Kommentar: Simutenkov gegen spanischen Fußballverband

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Auf der Grundlage einer Bestimmung des Partnerschaftsabkommens
zwischen der EU und Russland hätten auch Nicht-EU-Bürger einen
Anspruch auf Freizügigkeit, so Juraprofessor Dr. Richard
Parrish.

(ECJ press release No 03/35, 11 Jan. 2005) – Opinion of Advocate
General Stix-Hackl in case C-265/03 – Igor Simutenkov v Spanish
football federation

As is often the case in these matters, all roads lead to Bosman.
Here the court held that nationality restrictions in sport are
incompatible with Article 39 of the Treaty (free movement of
workers). That has generally been understood. However, it causes
surprise that the rights of free movement enjoyed by EU nationals
can also be relied on by non EU nationals. This is not so well
understood. In essence, the scope of Article 39 has been extended
to non-EU nationals through the existence of international
agreements between the EU and third states. Some of these
agreements contain non-discriminatory provisions. For example,
Article 23 of the EU / Russian agreement states that ’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‘. 

Article 23 is a clear and precise provision, the effect of which
is not dependent on the adoption of further measures. Therefore,
Russians legally employed within the territory of a member state
should be able to rely on this provision in the course of their
employment. This was already established in Kolpak, a case
mirroring that of Simutenkov. Thus as Kolpak has already transposed
the principles of Bosman into international agreements containing
non-discrimination provisions, the view of the Advocate General in
Simutenkov is hardly surprising. By requiring an EU-licensed player
to be either Spanish or a national of another EU state, the Spanish
Football Federation was clearly imposing a restriction on Igor
Simutenkov not endured by Spanish nationals – in breach of Article
23.  

Nevertheless, we should not get too exited at what this all
means. The free movement principles enunciated in Bosman have not
been transposed into international agreements in their totality.
Kolpak and Simutenkov relate to the rights enjoyed by non-EU
nationals who already had access to the national (in Simutenkov’s
case Spanish) labour market. It does not extend to them a general
right to circulate freely within the EU. Having said this, some
sports may be affected more than others. In particular, English
cricket is having to face up to the issues posed by ‚Kolpak
cricketers‘ – non English / EU players who must not be considered
as ‚overseas players‘. This leaves the whole basis of nationality
restrictions in cricket exposed and with the game so dependent on
the success of the national team, any measure which undermines the
development of players qualified to represent England is likely to
be viewed with dread.  

Dr Richard Parrish
Reader in Law
Edge Hill College

Dr Parrish is the author of ‚Sports Law and Policy in the
European Union‘, Manchester University Press (2003).

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