CJUE C‑650/22 / Opinion

Fédération internationale de football association (FIFA) v BZ
Policy area
Free movement and equality
Deciding body
Advocate general
Decision date
30/04/2024
ECLI (European case law identifier)
ECLI:EU:C:2024:375
  • CJUE C‑650/22 / Opinion

    Key facts of the case:

    Reference for a preliminary ruling – Freedom of movement for workers – Prohibitions on agreements – FIFA Regulations on the Status and Transfer of Players – Early termination of a contract concluded between a club and a player – Regulations penalising another club which employs the player in question – Prohibition on issuing the certificate required for the transfer of that player to that other club

    Outcome of the case:

    In the light of the foregoing, I propose that the Court reply to the questions referred by the Cour d’appel de Mons (Court of Appeal, Mons, Belgium) as follows:

    (1)      Article 101 TFEU must be interpreted as precluding rules that have been adopted by an association responsible for organising football competitions at world level and implemented both by that association and by its member national football associations, providing that a player and a club wishing to employ him or her are jointly and severally liable in respect of the compensation due to the club whose contract with the player has been terminated without just cause and providing that an association to which a player’s former club belongs is entitled not to deliver the international transfer certificate required if the player is to be employed by a new club, where there is a dispute between that former club and the player, if it is established, first, that those decisions by associations of undertakings are liable to affect trade between Member States and, second, that they have either as their object or their effect the restriction of competition between professional football clubs, unless, in the second of those scenarios, it is demonstrated, through convincing arguments and evidence, that they are both justified by the pursuit of one or more objectives that are legitimate and strictly necessary for that purpose.

    (2)      Article 45 TFEU must be interpreted as precluding the application of rules that have been adopted by an association responsible for organising football competitions at world level and implemented both by that association and by its member national football associations:

    –        providing that a player and a club wishing to employ him or her are jointly and severally liable in respect of the compensation due to the club whose contract with the player has been terminated without just cause, unless it can be proven that it is genuinely possible, within a reasonable time frame, not to apply this principle where it can be established that the new club was not involved in the premature and unjustified termination of the player’s contract;

    –        providing that an association to which a player’s former club belongs is entitled not to deliver the international transfer certificate required if the player is to be employed by a new club, where there is a dispute between that former club and the player, unless it can be proven that effective, genuine and expeditious provisional measures can be taken in a situation where there has been a mere allegation that the player has not complied with terms of his or her contract and that the club was forced to terminate the contract because of the player’s alleged failure to comply with his or her contractual obligations.

  • Paragraphs referring to EU Charter

    73. Pursuant to Article 51(1) of the Charter, which lays out the Charter’s field of application, the Charter’s provisions are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law.

    74. FIFA is not stricto sensu a Member State implementing Union law.

    75. However, as I have explained elsewhere, in a situation such as that of the present case, private entities such as FIFA are functionally comparable not to an EU institution, but to a Member State seeking to justify a restriction of a fundamental freedom. (51) The Court has held consistently, since the judgment in Walrave and Koch, (52) that Treaty provisions apply to an entity such as FIFA. Such an entity is treated as if it were a Member State seeking to justify a restriction of a fundamental freedom (or, as the case may be, a restriction of competition). As a consequence, it is only logical that, in such a situation, the provisions of the Charter should apply to it in the sense that it is bound by them. In other words, if the Court did not have an issue with applying Article 45 TFEU horizontally to an entity such as FIFA, the same must apply with respect to the application of the Charter. (53)

    76. As for the terms ‘implementing Union law’, these have been clarified in the Court’s judgment in Åkerberg Fransson, (54) where the Court relied on the explanations to the Charter and held that the requirement to respect fundamental rights defined in the context of the European Union is only binding on the Member States when they act in the scope of Union law. (55) The Court went on to hold that, since the fundamental rights guaranteed by the Charter must be complied with where national legislation falls within the scope of Union law, situations cannot exist which are covered in that way by Union law without those fundamental rights being applicable. The applicability of Union law entails applicability of the fundamental rights guaranteed by the Charter. (56)

    77. It is my contention that such a ‘mirror-principle’ is fully in keeping with the rationale of Article 51 of the Charter, which is to ensure that, within the scope of Union law, the rights contained in the Charter are observed.

    78. Moreover, I should like to recall the long-standing case-law, both before (57) and after (58) the entry into force of the Charter, to the effect that, when a Member State seeks to rely on a ground of justification in the context of a restriction of a fundamental freedom, that Member State must comply with the Union’s fundamental rights.

    79. Based on the above, I see no reason why in this particular instance the provisions of the Charter should not be applied in the sense that individuals can rely on them against an entity such as FIFA. (59)

    80. Lastly, I should like to make another short remark on methodology. In the light of the foregoing, it is my contention that the appropriate place to examine the compatibility of the contested provisions with the Charter is within the analysis of the justification put forward by FIFA and the URBSFA. In this respect I fully concur with the view of Advocate General Saugmandsgaard Øe that ‘when the Court examines national legislation by reference to the freedoms of movement, the alleged infringement of a fundamental right guaranteed by the Charter cannot be examined independently of the question of the breach of those freedoms’. (60) Suffice it to add that this is also the way the Court appears to me to have proceeded to date: questions involving fundamental rights in free movement cases are dealt with within the justification of a restriction. (61)
    ...

    ...

    82. First, in a case such as the present one, the (fundamental and individual) subjective economic right provided for in Article 45 TFEU (63) is to be considered as functionally equivalent to Article 15 of the Charter, (64) in consequence of which I will limit myself to the considerations set out below, for the sake of completeness. (65) In this connection, I intend to point to potential problems, which will need to be resolved by the Court at some stage.

    83. First, as is already apparent from the wording of Article 15(1) of the Charter, it provides for the right to choose and pursue an occupation or profession. (66) Given that the contested provisions concern the exercise of the profession of footballers, they fall within the scope of protection afforded by Article 15(1) of the Charter.

    84. Secondly, as for a possible limitation of the right to exercise a profession, Article 52(1) of the Charter stipulates that any limitation on the exercise of the rights under the Charter must be provided for by law and respect the essence of those rights. Subject to the principle of proportionality, limitations may be imposed only if they are necessary and genuinely pursue objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.

    85. First, it must be examined whether the RSTP is to be regarded as a ‘law’ within the meaning of Article 52(1) of the Charter. (67) Here, the intuitive and, in my view, ultimately convincing answer would be that, on an abstract level, an act such as the RSTP can constitute a ‘law’, the reasoning here again being analogous to that under Article 51(1) of the Charter, developed above: once an act of FIFA or the URBSFA is considered to be within the scope of the Charter in a situation such as that of the present case, then that act is to be considered a ‘law’ within the meaning of Article 52(1) of the Charter. I would, in other words, opt for a functional approach as to the definition of the term ‘law’ and consider the RSTP as a ‘material law’, given that it is formulated and intended to be applicable in an abstract manner. While I am aware of the constitutional significance of such a finding, which would surely merit a profound examination in a situation where Article 15 of the Charter is not, as in the case at issue, ‘consumed’ by Article 45 TFEU, I do believe that this is a consequence of the extension of the latter provision to entities such as FIFA.

  • Paragraphs referring to EU Charter (original language)