Opinion of Advocate General Szpunar delivered on 9 March 2023.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:188
• Date: 09 March 2023
• Celex Number: 62021CC0680
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 9 March 2023(1)

Case C‑680/21

UL,

SA Royal Antwerp Football Club

v

Union royale belge des sociétés de football association ASBL,

joined parties:

Union des associations européennes de football (UEFA)

(Request for a preliminary ruling from the Tribunal de première instance francophone de Bruxelles (Brussels Court of First Instance (French-speaking), Belgium))

(Reference for a preliminary ruling – Article 45 TFEU – Freedom of movement for workers – Article 165 TFEU – Sport – Regulations of UEFA and the associated national football federations – Home-grown players)

I. Introduction

1. The present reference for a preliminary ruling, which concerns the interpretation of Articles 45 and 101 TFEU, is made in proceedings involving, on the one hand, UL, a football player, and Royal Antwerp Football Club (‘Royal Antwerp’) and, on the other hand, the Union royale belge des sociétés de football association ASBL (Royal Belgian Football Association; ‘URBSFA’) and the Union des associations européennes de football (Union of European Football Associations; ‘UEFA’) for the annulment of an arbitration award which dismissed an action for nullity and compensation brought by UL and Royal Antwerp against a set of rules issued by the URBSFA, UEFA and the other national football associations which are members of the latter.

2. As requested by the Court, this Opinion is limited to the free movement of workers aspect of the case, under Article 45 TFEU. The rules in question relate to what are known as ‘home-grown players’ (‘HGPs’), that is to say players trained by a club or in the national football association to which this club belongs. In essence, the question is whether the mandatory inclusion of a given number of HGPs on a relevant list amounts to an unjustified restriction of the free movement of workers under Article 45 TFEU.

3. I shall argue in this Opinion that the contested provisions are (only) precluded by Article 45 TFEU to the extent that they apply to players who do not emanate from the specific club in question. Nobody wants boring football, (2) which is why some restrictions to this fundamental provision can, in my view, be accepted.

II. Facts, procedure and questions referred

A. The parties to the dispute

4. UL is a football player, born in 1986, who holds the nationality of a third country as well as Belgian nationality. He has been professionally active in Belgium for many years. He played for Royal Antwerp, a professional football club based in Belgium, for several years and is now playing for another professional football club in Belgium.

5. UEFA is an association governed by Swiss law, which is based in Nyon (Switzerland). It was founded in 1954 with the purpose, inter alia, of dealing with all matters relating to football, supervising and controlling the development of football in all its forms and preparing and organising international football competitions and tournaments at European level. Its membership consists of 55 national football associations, whose members include professional football clubs. Its supreme body is the Congress, which brings together all its members. Its executive body is the Executive Committee, whose members are elected by the Congress, by European Leagues (EL), which is itself a Swiss-based association representing 37 national leagues from 30 different states, and by the Association européenne des clubs (European Clubs Association (ECA)), which is a body representing football clubs.

6. The URBSFA is a non-profit association under Belgian law recognised by the Fédération Internationale de football association (International Association Football Federation (FIFA)), by UEFA, of which it is a member, and by the Comité Olympique et Interfédéral Belge (Belgian Olympic and Interfederal Committee (COIB)). Its purpose is to ensure the sporting and administrative organisation of professional and amateur football in Belgium as well as its promotion.

B. The contested provisions

1. UEFA

7. On 2 February 2005, the UEFA Executive Committee adopted rules requiring professional football clubs taking part in UEFA’s interclub competitions to enter a maximum number of 25 players on the squad size limit list, which in turn must include a minimum number of HGPs. Such players are defined by UEFA as players who, regardless of their nationality, have been trained by their club or by another club in the same national association for at least three years between the ages of 15 and 21. On 21 April 2005, the HGP rule was approved by UEFA’s 52 member associations, including the URBSFA, at the Tallinn Congress. Since the 2008/2009 season, the UEFA regulation has required clubs registered for one of its competitions to include a minimum of 8 home-grown players in a list of maximum 25 players. Out of those eight players, at least four must have been trained by the club in question.

2. URBSFA

8. The relevant rules of the URBSFA federal regulations provide for football clubs participating in the professional football divisions 1A and 1B to submit lists containing a maximum list of 25 players, which must include at least 8 trained by Belgian clubs (meaning players who have been affiliated to a Belgian club for at least three full seasons before their 23rd birthday). Furthermore, at least three of those eight players must have been affiliated to a Belgian club for at least three seasons before their 21st birthday. (3)

9. Moreover, as regards match sheets, clubs must resort to players on the abovementioned lists and must include at least six players who have been affiliated for at least three full seasons before their 23rd birthday, two of which before their 21st birthday. (4)

10. In both instances, if the minimum thresholds are not met, such players cannot be replaced by players who do not satisfy the relevant conditions.

C. The main proceedings

11. On 13 February 2020, UL brought an action before the Cour belge d’arbitrage pour le sport (Belgian Court of Arbitration for Sport, Belgium) seeking, inter alia, a declaration that the HGP rules put in place by UEFA and the URBSFA were unlawful on the ground that they infringed Article 45 TFEU (5) and related compensation for the damage caused to UL. Royal Antwerp subsequently voluntarily intervened in the proceedings, also seeking compensation for the damage caused by those rules. UEFA was not a party to the arbitration proceedings.

12. By an arbitration award made on 10 July 2020, the Belgian Court of Arbitration for Sport decided that those claims were inadmissible in so far as they related to the HGP rules put in place by UEFA and admissible but unfounded in so far as they related to those put in place by the URBSFA.

13. As regards the rules put in place by the URBSFA, the Belgian Court of Arbitration for Sport considered, in substance, that they did not infringe the free movement of workers guaranteed by Article 45 TFEU on the grounds that they were indistinctly applicable, that they did not give rise to any discrimination on the basis of nationality and that they were, in any event, justified by legitimate objectives and were not disproportionate to them. (6)

14. As a result, the Belgian Court of Arbitration for Sport dismissed the claims for compensation of UL and Royal Antwerp.

15. On 1 September 2020, UL and Royal Antwerp brought an action before the Tribunal de première instance francophone de Bruxelles (Brussels Court of First Instance (French-speaking), Belgium) for the annulment of the arbitration award on the grounds that it was contrary to public policy, in accordance with Article 1717 of the Belgian Judicial Code.

16. In support of their claims, they argue, in substance, that the UEFA and URBSFA rules on HGPs infringe the freedom of movement for workers under Article 45 TFEU in that those rules restrict both the possibility for a professional football club such as Royal Antwerp to recruit players who do not meet the requirement of local or national roots which they set out, and to field them in a match, and the possibility for a player such as UL to be recruited and fielded by a club in respect of which he cannot rely on such roots.

17. On 9 November 2021, UEFA filed an application for voluntary intervention in the proceedings, which was declared admissible by a judgment delivered on 26 November 2021.

18. In its request for a preliminary ruling, the referring court notes, in the first place, that the arbitration award which it is asked to annul was based (i) on the partial inadmissibility of the claims of UL and Royal Antwerp and on the rejection of the remainder of those claims as unfounded and (ii) on the interpretation and application of two provisions of Union law, namely Articles 45 and 101 TFEU, the possible non-compliance with which could, where appropriate, constitute a breach of public policy within the meaning of Article 1717 of the Belgian Judicial Code, having regard to their nature and the relevant case-law of the Court.

19. In the second place, the referring court considers that, in order to be able to give judgment, it is necessary for it to obtain clarification from the Court as to the interpretation of Articles 45 and 101 TFEU. That court questions the restrictive impact of those rules on the free movement of workers and on competition, and whether they are justified, adequate, necessary and proportionate to the objectives they pursue. In this context, the court refers, inter alia, to a press release published by the European Commission and to a study carried out on behalf of that institution, from which it emerges (i) that those rules have or are likely to have restrictive effects on the free movement of workers and (ii) that the question whether those effects are proportionate to the very limited benefits derived from them, having regard to the less restrictive alternative measures which appear to be possible, is the subject...