Can anyone help with the Kolpak ruling?

Question

I understand what the Kolpak ruling is, but I would like some help on why it has had the impact that it has.

Kolpak related to an EU association agreement with Slovakia, that included clauses stating that Slovakia's ultimate objective was EU membership, and also had a section relating to free movement of workers.

Since the Kolpak ruling, it has been accepted that it means that any sportsman from a country that has an association agreement with the EU is free to play in the EU as if they were a local player and not a foreign one. Why is this? Most of these other association agreements do not have the same clauses about EU membership or guaranteeing free movement of workers (eg agreement with South Africa, OJ L 311 , 04/12/1999 P. 0003 - 0415), so why is it assumed the same rules apply?

Or have I missed something? Is there another agreement with South Africa I need to be looking at? Have the ECJ or Commission issued further guidance?

Any help appreciated.

JZD · Accepted Answer

If anyone on this site can give a reasoned answer to this question, send them a fiver; - becasue I'm a lawyer and I haven't a clue.
This is specialist stuff.

stephen.oneill · Answer

Kolpak ruled that if a person is a national of a country which has an Association Agreement with the European Union and that person is in possession of a valid UK work permit, he must be treated for the purposes of employment as if he was a citizen of an EU country.  In the case of cricket, this means that a cricketer from such a country who is in possession of a valid UK work permit is treated as if he were a British or other European citizen and can therefore qualify as a domestic player for Competitive County Cricket.  There is no residential requirement.

Kolpak is nothing new, the free movement of persons within the EU is one of the pillars of the Community and has, as its objective, or overriding objective, the notion of non-discrimination.  It is discriminatory to say that a person within the EEA cannot play sport in a particular place because of his nationality.

Kolpak, and indeed other non-discrimination cases does not mean that a person can play for a particular team, only that a refusal cannot be based on his nationality.

For example, in the case of Walrave and Koch v International Cyclists Union the court stated that sport is subject to EU law in "so far as it constitutes an economic activity", therefore it is argued sport must respect the right to free movement of workers and comply with the prohibition on nationality discrimination in the provision of goods and services. 

In 1976 the court said in Dona v Mantero that these principles apply to the rules of sporting organisations as well as to national law, as emphasised in the 1995 case of Bosman where Uefa had tried to restrict the participation of players from other EU states selected for the team, and the court held there was no justification for the nationality discrimination. 

In the German Handball Federation v Kolpak,to which you refer, the principles were taken further still, and applied not merely to national of other EU states, but also to citizens of other countries with which the EU has association agreements.  And in Meca-Medina the court decided that the rules of the sporting body must comply with EU competition law.

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Can anyone help with the Kolpak ruling?

2 Answers