It has long been understood that sport is subject to EU law whenever it is practiced as an economic activity (see Case 36/74 Walrave and Koch ). In this regard, EU law does not touch nationality-based rules for selection to national sports teams (see also Walrave paragraph 8) but nationality discrimination in professional club sport is incompatible with the Treaty unless justified (see Case C-415/93 Bosman ). Sports bodies have assumed that they are free to determine eligibility to amateur sports events but this assumption much change following the European Court’s ruling in TopFit (Case C-22/18 TopFit ).
Daniele Biffi, an Italian national living in Germany and a member of German athletics club TopFit, competed in the amateur senior German championships, organised by the German Athletics Association. A rule change made by the German Athletics Association in 2016 meant that non-nationals, such as Mr Biffi, were fully or partly excluded from all age categories as these places were reserved to those with German nationality – an example of unlawful nationality discrimination according to Mr Biffi. As amateur sport is, by and large, a non-economic activity, many expected Mr Biffi to lose his challenge given the view expressed by the Court in Walrave.
In a ground-breaking judgment, the European Court held that as the EU was developing into a Citizen’s Europe and as accessing sport is an important means of a migrant integrating themselves into a new society, EU law prohibits such nationality discrimination in amateur sport unless those rules are justified by objective considerations which are proportionate to the legitimate objective pursued.
The judgment is important for a number of reasons, none more so than the explicit recognition that EU sports policy, with its focus on the social importance of sport as expressed through Article 165 TFEU, actually means something tangible for EU citizens and places duties on amateur sports bodies. Sports bodies who regulate amateur sport should review their nationality-based rules and accept the principle of ‘open-access’ to sport unless there are legitimate sporting reasons why non-nationals should be excluded. The fact that they are not carrying out economic activity no longer removes these bodies from legal scrutiny.