510–48.

  127. 127.

    Written Question 154/87 OJ 1988 C 46/7. The Commission's preferred inactivity does not exclude the possibility that the clubs may proceed before national courts on the basis that their directly effective Community law rights of free movement have been infringed. However, the only litigation pursued in this instance was based on English law and it failed; see Evans 1986, 529.

  128. 128.

    Grayson 1988, 211–2.

  129. 129.

    See note 10 above.

  130. 130.

    Cf. Resolution tabled by MEPs Ford and Stewart (Doc 2 – 1167/84, Annex I to the Janssen van Raay Report, note 10 above) ‘[…] demands that a full investigation […] be undertaken before premature decisions are taken that might (a) damage further an industry in severe decline, and (b) damage national and Community prestige at large, hidden, economic cost’.

  131. 131.

    For analysis, see Schermers 1983, Paras. 341–5, 434; Hartley 1988, 300–2, 390–2.

  132. 132.

    Case 14/78 [1978] ECR 2497; see Hartley 1988, 300–4, 464–5.

  133. 133.

    Case 1/75 [1975] ECR 1171.

  134. 134.

    See note 132 above, 2515–6.

  135. 135.

    See, e.g., Kawasaki [1979] 1 CMLR 448, where the investigation was prompted by the complaint of an individual consumer.

  136. 136.

    Case 26/76 Metro v. Commission [1977] ECR 1875, [1978] 2 CMLR 1.

  137. 137.

    As in, e.g., Cases 142 and 156/84 BAT and Reynolds v. Commission [1988] 4 CMLR 24.

  138. 138.

    For fuller analysis, see Kerse 1988, 60–6; Weatherill 1989, 47.

  139. 139.

    Case 125/78 GEMA v. Commission [1979] ECR 3173, [1980] 2 CMLR 177; and see Cases 142 and 156/84 note 137 above.

  140. 140.

    It should always be remembered that if the Commission refuses to act on the complaint, the aggrieved party may have recourse to the national courts, making use of the direct effect of the provisions in question.

  141. 141.

    Case 141/78, note 132 above; the issues are analogous even though the specific powers under Reg. 17/62, rather than the general powers under Art. 169 are in issue.

  142. 142.

    See Bridge 1984, 28.

  143. 143.

    First elaborated in Case 45,76 Comet v. Produktsch. [1976] ECR 2043, [1977] 1 CMLR 533; Case 3376 Rewe v. Landwirtschaftskammer [1976] ECR 1989, [1977] 1 CMLR 533, and since regularly repeated, see, e.g., Case 130/79 Express Dairy Foods v. Intervention Board [1980] ECR 1887, [1981] 1 CMLR 451. See Barav and Green 1986, 55; Oliver 1987, 881.

  144. 144.

    ‘Impossible in practice’ [praktisch unmöglich] is the phrase used in Rewe, note 143 above. In Case 199/82 San Giorgio [1983] ECR 3595, [1985] 2 CMLR 658, the Court uses the phrase ‘virtually impossible or excessively difficult’ in the course of its judgment, but reverts to ‘virtually impossible’ in its ruling; quaere if this is intended to amend the formulation in Rewe.

  145. 145.

    See, e.g., the cases mentioned at note 151 below.

  146. 146.

    S 2(1). The phrase may be taken to accord with the notion of directly effective provisions in the jurisprudence of the European Court; see Hartley 1988, 239–40.

  147. 147.

    R v. Panel on Take-Overs and Mergers, ex p Datafin [1987] QB 815.

  148. 148.

    See Law v. National Greyhound Racing Club Ltd [1983] 1 WLR 1302; cf. Beloff 1989, 95.

  149. 149.

    Eastham v. Newcastle United [1964] Ch. 413.

  150. 150.

    [1975] AC 396.

  151. 151.

    See particularly Baurgoin v. MAFF [1986] QB 716, [1985] 3 WLR 1027 (Art. 30); Garden Cottage Foods v. Milk Marketing Board [1984] AC 130, [1983] 3 WLR 143 (Art. 86).

  152. 152.

    See, e.g., Barav and Green 1986, 143 (and see references at 96 note 175); Oliver 1987, 881; Steiner 1987, 102; Davidson 1985, 178; Meade 1986, 101; Picanol 1983, 1; Goyder 1988, 76; Kerse 1988 (and see references at note 93, 316).

  153. 153.

    ‘Comfort letters’ are not binding on national courts, but may be taken into account; Case 253/78 Guerlain [1980] ECR 2327, [1981] 2 CMLR 94, on which see Korah 1981, 14.

  154. 154.

    See Sect. 2.3.3.3 above.

  155. 155.

    Cf. President Gorbachev's plea for a ‘common European home’ and the instability of ‘Eastern’ Europe.

  156. 156.

    See note 13 above, ECR 1425.

  157. 157.

    Sections 2.3.2.2 and 2.3.3.1.

  158. 158.

    Section 2.3.3.4.

  159. 159.

    Sections 2.3.2.3 and 2.3.3.3.

  160. 160.

    This may embrace the commercial activities of the State under Arts. 85/86 or, in the case of public undertakings, Art. 90. See Goyder 1988, 80, 366–71; Whish 1989, Ch. 9(6).

  161. 161.

    See Sect. 2.3.3.1, note 75 and accompanying text.

  162. 162.

    See particularly Para. 19 of the Court's judgment in Walrave and Koch, note 13 above.

  163. 163.

    Art. 7(4) Reg. 1612/68; see note 52 above.

  164. 164.

    Case 73/79, [1980] ECR 1533. See further, Wyatt and Dashwood 1987, 473–4; Bellamy and Child 1987, Para. 14–32.

  165. 165.

    See note 50 above, 56 and accompanying text.

  166. 166.

    Section 2.3.3.4.

  167. 167.

    Sections 2.3.2.3 and 2.3.3.3.

  168. 168.

    Section 2.4.

  169. 169.

    See note 164 above.

  170. 170.

    Cf. discussion of possible conflict between Arts. 30 and 85 in Wyatt and Dashwood 1987, 5, 12–3. See also in this respect Bellamy and Child 1987, Para. 772; ‘The Court in Nungesser [Case 258/78 [1982] ECR 2015] was clearly concerned that parties should not seek to retrieve by contract what would be prohibited under Articles 30 and 36’. See similarly, Case 58/80 Dansk Supermarked v. Imerco [1981] ECR 181, [1981] 3 CMLR 590, Para. 17 of the judgment. For analysis of these issues, see Turner 1983, 103.

  171. 171.

    Section 2.3, above, summarized at Sect. 2.3.4.

  172. 172.

    Section 2.3.3.3.

  173. 173.

    Section 2.4 above.

  174. 174.

    Section 2.3.2.3 above. The problem of the inflexibility of Art. 48 is encountered even if an Art. 86 analysis of the status of the League is preferred, note 86 above, 90.

  175. 175.

    Section 2.6.3.1.

  176. 176.

    Cf. Evans 1986, 510–48, text at note 125.

  177. 177.

    See note 170 above. See especially Turner 1983, 114–6, who concludes that ‘Further discussion of the relationships between the different Treaty provisions would be worth while’.

  178. 178.

    This is not to suggest that a simple and satisfactory answer will be forthcoming; cf., e.g., the formidable (though, in comparison to the test, less fundamental) difficulties caused in national courts applying EEC competition law by the fact that Arts. 85(1) and (2) are directly effective, whereas Art. 85(3) is not; see, e.g., Greaves 1987, 256 and cf. note 153 above on ‘comfort letters’ before national courts.

  179. 179.

    See, e.g., Grayson 1988, 35–7, 260–8; Beloff 1989, 95.

  180. 180.

    See above note 13.

References

  • Barents (1981) CML Rev 18S:271, 275

    Google Scholar 

  • Barav and Green (1986) YEL 6:55, 96

    Google Scholar 

  • Bellamy and Child (1987) Common market law of competition, 3rd edn, Sweet & Maxwell, Para. 14–32, Para. 772, Para. 2.003, Para. 2.031, Para. 2.115, Para. 2.116 et seq., Para. 2.119, Para. 2.146, Ch. 3, Para. 8.060, Ch. 12

    Google Scholar 

  • Beloff (1989) Public Law, 95

    Google Scholar 

  • Bridge (1984) EL Rev 9:28

    Google Scholar 

  • Burrows (1987) Free movement in EC law, Oxford University Press, 131, 240-1

    Google Scholar 

  • Davidson (1985) ICLQ 34 :178

    Google Scholar 

  • Evans (1986) LQR:510, 510-48, 526, 529, 540 et seq, Para. 17

    Google Scholar 

  • Goebel (1987) CML Rev 24:605

    Google Scholar 

  • Goldman (1989) Sports, antitrust and the single entity theory. TUL L Rev 63:751–97, 789–96

    Google Scholar 

  • Goyder (1988) EEC competition law, Oxford University Press, 72-9, 76 et seq., 79-80, 80, 82–3, 366–71, Ch. 7, Ch. 8, Ch. 18

    Google Scholar 

  • Grauer (1990) TUL L Rev 64:71

    Google Scholar 

  • Grayson (1988) Sport and the law. Butterworths, 35–7, 206–7, 211–2, 260–8

    Google Scholar 

  • Greaves (1987) ECLR 256

    Google Scholar 

  • Green (1986) Commercial agreements and competition law, Graham and Trotman, 229 et seq, 231–4, 238, 304 et seq., Ch. 14

    Google Scholar 

  • Green (1988) ECLR 195

    Google Scholar 

  • Greenwood (1987) YEL 7:185, 193–205, 199, 203

    Google Scholar 

  • Hartley (1988) The foundations of EC law, 2nd edn. Oxford University Press, 195 et seq, 239–40, 278–80, 300, 300–2, 300–4, 390–2, 464–5

    Google Scholar 

  • Hilf (1984) Die Freizügigkeit des Berufsfussballspielers innerhalb der EG. Neue Juristische Wochenschrift, 517, 520, 521 [the translation is the author’s own]

    Google Scholar 

  • Kapteyn and Van Themaat (1989) The law of the ECs, 2nd edn, Kluwer, 377, 354, 414

    Google Scholar 

  • Kerse (1988) EEC Antitrust procedure, 2nd edn. ELC, 60–6

    Google Scholar 

  • Korah (1981) EL Rev 6:14, 34

    Google Scholar 

  • Korah (1986) EEC Competition law and practice, 3rd edn. ESC 14–15

    Google Scholar 

  • Leleux (1976) in Jacobs F, ed, European law and the individual. North-Holland, 83

    Google Scholar 

  • Mann (1973) ICLQ 22:35, 48

    Google Scholar 

  • March Hunnings (1975) JBL, 170

    Google Scholar 

  • Meade (1986) NILQ 37:101

    Google Scholar 

  • O’Keeffe (1985) YEL 5:93

    Google Scholar 

  • Oliver (1987) MLR 50:881

    Google Scholar 

  • Pescatore (1987) CML Rev 24:9–18

    Google Scholar 

  • Picanol (1983) LIEI 2:1

    Google Scholar 

  • Quinn and MacGowan (1987) EL Rev 12:163, 176–7

    Google Scholar 

  • Rasmussen (1986) On law and policy in the European Court of Justice. Nijhoff, 442–50

    Google Scholar 

  • Roberts (1990) TUL L. Rev, 64:117

    Google Scholar 

  • Schermers (1983) Judicial protection in the ECs, 3rd edn. Kluwer, Paras. 89–94, Paras. 341–5, 434, Para. 611 et seq.

    Google Scholar 

  • Slot (1987) EL Rev 12:179

    Google Scholar 

  • Steiner (1987) EL Rev 12:102

    Google Scholar 

  • Steiner (1988) Textbook on EEC law, Blackstone, 233–234

    Google Scholar 

  • Sundberg-Weitman (1977) Discrimination on grounds of nationality, North-Holland, 36, 70–85, 109–11, 163–4

    Google Scholar 

  • Treitel (1987) The law of contract, 7th edn. Stevens, 349

    Google Scholar 

  • Turner (1983) EL Rev 8:103, 114–6

    Google Scholar 

  • Ubertazzi (1976) RTDE, 635, 644–7

    Google Scholar 

  • Van Bael (1986) CML Rev 23:61

    Google Scholar 

  • Van Bael and Bellis (1987) Competition law of the EEC, CCH, Para. 205, Para. 222, Para. 908

    Google Scholar 

  • Van Staveren (1989) 18th Colloquy on European law, sport and the law. Proceedings published by the Council of Europe, Strasbourg, 67

    Google Scholar 

  • Waelbroeck (1986) EL Rev 11:268

    Google Scholar 

  • Watson and Williams (1988) YEL 8:121

    Google Scholar 

  • Weatherill (1988) EL Rev 13:87, 100

    Google Scholar 

  • Weatherill (1989) The company lawyer 10:47

    Google Scholar 

  • Whish (1989) Competition Law, 2nd edn., Butterworths, 213–5, 220-l, 239–41, 242–9, 253 et seq, Ch. 9(6), Ch. 10

    Google Scholar 

  • Whish and Sufrin (1987) YEL 7:1

    Google Scholar 

  • Winter (1972) CML Rev 9:425

    Google Scholar 

  • Wyatt and Dashwood (1987) The substantive law of the EEC, 2nd edn. Sweet & Maxwell, 5, 12–3, 29–30, 175, 176–80, 186–95, 205–6, 206–7, 345–7, 353–4, 375, 379 et seq, 473–4, Ch. 16

    Google Scholar 

Download references

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    Stephen Weatherill

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Weatherill, S. (2014). Discrimination on Grounds of Nationality in Sport. In: European Sports Law. ASSER International Sports Law Series. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-90-6704-939-9_2

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