The Heads of State and Government of the EU’s Member States have agreed in the European Council held in Brussels during the weekend of 17-18 June 2004 on the final text of a European Constitution. In the EU’s new Constitution has for the first time been included an article dealing specifically with sport, giving therefore the EU a specific legal basis for its actuation in this field.

Article 182 of the new Constitution deals with “Education, vocational training, youth and sport”. This article will enable the European Union to take initiatives to promote the educational and social values of sport Europe-wide. This new legal basis will not however prevent sport from being regulated by other fields of European law such as free movement of workers, competition, etc as it is the case nowadays.

You can find the text of Article 182 in the following link:

http://europa.eu.int/comm/sport/action_sports/article/docs/articlesport-final.pdf

After the publication in this section of my previous article dealing with the Cotonou Agreement, I have had some feedback from the readers requesting more details concerning this topic. Therefore, for the sake of a better understanding I will hereby further elaborate on this issue.

It is my opinion that the non-discrimination clause included in the Cotonou Agreement may allow the Cotonou basketball players to be considered as Bosman B players within the EU as it is the case for those players from countries having signed an Association Agreement with the European Union (Kolpak case). Let us remember nonetheless that the effects of the Kolpak case, which deals only with workers from Slovakia, can be transposed to other nationals from countries which have also signed Association Agreements with the EU because all these Association Agreements have an identical wording in their respective non-discrimination clauses and in addition, they have exactly the same objectives, that is to say, prepare those countries for EU’s membership (please note that at the present time most of these countries are already EU members and are consequently subject to the transitional arrangements as I explained in my article of 7 May 2004). The existence therefore of the European Court of Justice’s Kolpak ruling gave legal certainty and national basketball federations had to consider players from those countries as having the same labour rights as EU’s nationals once they are lawfully employed in one EU’s Member State.

Now, if the Cotonou Agreement’s objectives were the same as the ones enshrined in the Association Agreements, being the wording of its non-discrimination clause, if not identical at least, very similar to the respective non-discrimination clauses included in such Association Agreements, it could be said without reservations that the legal effects stemming from the Kolpak case can be transposed to the Cotonou Agreement meaning that Cotonou players could be considered in the EU as Bosman B players. But such objectives are not the same as the ones included in the Association Agreements and therefore it is open to interpretation and debate whether the Kolpak case’s effects are transposable to the Cotonou Agreement. This issue being open to interpretation means that every national basketball federation may decide whether to consider Cotonou players as Bosman B players. It also means that there is no legal certainty regarding this issue and that only a ruling from the European Court of Justice can provide such legal certainty.

Let us put an example in order to better understand the foregoing: in Belgium, according to Article 171(2b) of the Belgian Basketball Federation’s Statutes (Partie Compétition), Cotonou basketball players are, provided that they comply with some legal requirements, considered as having the same rights as Belgian basketball players (that is to say, they are considered as Bosman B players). I do not know the reasons for this decision. Maybe the Belgian Basketball Federation is just applying the non-discrimination principle as enshrined in rule 3.4 of the FIBA’s Internal Regulations (2004 World Edition) which reads as follows:

“3.4 Club teams

For the international club competitions of FIBA, the composition of the teams is not subject to any limitation concerning the legal nationality of the players. However, each national federation and FIBA Zone may establish more restrictive regulations. For tournaments, whose duration does not exceed 15 days, the governing body of that competition may also establish more restrictive regulations.”

Or maybe the Belgian Basketball Federation just considers that there is a legal obligation imposed by the EU law and for this reason it does not establish more restrictive regulations. Whatever the reason, the point is that due to the current legal situation the Belgian Basketball Federation, or whatever other national federation in the EU, can autonomously decide, based on its own interpretation, how to considerer Cotonou players as regards nationality rules. But let us further continue with our example.

Let us now hypothetically assume that the Belgian Basketball Federation does not consider that there is a legal obligation because, as said before, the question of whether the Kolpak case being applicable to the Cotonou Agreement is open to interpretation or the federation just feels like using its prerogative of establishing more restrictive regulations as laid down in the above-mentioned FIBA’s rule 3.4. In this hypothetical case, what are the courses of action that Cotonou basketball players that want to play in Belgium would have? They could try to convince the Belgian Basketball Federation to change its rules and allow Cotonou basketball players to play in Belgium as Bosman B players. If they are not persuasive enough to convince the federation, then the course of action that they have left is either to accept this fact or to go to the competent Belgian Court of Justice claiming that the Kolpak case is also transposable to the non-discrimination clause enshrined in the Cotonou Agreement. At this point, it would be again open to interpretation for the Belgian judge to assess whether the Cotonou player concerned has a right to be considered as a Bosman B player within Belgium. Some judges could think that the difference in objectives between the Cotonou Agreement and the Association Agreements is not relevant enough as not permitting the Kolpak effects to be transposed to the Cotonou Agreement. But since there is no current legal certainty due to the lack of a European Court of Justice’s ruling dealing with this specific issue, it is possible as well that the Belgian judge considers that such difference in objectives is relevant enough and therefore Cotonou players cannot be considered as Bosman B players. In any event, the decision of the Belgian judge will be applicable and therefore enforceable only in Belgium, which means that a similar case in, let us say, Spain would need a brand-new legal procedure before a Spanish Court. Only in the case that the Belgian judge requests a preliminary ruling to the European Court of Justice, the result of the European Court of Justice’s judgment will be applicable in the whole EU. In that case, there would be legal certainty as regards the issue whether the effects of the Kolpak case are transposable to the Cotonou Agreement.

In conclusion, it is my opinion that until there is no a European Court of Justice’s ruling dealing with this issue, there will be no legal certainty and therefore Cotonou players are subject to the interpretation that every national basketball federation or judge may give to the current legal situation. Consequently, in a case where a Cotonou basketball player wants to play in a given member state of the EU, a previous study of the nationality rules of the respective national federation has to be carried out (that is to say, a case-by-case study) in order to ascertain whether the Cotonou player can be considered as a Bosman B player. In Belgium, this is the case, but in other EU’s countries it may not be the case and therefore the alternatives are to accept this fact or, on the contrary, to have recourse to the competent national court of justice.

In order to further complete the previous article dealing with the Cotonou Agreement, below you can find links to the official European Commission’s website which displays maps of the ACP countries that have signed the Cotonou Agreement. The folowing links will lead you to the maps of: 

- African ACP countries

http://europa.eu.int/comm/development/body/cotonou/afri_en.htm

- Caribbean ACP countries

http://europa.eu.int/comm/development/body/cotonou/cara_en.htm

- Pacific ACP countries

http://europa.eu.int/comm/development/body/cotonou/paci_en.htm

This paper tries to cast some light on the issue of the possible application of the case law of the Court of Justice of the European Communities (hereinafter referred to as “the Court”) concerning free movement of workers to the new ACP-EC Agreement signed on 23 June 2000 in Cotonou, Benin (hereinafter referred to as “The Cotonou Agreement”). In particular, we will study whether ACP sportspersons (in our case basketball players) could enjoy, within the territory of the EU, the non-discrimination based on nationality principle enshrined in the Court’s case law.

The case law of the Court has changed to a great extent the way sport is considered under EU law. Thanks to the Bosman case, EU sportspersons are now allowed to freely move within the EU’s labour market without restrictions. In other words, they cannot be subject to labour restrictions based on nationality. This situation has been further developed by a more recent Court’s judgment: the Kolpak case (Case C-438/00 Maros Kolpak [2003]). In this case, the Court ruled that nationals from Slovakia cannot be subject either to labour restrictions due to the non-discrimination clause included in the Association Agreement between the EC and the Slovak Republic (hereinafter referred to as “AA with Slovakia”). In general terms, and exceeding the geographic limits of Slovakia, it can be said that the Court established in that case that nationals from non-EU countries cannot be subject to restrictions based on nationality concerning their working conditions provided that those nationals are already lawfully employed in the host Member State and provided that their country had signed an Association Agreement (or Europe Agreement as this type of conventions are known as well) with the European Communities which contains a non-discrimination clause.

Let us start by saying that this paper does not intend to carry out an exhaustive study of the above-mentioned topic. In order to avoid unwanted complications and to facilitate the comprehension of the complex issues dealt with in this paper, there will be no detailed descriptions of the procedures followed by the institutions of the European Union or the national laws applied by every single Member State of the EU15. Further papers could nonetheless deal with the most detailed aspects of the present topic. In other words, this paper will focus on the most relevant issues concerning workers, in our case concerning professional basketball players, presented in a general and simple way.

The 1^st of May 2004, the European Union 15 was enlarged with the accession of 10 new Member States. The newcomers are Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia. This further step towards a united Europe entails relevant changes for the new Member States as well as for the EU15. One of the sectors affected by the accession is the free movement of workers, one of the four fundamental freedoms in which the existence of the European Union is based. This freedom includes the right to live and work in another Member State. Below, we are going to study to some extent how these changes affect a very particular group of workers, that is to say, professional basketball players.

In the first place, we will see how the transitional arrangements affect players from the new Member States that want to work (play) within the territory of the EU15.

Since the Bosman judgement in 1995, and further jurisprudential developments, the professional basketball players, as far as the access to the labour market in the European Union countries is concerned, are classified in Bosman A and Bosman B players. Bosman A players are those who have citizenship from one of the EU’s Member States as well as from one of the EEA’s countries and can therefore freely have access to the labour market of each and every Member State. On the other hand, Bosman B players are those who are citizens of one of the countries that have signed an Association or Cooperation Agreement with the EU and, expressed in very general terms, need a work permit to enter in the EU’s labour market. Players from the 10 new Member States were Bosman B players, but since their countries are now part of the EU, one could think that automatically, starting from 1 May 2004, they have become Bosman A players. However, this is not the case as we will see below.

For political reasons, the EU15’s Member States had concerns, when negotiating the respective accession treaties with the new Member States, on the possible negative impact in their labour markets that the accession of 10 new countries with a lower economical level could have. To avoid alleged massive immigration flows and labour dumping the EU15 and the new Member States negotiated transitional arrangements in the sector of the free movement of workers. These arrangements agreed upon means, in simple words, that the new Member States’ workers (in our case, professional basketball players), during the transitional period, will still need to get a work permit to enter the labour market of those EU15’s Member States that have decided to apply national labour laws. In other words, the players from the new Members States are still considered as Bosman B players during the transitional period in those EU15’s Member States that apply national labour rules. As regards those Member States that may have decided to open their labour markets as from the first day of accession, those players are considered as Bosman A players (it has to be said that at the moment of writing the present paper it is not clear at all whether there are Member States that have decided or not to open their labour market as from the first day of the accession).

Let us study now in a more detailed way the transitional period agreed upon by the EU15 and the new Member States as well as its consequences for the players.

The maximum transitional period possible is 7 years, where the free movement of workers can be restricted between the EU15 and the new Members States with the exception of Cyprus and Malta. These countries have not negotiated transitional arrangements and therefore will enjoy open labour markets since the first day of accession. Nevertheless, Malta (unlike Cyprus) has the possibility of using the so-called “safeguard clause” which means that Malta can re-impose restrictions if its labour market experiences serious and negative disturbances stemming from the application of the free movement of workers. The EU15’s Member States that have decided or will decide to open their labour markets enjoys the possibility of applying the “safeguard clause” as well. These countries would be allowed to re-introduce work permits temporarily provided they undergo serious problems on their labour markets, or there is a threat of it.

As said above, the maximum the transitional period can last is 7 years. But within this period of time there are several possibilities:

- First 2 years of the transitional period following the accession of the new Member States

For the first 2 years after the date of accession, 1 May 2004, the EU15’s Member States, which have decided to do so, will apply their own national labour rules to the workers from the new Member States. In order words, during these 2 years, access for players from the new Member States to the teams of the EU15’s Member States will depend on the national law as well as bilateral agreements between the countries concerned. Therefore, in order to play in countries that have decided to apply their national rules during the first 2 years of the transitional period, these players will need work permits granted to them according to national laws. The exception, as mentioned above, is that players from Cyprus and Malta can work within the EU15 as from the first day of accession without the necessity of requesting a work permit since there are no restrictions on the free movement of workers for these countries during the transitional period.

- Further period of 3 years

After these 2 years, the EU15’s Member States will have to decide what system (national or EU) they will use from then on. The countries that will have decided to opt for the EU’s system will allow the new Member States’ workers to work in their territory without restrictions, that is to say in general terms, without the need of a work permit. Consequently, players from the new Member States will be considered as Bosman A players in these countries but not automatically in other Member States that have decided to keep applying their national labour rules. On the other hand, the EU15’s Member States that will have decided to still apply their national systems due to difficulties in their labour markets could do that for another 3 years. Players from new Member States will still be considered as Bosman B players in those countries.

- Final period of additional 2 years

After these further 3 years, the remaining Member States that have not done that already will have again the possibility of opening their labour markets entirely. Only in the case that they can prove that they are suffering, or there is the threat of suffering, disturbances in their labour markets, they could enjoy a further 2 years period in which they still can require work permits. These last 2 years is the maximum transitional period allowed which means that after these 2 final years has passed (7 years in total following the accession of the new Member States) the EU15’s Member States that have not opened their labour markets yet shall not be allowed to require work permits anymore. From that day on, all players from the new Member States will become Bosman A players in the whole enlarged EU.

We have seen the effects of the transitional arrangements on workers from the new Member States that wish to enter the EU15’s labour market during the transitional period. But, what happens to players from new Member States that are already legally established, that is to say playing with a work permit, in the EU15? To be more precise, if a player is playing in a team within the EU15 at the date of accession, or following the date of accession, and have a work permit for 12 months or longer, what are his/her labour rights? The answer is that he or she has the same labour rights than the players from that country or from another EU15’s Member State but only if he or she stays in that country, that is to say, those labour rights are not automatically extended to other EU15’s Member States that have decided to maintain restrictions to the free movement of workers. Consequently, if a given player from a new Member State who is playing (due to a work permit granted for 12 months or longer) in a team within the EU15 wishes to change team and play for another team in the same country, he or she can do that freely without needing to apply for a work permit. In other words, in that country the player is considered as a Bosman A player. On the contrary, if such player wishes to go and play for a team from another EU15’s Member State, in that case he or she will need to apply for a work permit (that is to say, the player will be considered as a Bosman B player) provided that that country requests one (if that Member State has already opened its labour market, there will be no need then for a work permit and the player will be considered as a Bosman A player in that country). Moreover, it is important to emphasise that, once the player has voluntarily left the host Member State, he or she loses the right of access to the labour market of that same country until the restrictions of the transitional period have expired. What has been explained above is something important to bear in mind due to the very nature of the job of being a professional basketball player. Indeed, this job involves, in many cases, a great deal of mobility among different countries.

Once we have seen the effects of the transitional period restrictions on the players from the new Member States that wish to play in teams within the EU15, were are now going to see the effects, or the lack of, of such restrictions in other cases.

In the case of a EU15’s player that wishes to play in a team established in another EU15’s Member State, the transitional period restrictions simply do no apply. There are no restrictions for such a player.

There is also the case that a EU15’s player wishes to play in a team from a new Member State. In this case, if the EU15’s Member State of which the player is a national has imposed restrictions to the new Member State’s nationals, it is very likely that such new Member State will reciprocally impose restrictions on nationals from that EU15’s Member State. In other words, it is likely that work permits need to be requested.

Finally, there is the case of a player from a new Member State that wishes to play in another new Member State’s team. The EU15 has agreed to concede the new Member States the possibility of invoking safeguards against each other. It is therefore a question of whether the new Member States decide to apply or not restrictions against the other new Member States’ nationals.

In conclusion, as we have seen from the foregoing, the transitional arrangements are far from being simple and unitary. Depending on the individual decision of each EU15’s Member State, there might be countries that allow a free movement of workers as from the first day of accession, that is to say 1 May 2004, and on the other hand, there might be countries that decide to open their labour markets only after the maximum transitional period of 7 years has passed. There are as well different options concerning EU15’s players and new Member States’ players wanting to go and play for a team established in one of the new Member States. Therefore, any player from the new Member States that wish to go and play, during the transitional period, in the EU15 is advised to seek beforehand proper advice and information about the labour rules (national or EU) in force in the country where his or her future team is established. The same has to be said for players (from EU15 and new MS) that wish to play in a team established in one of the new Member States.

Cotonou players: Players with citizenship of countries who signed an agreement with the European Community (the Cotonou Treaty).
The European countries are as follows; Belgium.Czech Republic, Denmark, Germany, Estonia, Hellenic Republic, Spain, France, Ireland, Italy, Cyprus, Latvia, Lithuania, Luxembourg, Hungary, Malta, Netherlands, Austria, Poland, Portugal, Slovenia, Slovakia, Finland, Sweden and Great Britain. Take note that for professional basketball players some countries have removed and/or modified restrictions and/or limitations on import players, use this as a general reference only.

Angola
Antigua and Barbuda
Bahamas
Barbados
Belize
Benin
Botswana
Burkina Faso
Burundi
Cape Verde
Cameroon
Comoros
Congo
Congo Democratic Republic
Cook Islands
Côte d'Ivoire
Djibouti
Dominica
Dominican Republic
Eritrea
Ethiopia
Fiji
Gabonese Republic 
Gambia
The Ghana
Grenada
Guinea
Guinea Ecuatorial
Guinée-Bissau
Guyana
Haiti
Jamaica
Kenya
Kiribati
Lesotho
Liberia
Madagascar
Malawi
Mali
Marshall Islands
Mauritania
Mauritius
Micronesia (Federated States of)
Mozambique
Namibia
Nauru
Niger
Nigeria
Niue
Palau
Papua New Guinea
République Centreafricaine (Central African Republic)
Rwanda (Rwandese Republic)
São Tomé e Príncipe
Sénégal
Seychelles
Sierra Leone
Solomon Islands
Somalia
South Africa
St Kitts and Nevis
St Lucia
St Vincent and The Grenadines
Sudan
Suriname
Swaziland
Tanzania 
The Republic of Chad
Togo
Tonga
Trinidad and Tobago
Tuvalu
Uganda
Vanuatu
Western Samoa
Zambia
Zimbabwe

The following was originally published on Eurobasket and "The contents of this section are provided as a complementary service to our readers for information purposes only. Such contents are not intended and therefore cannot be considered as formal legal advice or opinion. For individual legal advice or opinion regarding your own situation, a lawyer should be directly consulted."
 
Spain, Portugal and Finland open their labour markets to workers from new EU's member states - Mar. 14, 2006 - by Francisco Rodero
As from 1 May 2006, the Governments of Spain, Portugal and Finland intend to open their labour markets to workers who are nationals of the new EU’s member states. The two-year transitional period adopted on 1 May 2004 by most of the older EU’s member states will not be prolonged by Spain, Portugal and Finland. This means that these 3 countries, in addition to the United Kingdom, Ireland and Sweden which did not apply any transitional measures at all, will allow new EU’s member states nationals to access their labour markets in the same conditions that the rest of EU’s nationals. Therefore, basketball players who are nationals of one of the following countries: the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia, will not need anymore a residence and work permit to play in Spain, Portugal and Finland as from 1 May 2006. The United Kingdom, Ireland and Sweden had already opened their labour markets as from 1 May 2004. This is good news for European integration, free circulation of workers and in particular for basketball players who are nationals of one of the new EU’s member states.

Bibliography

- “Free Movement for Persons – a Practical Guide for an Enlarged European Union” The European Commission 2002

http://europa.eu.int/comm/enlargement/negotiations/chapters/chap2/55260_practica_guide_including_comments.pdf

- “Free Movement of Workers to and from the New Member States – How Will it Work in Practice?” The European Commission 2003

http://europa.eu.int/comm/employment_social/free_movement/en2-pr-pdf.pdf

- “Free Movement of Workers after Enlargement: Frequently Asked Questions” The European Commission 2004

http://europa.eu.int/rapid/start/cgi/guesten.ksh?p_action.gettxt=gt&doc=MEMO/04/24|0|RAPID&lg=EN&display=