Topfit & Biffi v. Deutscher Leichtathletikverband.
(2019)
FREE MOVEMENT
SPORT RULES ISSUED BY A PRIVATE ENTITY CAN FALL UNDER EU LAW
WHAT DOES THIS CASE MEAN FOR ME?
Because of this case you, as a European citizen can join a sports association after your move to another European state under the same conditions as the nationals of this host state. However, it is possible that you are not allowed to participate in some competitions, like the national championship because it is legitimate that the host state wants this winner to have the host state’s nationality. Yet, you can never be excluded from all competitions. Also, the rules that restrict your possibility to compete need to be necessary and proportionate.
FACTS IN A FUN STORY
Once upon a time there was an Italian guy named Biffi who decided to move to Germany in 2003 for the delicious bratwursts. As he quickly gained weight, he decided to join a German sports club to get rid of them. For 15 years he ate a lot of sausages, which he then worked off during the various races he took part in with his German club.
But suddenly something terrible happens: the German National Athletics Federation (the head body for all German sports associations) decides (2017) that only people with German nationality can participate in national sports competitions, because they believe that the German champion should be a German.
With his hands tied, Biffi and his club still try to participate in the national indoor championships but he gets refused. He is allowed to participate in another competition but without a ranking. He can only run a few rounds and even if he is the best, he cannot win because he has a different nationality.
How is he ever going to get rid of his kilos?
He is angry and together with his club he goes to the judge and asks to be allowed to participate in the races without restrictions. The judge refuses, yet he has some doubts about whether the exclusion does not cause unlawful discrimination. The judge also wonders if the fact that Biffi is allowed to participate in some races but without the possibility to classify himself, as well as the exclusion of national titles for him because he does not have the German nationality is a forbidden discrimination.
He will ask these questions to another judge, a judge in the CJEU because the idea of an impermissible discrimination based on nationality comes from European law.
To answer the first judge's questions, the Union judge explains that Biffi started living in Germany thanks to the European rules with the right of free movement of people and freedom of establishment. These rules entail that Biffi was free to move to Germany and choose the leisure activities he wanted without discrimination based on nationality.
The judge also says that the EU recognizes the importance of sports, because engaging in sports can help someone, like Biffi, to better integrate into his new country.
These rules based on non-discrimination need to be respected not only by the German government but also by the German National Athletics Federation. So this means that the new rules restricting Biffi could be illegal unless the German athletics federation can show that the new rules are necessary and proportionate.
The CJEU understands that Germany wants a German as national champion but states that the Federation's regulations cannot go too far and completely exclude Biffi from all games. A complete restriction is thus not possible. Even more, the Federation must be able to justify why Biffi should not be allowed to compete in certain games.
Biffi must now go back to the first judge who will decide whether or not the Federation can objectively justify his exclusion and the new rules. If the federation cannot do this it means that Biffi can participate again right away in all competitions. Yet, if they can justify it, then Biffi will not be allowed to participate in some matches yet at least he will know in advance which ones and why.
Therefore, he knows how many sausages he can eat based on how many races he can join to lose the weight gained.
LEGAL ANALYSIS
Italian citizen (Biffi) who lives in Germany and practices amateur sports at a German club. The German head office sport association changes the rules of participation for some competitions and inserts a German nationality requirement. The Italian citizen claims this is a discrimination.
CJEU:
Personal scope (art. 18 TFEU): Personal scope is okay because he is an Italian and Italy is a European Member State.
Material scope (art. 165(2) TFEU): Discussion but yes because the ability to participate in sport games affects his free movement (art. 21 TFEU). (§67)
→ Rules issued by a private athletic association can fall under EU law because sports are an important factor for integration in a new MS.
→ Rules restricting free movement must be necessary and proportionate. The Court recognized that a nationality requirement can constitute a legitimate aim. However, the proportionality test to determine the existence of a discrimination is left to the national court (§67).