Case C_265_03_Igor Simutenkov_CMLR_2008
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Case C-265/03, Igor Simutenkov v. Ministerio de Educación y Cultura, Real Federación Española de Fútbol, [2005] ECR I-2579
1.Introduction
In the Simutenkov case, the Court of Justice was asked to determine whether a Russian professional footballer playing for a Community club has a right to working conditions equal to those enjoyed by his Community fellow players. The Court was thereby quizzed on a possible extension of its celebrated Bosman jurisprudence to the context of the Partnership and Cooperation Agreement (PCA) with Russia.1
It was the first time the Court was given the opportunity to interpret the provisions of this 10 year-old PCA, a specific type of mixed agreement linking the Community and its Member States to most post-Soviet countries.2 While this in itself makes the ruling significant for anyone interested in EU-Russia relations, Simutenkov is also notable more generally for at least two additional reasons. First, it confirms the trend whereby the Court’s acknowledgment of direct effect of EC bilateral agreements’ provisions is the rule rather than the exception, notwithstanding potential differences of objectives and nature between the different accords. Secondly, and in this context, the judgment raises questions as to the way in which the Court approaches the objectives and nature of an agreement to interpret its provisions and their effect.
2.Factual and legal background
Igor Simutenkov is a Russian national lawfully employed as professional football player by the Spanish club Deportivo Tenerife. In order to participate in the different national competitions as a member of a Spanish club, he must hold a licence from the Royal Spanish Football Federation (Real Federación
1.More specifically: Partnership and Cooperation Agreement between the European Communities and their Member States, of the one part, and the Russian Federation, of the other part, O.J. 1997, L 327/1.
2.See e.g. Maresceau, “Bilateral Agreements concluded by the European Community”, 309
Recueil des cours de l’Académie de Droit International/Collected Courses of the Hague Academy of International Law (2006), pp. 125–451 at 423–448; Petrov, “The Partnership and Cooperation Agreements with the Newly Independent States” in Ott and Inglis (Eds.), European Enlargement Handbook (Asser Press, 2002), p. 175. Hillion, “Partnership and cooperation agreements between the EU and the NIS of the ex-Soviet Union”, 3 EFA Rev. (1998), 399.
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Española de Fútbol - RFEF). But, the Federation rules foresee that, as a national from a country outside the European Economic Area (EEA), he cannot hold the same licence as a national from an EEA State. These rules also stipulate that in national competitions, only a limited number of non-EEA players may be employed by Spanish clubs and in each game, only a limited number of non-EEA players may be fielded simultaneously.
Aware of the Partnership and Cooperation Agreement, and more particularly of its provisions on “Labour Conditions”, Mr Simutenkov applied to the RFEF to convert his non-EEA licence into a licence identical to that held by EEA players. He relied in particular on Article 23 of the PCA which provides in its first paragraph 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.”
The RFEF however refused to upgrade Mr Simutenkov’s licence, in view of its General Regulations and an agreement it had concluded with the national professional football league. Simutenkov challenged this refusal before the Central Court for Contentious Administrative Proceedings (Juzgado Central de la Contencioso Administrativo) invoking his PCA right to equal treatment with respect to working conditions.3 The action being dismissed, he lodged an appeal to the National High Court (Audiencia Nacional) which decided to refer a question to the European Court of Justice on the interpretation of the PCA. The Audiencia Nacional notably asked the Court of Justice to determine whether a rule of a sports federation whereby “clubs may use in competitions at national level only a limited number of players from countries outside the European Economic Area” is compatible with the provisions of Article 23 PCA.
3. As recalled in A.G. Stix-Hackl’s Opinion (paras. 7–9), Mr Simutenkov first challenged the RFEF’s refusal before the Social Court (Juzgado de lo Social) No 3 Santa Cruz de Tenerife, which upheld the action, finding that there had been discrimination in violation of the PCA principle of non-discrimination. However, following a claim relating to a conflict of jurisdiction, the Social Court’s decision did not become final. The Supreme Court (Tribunal Supremo) considered that the matter should be dealt with by the Central Court for Contentious Administrative Proceedings.
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3.Opinion of the Advocate General
3.1. Direct effect of Article 23(1) PCA
Before determining whether the RFEF rules are compatible with the PCA, Advocate General Stix-Hackl checked whether the provisions of Article 23 PCA are “directly applicable”.4 As she recalled, a provision of an agreement between the Community and a non-member country is directly applicable when it contains a clear and precise obligation which is not subject, in its implementation or effect, to the adoption of any subsequent measure.
In the present case, direct effect of Article 23(1) was contested, notably by the RFEF and the Spanish Government, on several grounds: first, the proviso contained in Article 23(1) PCA according to which the obligation therein is “[s]ubject to the laws, conditions and procedures applicable in each Member State”; second, the provisions of Article 27 PCA, which stipulates that Article 23 is to be implemented on the basis of recommendations by the Cooperation Council established by the Agreement; and third, the general Member State’s clause of Article 48 PCA whereby:
“… nothing in the Agreement shall prevent the Parties from applying their laws and regulations regarding entry and stay, work, labour conditions and establishment of natural persons and supply of services, provided that, in so doing, they do not apply them in a manner as to nullify or impair the benefits accruing to any Party under the terms of a specific provision of the Agreement. …”
The “restricted object” of the PCA had also been seen in the literature as an obstacle to the direct applicability of Article 23(1).5
Advocate General Stix-Hackl began by examining the wording of Article 23 PCA, taken in isolation. As allegedly required by the Court’s case law,6 she compared the then ten equally authentic language versions of the agreement and noted that the wording and meaning of Article 23(1) do not correspond in all of them, particularly with respect to the nature of the obligation encapsulated therein. The Danish, German, English, French, Italian and Portuguese, as well as the Russian versions of the PCA suggest that Article 23(1) establishes
4.In Simutenkov, A.G. Stix-Hackl and the Court appear to use “directly applicable” and “directly effective” interchangeably. The present annotation follows this flexible approach.
5.Para 31.
6.A.G. Stix-Hackl refers to Case 283/81, CILFIT, [1982] ECR 3415, para 18, and Case C-72/95, Kraaijeveld and Others, [1996] ECR I-5403.
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an obligation of result, whereas the Dutch, Greek, and, importantly, the Spanish versions point to an obligation of conduct.7
In an interesting analysis, the Advocate General then explored various possible methods to authenticate the correct version ofArticle 23 PCA.Afirst way could be to take the lowest common denominator of all the language versions as the starting point, in which case the PCA should be read as laying down an obligation of conduct. Lacking support from the Court’s case law, or indeed any “convincing arguments”, she gauged the possibility to establish the “clearest text” by eliminating those that are not typical, or versions containing a translation error. Although supported by the case law,8 this second method was found unconvincing in the present circumstances given that not just one text diverged from all the others. A third option could then be that the language versions that form the majority prevail.9 But here too the Advocate General was not persuaded, as the Court’s case law indicates that in certain circumstances the text of a single language version could be favoured over a majority.10 A fourth “quite different” method was preferable in Stix Hackl’s opinion, “namely the method under which one proceeds on the basis of the original text”. As the PCA was initially drafted in English, the English version which foresees that the PCA establishes an obligation of result should be regarded as the authoritative text.11
“In view of the linguistic divergences”, Advocate General Stix-Hackl found it necessary to consider the intention of the parties and the object of the relevant provision, pointing out that such intention is “of decisive importance for the interpretation of Article 23(1)” PCA.12 Examining the documents submitted by the Commission and used for preparing the negotiations of the Agreement, she found that the Parties intended to lay down a “clear obligation going beyond an obligation merely to use endeavours”. That proposition, she wrote, finds further support in the comparison of Article 23 of the PCA with Russia with parallel provisions of the PCAs with Moldova and Ukraine which both contain an obligation of conduct.13
7.Para 15.
8.Case 29/69, Stauder, [1969] ECR 419 (translation error); Case 16/65, Schwarze, [1965] ECR 877, Case 35/75, Matisa, [1975] ECR 1205 and Case 45/83, Ludwig-Maximilians-Univer- sität München, [1984] ECR 267 (atypical texts).
9.The Court has occasionally followed this majority approach: e.g. in Case 55/87, Moksel, [1988] ECR 3845, and Case C-64/95, Lubella, [1996] ECR I-5105.
10.Case 76/77, Dufour, [1977] ECR 2485 and Joined Cases 233/78, 234/78 & 235/78,
Lentes and Others, [1979] ECR 2305.
11.Para 19.
12.Para 22.
13.Para 23. For instance, Art. 24(1) of the PCA with Ukraine provides that: “Subject to the laws, conditions and procedures applicable in each Member State, the Community and the
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On the basis of those elements, Advocate General Stix-Hackl eventually opined that the provision of Article 23(1), taken in isolation, imposes a clear obligation on the Community and the Member States, and therefore has direct effect. Indeed, in view of the Court’s case law on similar provisions of the Europe Agreements (EAs),14 she considered that the proviso “[s]ubject to the laws, conditions and procedures applicable in each Member State” “cannot be interpreted in such a way as to allow [them] to make the application of the principle of non-discrimination set out in that provision subject to conditions or discretionary limitations”, for such an interpretation would render the provision “meaningless and deprive it of any practical effect”.15
Recalling that the “wording of a provision alone is not decisive”, the Advocate General turned to the Agreement’s “subject matter and nature (or essence and purpose or object and context)” to determine whether the direct effect of Article 23, examined in isolation, can be “confirmed”. While the PCA is an “advance” in comparison with the previous EEC trade agreement with Russia,16 it “lags behind” the EA both in terms of substantive content, institutional provisions, and ultimate goal. Still, as the Advocate General recalled, direct effect is neither exclusive to association agreements, nor a fortiori dependent on the agreement’s express reference to the prospect of accession. On the contrary, the Court’s consistent case law regarding EC cooperation agreements e.g. with Morocco and Algeria, suggests that it is sufficient that the Contracting Parties promote overall cooperation, notably in the field of labour, for a provision of that agreement to be capable of governing directly the legal position of individuals. Considering that the PCA objectives correspond in many respects to those cooperation agreements, and noting that the Agreement also displays some common ground with the EA, the Advocate General concluded that the “essence and purpose or object and context of the [PCA] indicate that the provision [of Article 23] has direct effect”.17 Neither Article 27, nor Article 48 PCA were thought to bar such direct applicability. The latter Article corresponds to a similar EA proviso, which was deemed by the Court not to preclude direct effect. Article 27 does not mean that implementation of Article 23
Member States shall endeavour to ensure that the treatment accorded to Ukrainian 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” (emphasis added). Interestingly, A.G. Stix-Hackl does not specify whether all the linguistic versions of these provisions are consistent.
14.Case C-162/00, Pokrzeptowicz-Meyer, [2002] ECR I-1049, and Case C-438/00, Deutscher Handballbund, [2003] ECR I-4135.
15.Para 26.
16.Para 33.
17.Para 44.
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is subject to the adoption of Cooperation Council’s recommendations, which instead are envisaged as facilitating such implementation.
3.2.The scope of the PCA equal treatment principle
Having established the direct effect of Article 23(1), the Advocate General turned to the scope of the obligation it encapsulates. In this respect, she posited that “it is necessary to proceed on the basis of the Court’s case law on the purport of the rule on freedom of movement in Article 39 EC, and to examine in that context whether Article 23(1) [PCA] … has the same purport at any rate with regard to a rule such as that at issue in the main proceedings”. Relying particularly on the Deutscher Handballbund judgment which transposes the Bosman principles to the EA context, the Advocate General contended that the PCA prohibition of discrimination on grounds of nationality also applies to rules of sports federation.18 Like the nationality clauses at stake in the Bosman and Deutscher Handballbund cases, the contentious Spanish rule does not govern access to employment, which falls outside the scope of application of Article 23 PCA, but relates to working conditions within the meaning of that Article. The “outcome reached by the Court in its case law on the interpretation of Article 39(2) EC can therefore be transposed to Article 23(1) PCA”.19
Moreover, akin to the rules challenged in the Bosman and Deutscher Handballbund cases, the contentious Spanish rule does not concern specific matches between teams representing their countries but applies instead to all official matches between clubs and thus to the essence of the activity of professional players. Indeed, it cannot be justified by exclusively sporting considerations.
In the light of all those considerations, the Advocate General suggested that:
“Article 23(1) of the Agreement on partnership and cooperation establishing a partnership between the European Communities and their Member States, of one part, and the Russian Federation, of the other part, is to be interpreted as precluding a rule under which a sports federation of a Member State applies to a professional sportsman of Russian nationality who is lawfully employed by a football club of such a federation a provision which lays down that clubs may use in competitions at national level only a limited number of players from countries outside the European Economic Area.”
18.The Opinion in the Deutscher Handballbund case was also by A.G. Stix Hackl.
19.Para 66.
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4. The judgment of the Court
4.1.Direct effect of Article 23(1) PCA
Examining the provisions of Article 23(1) PCA, the Court of Justice found that they lay down “in clear, precise and unconditional terms, a prohibition precluding any Member State from discriminating on grounds of nationality, against Russian workers vis-à-vis their own nationals”. Indeed, without touching upon the issue of divergences among the linguistic versions of the PCA, the Court held that this rule of equal treatment lays down “a precise obligation as to the results”. It can thus be relied upon by a Russian national lawfully employed in the territory of a Member States before one of its courts as a basis for requesting that court to disapply discriminatory provisions.
Referring to the case law relating to the EA, as did the Advocate General, the Court found that such direct effect is not brought into question by the proviso of Article 23(1) “[s]ubject to the laws, conditions and procedures applicable in each Member State”. Nor is it precluded by the provisions of Article 48 PCA which “cannot be construed as allowing Member States to subject application of Article 23 to discretionary limitations which would have the effect of rendering that provision meaningless and thus depriving it of any practical effect”.20 Following the Advocate General’s views further, the Court too considered that Article 27 PCA does not make Article 23 PCA subject to the adoption of any subsequent measure, as the recommendations foreseen therein are only deemed to facilitate compliance with the obligation of Article 23.
Indeed, the direct applicability of Article 23 is not “gainsaid by the purpose and nature” of the PCA. In the view of the Court, the fact that this Agreement is limited to establishing a Partnership without providing for an association or future accession “is not as such to prevent certain of its provisions from having direct effect”.21 As Stix Hackl’s Opinion pointed out, the case law relating to EC cooperation agreements with Mediterranean countries,22 or indeed with then Yugoslavia,23 already acknowledged that “when an agreement establishes cooperation between the parties, some of the provisions of that agreement may directly govern the legal position of individual”. The Court concluded that Article 23(1) PCA has direct effect, so that individuals to whom that provision applies are entitled to rely on it before Member States’ courts.24
20.Paras. 24 and 40.
21.Para 28.
22.Case C-18/90, Kziber, [1991] ECR I-199; Case C-113/97, Babahenini, [1998] ECR
I-183.
23.Case C-162/96, Racke, [1998] ECR I-3655.
24.Para 29.
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4.2.The scope of the PCA equal treatment principle
Turning to the scope of the PCA equal treatment principle, the Court of Justice pointed to the similarity of the questions asked in the present and in the Deutscher Handballbund cases, and came to a similar solution. Hence, it held that the rules on licences relate to working conditions, and not to access to the labour market. Referring to Bosman, which inspired its Deutscher Handballbund judgment, the Court also recalled that the prohibition of discrimination on grounds of nationality applies equally to sport federations. While admitting that the PCA “is not intended to establish an association with a view to the gradual integration of that non-member country into the EC, but … rather to bring about ‘the gradual integration between Russia and a wider area of cooperation in Europe’”,25 the Court found that this difference does not “in any way” entail that the PCA non-discrimination principle should have a different meaning than “that which follows from the ordinary sense of those words”. Like the similarly formulated EA principle, the PCA non-discrimination principle establishes a “right to equal treatment in working conditions of the same scope as that which, in similar terms, nationals of Member States are recognised as having under the EC Treaty, which precludes any limitation based on nationality”.
Indeed, and referring again to both Bosman and Deutscher Handballbund rulings, the Court found that the contentious Spanish nationality clause cannot be justified. To start with, the clause does not relate to specific matches between teams representing their specific countries, but applies to official matches between clubs, and thus to the essence of the activity of professional players. Furthermore, no other argument has been put forward in the observations submitted to the Court that would be capable of providing “objective justification for the difference in treatment” between professional players of Russian origin and EEA players.26
The Court concluded that “Article 23(1) PCA is to be construed as precluding the application to a professional sportsman of Russian nationality, who is lawfully employed by a club established in a Member State, of a rule drawn up by a sports federation of that State which provides that clubs may field in competitions organised at national level only a limited number of players from countries which are not parties to the EEAAgreement”.27
25.Para 35.
26.Paras. 38–39.
27.Para 41.