Amateur sport and Union citizenship in the Biffi case: Towards a European sporting citizenship

1. Introduction

Sport has been intended as a means to promote the identity of Europe and its citizens since the Adonnino Report, which, as is well known, put forward a number of measures to encourage a sense of belonging among European citizens. ² This important function of sport in the European project was distinctly recognized by the Amsterdam intergovernmental conference, which ‘emphasise[d] the social significance of sport, in particular its role in forging identity and bringing people together’, with ‘special consideration […] to the particular characteristics of amateur sport’. ³

The social and educational function of sport, widely discussed by several authors, ⁴ has been the focus of growing attention from the European Commission (EC), ⁵ the European Parliament (EP) ⁶ and the Council of the European Union (CoEU). ⁷ The Conclusions of the CoEU of November 2018 ‘on the economic dimension of sport and its socio-economic benefits’, ⁸ for instance, emphasized the role of sport in promoting active citizenship ⁹ and social inclusion. ¹⁰ The EC has therefore put in place several initiatives to foster a common framework for sport (the EU Work Plans for Sport 2011–2014, ¹¹ 2014–2017 ¹² and 2017–2020), ¹³ which should ‘contribute to the overarching priorities of the EU economic and social policy agenda’. ¹⁴

Over the last years, sport is addressed in the perspective of the emergence of a pluralist, cohesive and multicultural European society, ¹⁵ which represents the ideal context and the natural evolution of Union citizenship. ¹⁶ As argued by some scholars, ‘sport was identified as a tool through which the EU could strengthen its image in the minds of Europe’s citizens’. ¹⁷ ‘Sports were intended to be used as the means of creating a common will of Europe and help the awareness of Union citizenship to increase’. ¹⁸

Nevertheless, the legal status of sport in the European project, and thus the relation between amateur sport and Union citizenship, is unclear. This is because, according to the established case-law of the European Court of Justice (ECJ), sport is covered by the Treaty in so far as it constitutes an economic activity. ¹⁹

In this context, the case TopFit e.V. Daniele Biffi ²⁰ (Biffi case) offered the opportunity to the ECJ to clarify the legal relation between Union citizenship and amateur sporting activities. The case originates from a request by an athletics club in Berlin (TopFit e.V) and an Italian citizen member of this club (Mr Daniele Biffi) to remove the rule of the German Athletics Association (the DLV) according to which the right to compete for the title of ‘national champion’ across all age categories is limited to German nationals. Under this rule, amateur athletes like Mr Biffi can participate in the national championships, but only ‘without classification’.

TopFit and Mr Biffi challenged this rule before the national court, which sent three questions to the ECJ by way of reference for a preliminary ruling. These concern the compatibility of the sporting organization (SO) rule in question with: the prohibition on discrimination on the basis of nationality (Article 18 TFEU); the right of EU citizens to ‘move and reside freely within the territory of the Member States’ (Article 21(1) TFEU); and the obligation on the EU to ‘contribute to the promotion of European sporting issues [and] to take action aimed at developing the European dimension of sport (Article 165 TFEU). ²¹

TopFit and Mr Biffi argued that the general principle of non-discrimination should cover the amateur sport just on the basis of Article 21(1) TFEU, read in conjunction with Article 165 TFEU, ²² raising several interesting questions: to what extent could the new form of civic and political allegiance on a European scale, which the Union citizenship would create between EU citizens and host Member State, affect the traditional EU economic approach on sport? How could the established case-law of the ECJ coherently evolve to cover amateur sports? Is the value of amateur sporting activities for the development of European identity such as to establish an autonomous link between sport and general provisions on Union citizenship?

In order to answer these questions, this article examines the opinion of the Advocate General and the Judgment of the ECJ, starting from the established case-law according to which sport is subject to EU law insofar as it constitutes an economic activity (§ 2). Taking into account the possible application of the Treaty, in light of the indirect impact on economic activities of amateur athletes (§ 3), the study analyses the legal implications of Article 165 TFUE (§ 4), considering the social function of sport (§ 5).

At the end of these pages, we should be able to indicate whether the Biffi case represents a simple clarification of the existing legal relations, a coherent case-law development, or another seismic ECJ ruling on sport (§ 6).

2. The application of EU law to amateur sport: the cardinal rule of sport as ‘economic activity’

The application of the general principles of law concerning Union citizenship on purely amateur sports was envisaged in the Biffi case, by the Advocate General, as ‘misplaced’, ²³ because this would be prima face ‘in direct conflict with the cardinal rule that sport only falls within the scope of application of EU law to the extent that it constitutes an economic activity’. ²⁴

This ‘cardinal’ rule was established for the first time in the Walrave case, ²⁵ where the sporting regulations were assessed from the point of view of the principle of the freedom of movement of workers and services. ²⁶ In the subsequent Donà case, ²⁷ the European judges stressed that ‘sporting activities of an economic nature may avoid the application of the prohibition of discrimination in cases where the restrictions based on the nationality of the player meet needs and pursue objects of purely sporting interest and provided that the said restrictions are, on the facts, appropriate and commensurate with the end in view’. ²⁸

The Court has pointed out the particularity of sport since its first pronouncements, determining what has been defined as the ‘application nuanced’ of Community law in the sporting sectors. ²⁹ The Treaty does not affect the so-called lex sportiva, concerning the ‘game rules’; ³⁰ it covers situations involving employment relationships or services, and excludes amateur practice and national teams. ³¹

This general approach to the relation between sporting activities and Community/EU law has been confirmed in the Heylens ³² and Bosman ³³ cases. In the seismic Bosman ruling of 1995, the ECJ applied the well-established principles of the free movement of workers in the football context, overturning UEFA’s use of nationality restrictions in the international transfer system. ³⁴

The ECJ has subsequently applied the EU’s competition laws to SOs’ activities in the Meca-Medina ³⁵ and MOTOE ³⁶ cases, clarifying the EU limits to the traditional autonomy of SOs. ³⁷ SOs were essentially considered as corporations, which act as monopolies, even though most of them are registered as non-profit organizations; ³⁸ their traditional autonomy has been described as a ‘conditional autonomy’ according to which SOs may exercise their discretion in formulating and applying their rules so long as they do not conflict with EU law. ³⁹

At the same time, the Court reaffirmed that the Treaty does not cover the setting of deadlines for transfers of players ⁴⁰ and it should be basically applied to the rules that ‘determine the conditions governing access to the labour market by professional sportsmen and […] contain nationality clauses limiting the number of nationals of other Member States who may participate in a competition’. ⁴¹

However, in the Deliège case, the ECJ clarified that ‘the mere fact that a sports association or federation unilaterally classifies its members as amateur athletes does not in itself mean that those members do not engage in economic activities’. ⁴² It specified that ‘grants of (financial) awards on the basis of sporting results, from government or private sponsorship, were all relevant in determining whether an amateur athlete was engaged in economic activities’. ⁴³

In this sense, the Deliège case marked a crucial additional step in the economic approach to sport, suggesting that the Treaty could cover amateur sport. The ECJ argued that ‘services remain services even when they are not paid for by those for whom they are performed’; ⁴⁴ in this context, it seems that amateur athletes should basically demonstrate that they have a minimum economic impact through their sporting role.

On the basis of the extensive economic approach of the Deliège case, the application of the Treaty to amateur sport should thereby be possible in light of its indirect impact on economic activity. ⁴⁵ We can assume therefore that EU law should be applied when the exercise of amateur sport could produce effects on the economic activities of EU citizens. This possibility is actually addressed by Advocate General Tanchev in the Biffi case.

3. The impact on economic activities of the amateur athlete

In the Biffi case, Advocate General Tanchev takes into account the applicant’s professional activities, reaffirming that the pursuit of economic activities is the fundamental condition ‘for both the application of EU rules on freedom of movement, and for the inclusion of sporting activities within the scope of EU law’. ⁴⁶

In order to determine whether the amateur athlete was engaged in economic activities, the Advocate General notes that Mr Biffi runs a business as a sports coach and personal trainer, arguing that ‘the status as the national champion for Germany is a valuable and important addition to its business card’. ⁴⁷ For this very reason, Mr Biffi is not regarded by the Advocate General as an amateur sportsman, ⁴⁸ but a service provider who ‘is involved on a stable and continuous basis in economic life in Germany’ under Article 49 TFEU. ⁴⁹ Any discrimination he may have suffered in breach of Article 18 TFEU, according to the Advocate General, should thus fall within the scope of application of the Treaties by virtue of Article 49 TFEU’. ⁵⁰

The application of Article 49 TFEU is justified on the basis of the Court’s established case-law, according to which ‘the right of establishment and freedom to provide services is concerned not solely with the specific rules on the pursuit of occupational activities but also with the rules relating to the various general facilities which are of assistance in the pursuit of those activities’. ⁵¹ Pursuant to this established case-law, Advocate General Tanchev argued that ‘Mr. Biffi is at a disadvantage when compared with German nationals engaged in the provision of athletics training services in that Member State because he is no longer able to make reference to his achievements in national sporting championships in order to attract business. A consumer is more likely to be drawn to an athletics coach advertising on-going excellence via his or her performance in the national athletics championships’. ⁵²

Advocate General Tanchev proposes a wide interpretation of the notion of ‘indirect impact on economic activities of amateur sport’ established by the Deliège case, supported by EU case-law prohibiting national measures which could hinder or render less attractive the exercise of fundamental freedoms. ⁵³

Furthermore, Mr Biffi’s established and strong links with Germany and its athletic community are believed to ensure the legitimacy of the title of ‘national champion’ and, at the same time, to guarantee the fairness of the process of selecting athletes to represent Germany at the international level. ⁵⁴

The exercise of fundamental economic freedom guaranteed by the Treaty, supported by a strong link with the host European country and with the specific amateur sport, should thus determine the application of EU law to discrimination practices in amateur sports. In this context, the traditional ‘market citizen’, ⁵⁵ on the basis of its relation with a ‘local (European) community’, could be part of a symbolic and identity representation of a ‘national (European) community’: he/she can win the title of ‘national champion’ and, at the same time, can represent the host Member State at the international level or became, for instance, a European champion by competing for the host Member State.

The ‘market citizen’ seems to become part of a larger and collective identification process, which has its legal basis in the constitutional nature of the common market. ⁵⁶ The sporting arena demonstrates how the EU has shifted from a project of economic integration to a project of political and cultural integration, starting from the juridical and ‘political’ value of the common market.

This appears as a coherent evolution of the Deliège case, consistent with the identifying function of the common market that emerged from the Bosman case ⁵⁷ and the established case-law according to which sport only falls within the scope of application of EU law to the extent that it constitutes an ‘economic activity’. That means also that there is not yet an autonomous link between the European sporting competence and the general provisions on Union citizenship, which could allow the application of the principle of non-discrimination on grounds of nationality, independently of the EU citizen’s economic status.

Furthermore, Advocate General Tanchev suggests that the scope ratione materie of Article 21 TFEU could not be extended to access and participation ‘in leisure activities, at least when this is sought against a private sector actor like the DLV’. ⁵⁸ This is because ‘Article 21 TFEU disputes classically concern relations between the citizen and the State’; ⁵⁹ ‘the open ended nature of the rights protected beneath the rubric of Article 21 TFEU render them ill-adapted to direct horizontal application to disputes between private parties’. ⁶⁰ By contrast, the general principles of law concerning citizenship could be applied ‘in the development of the case-law concerning Articles 45, 49 and 56 TFEU for disputes falling within the scope of these provisions when the occasion to do so arises, as is the case in the main proceedings’. ⁶¹

As argued by some authors, it ‘is the broad reach of the internal market that provides the constitutional basis for the EU’s claim to assert competence in matters of sport’. ⁶²

However, this interpretation should be verified in the light of the evolution of the Union’s responsibilities, as claimed by the applicants and the EC; and notably it must be verified in the light of the legal implications of Article 165 TFEU.

4. The legal implications of Article 165 TFEU

According to the applicants and the EC in the Biffi case, amateur sport falls within the material scope of application of EU law in light of the extension of the EU competences with respect to sport in the Treaty of Lisbon. ⁶³ As known, Article 165 TFEU, taking into account the specific nature of sport, ⁶⁴ establishes that EU action aims at ‘developing the European dimension in sport, by promoting fairness and openness in sporting competitions’. ⁶⁵

The applicants and the EC argued that the additional powers conferred by the Treaty of Lisbon should justify the independent application of Article 18 TFEU; an ‘exclusion of athletes like Mr. Biffi from championships [should be] contrary to the European project, and [should be] inconsistent with the goals in Article 165(2) TFEU final indent. Clubs will become less likely to invest in non-Member State EU nationals’. ⁶⁶

In addition, the EC emphasizes the importance of sport for social inclusion, integration, the development of social networks and employability. In light of the CoEU conclusions of 18 November 2010 on the role of sport as a source of, and driver for, active social inclusion, ⁶⁷ amateur sport should be ‘taken into account in interpreting legal provisions concerning citizenship’. ⁶⁸

Finally, according to the EC and the applicants, Article 165 TFEU should be a primary EU measure for the resolution of a given dispute and able to extend the anti-discrimination protection under Articles 18 and 21 TFEU to leisure sports.

The reasoning just explained, however, appears questionable, since the application of the general provisions on Union citizenship depends on the existence of an exclusive or shared EU competence ⁶⁹ and the competence of the Union under Article 165 TFEU is very limited. The EU institutions could adopt only ‘incentive measures, excluding any harmonisation of the laws and regulations of the Member States’. ⁷⁰ Pursuant to Article 2(5) and 6 TFEU the only EU action legitimized is complementary, co-ordinating and supporting in nature. ⁷¹

In light of above, some authors argue that the inclusion of a specific sporting competence in the Lisbon Treaty, with its weak legislative remit and reference to the ‘specificity of sport’, should not be a genuine extension of EU competences. It would, rather, be ‘an example of the strategy of empowering the EU in order to restrain it’. ⁷² Article 165 ‘emphatically does not elevate the EU to the position of general ‘sports regulator’ in Europe’. ⁷³

While expressing doubts on whether the formal Treaty competence for sport acquired in 2009 could change the scope of the pre-existing EU rules, other authors indicate ‘openness’ and ‘fairness’ as potential principles of developing EU measures on the sporting sector. ⁷⁴ But, at present, it is not possible to observe binding EU measures able to regulate or affect amateur sport activities.

As underlined by the Advocate General in the Biffi case, ‘the Declaration on Sport which was annexed to the Amsterdam Treaty, which in turn entered into force in 1999, merely recognized the social importance of sport, and called on the EU to listen to sports associations, with special consideration to be given to the particular characteristics of amateur sports. The Conclusions of the European Council of December 2000, held in Nice, entitled ‘Amateur sport and sport for all’, like the Amsterdam Declaration, lacked binding legal force’. ⁷⁵

Furthermore, the analysis of the European soft law on sport doesn’t seem to suggest expressly a development of EU law to the point that anti-discrimination protection under Articles 18 and 21 TFEU can be extended to leisure sports. As pointed out by the Advocate General, the ‘Commission White Paper preceding the adoption of Article 165 TFEU ⁷⁶ is light on detail and deferential to the role of governing bodies in sport, advocating for the EU a subsidiary role. In point 39 of the White Paper, the Commission merely ‘calls on Member States and sports associations to address discrimination based on nationality in all sports. It will combat discrimination in sport through political dialogue with the Member States, recommendations, structured dialogue with sport stakeholders, and infringement procedures where appropriate’. ⁷⁷

In light of the foregoing, it is thus difficult to assume that the EU has competence (whether exclusive or shared) in sport, and that it is able to allow the direct application of the general provisions on Union citizenship and to produce the horizontal effects of EU law in the sporting context.

The horizontal application of EU law in the sporting context is actually a recurring and sensitive issue that has arisen since the Walrave case, ⁷⁸ given that sporting activities take mainly place in the social and collective dimension of SOs, which are basically private associations that are, at the same time, part of ‘global private regimes’. ⁷⁹ In my opinion, however, the topic of the application of the principles of law concerning Union citizenship to the horizontal context of a dispute between private parties is not an insurmountable obstacle, as the coming pages will demonstrate. By contrast, the dominant interpretation of the relation between sport and general provisions on Union citizenship should be better balanced: firstly, with the evolving importance attached to the social function of sport, and secondly, by taking into account the inclination of the ECJ to reach its most important decisions by mixing legal and political considerations.

5. The social function of sport

The ECJ has attached great importance to the social function of sport in the European project, pointing out ‘that practising an amateur sport, in particular as part of a sports club, allows an EU citizen residing in a Member State other than the Member State of which he is a national to create bonds with the society of the State to which he has moved and in which he is residing or to consolidate them. That is also the case with regard to participation in sporting competitions at all levels’. ⁸⁰

As a result of the considerable social importance of sport in the EU, reflected by Article 165 TFEU, the ECJ has established ‘that an EU citizen, such as Mr Biffi, can legitimately rely on Articles 18 and 21 TFEU in connection with his practice of a competitive amateur sport in the society of the host Member State’. ⁸¹

The ECJ doesn’t take into account Article 49 TFEU, contrary to the Advocate General’s reasoning. The Court merely states that: Mr Biffi ‘has exercised his right to free movement within the meaning of Article 21 TFEU’; ⁸² ‘according to settled case-law, Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for’; ⁸³ ‘the situation of an EU citizen who has made use of his right to move freely comes within the scope of Article 18 TFEU, which lays down the principle of non-discrimination on grounds of nationality’; ⁸⁴ ‘access to leisure activities available in that Member State is a corollary to that freedom of movement’; ⁸⁵ ‘the rights conferred on an EU citizen by Article 21(1) TFEU are intended, amongst other things, to promote the gradual integration of the EU citizen concerned in the society of the host Member State’. ⁸⁶

The position of the ECJ, expressed in such ‘laconic’ terms, ⁸⁷ could be explained in light of the evolving importance attached to sport, and in particular on the basis of the ‘constitutional objective of integration’ of EU citizens in the host Members States.

The social function of sport is clearly not a static notion; it evolves continuously depending on the intensity and the quality of EU institutions’ interventions, in line with the traditional dynamic nature of EU law.

As partially anticipated in the introduction of this paper, one of the pillars of the emerging European framework for sport is the traditional binomial sport/education, which is designed to promote the emergence of a pluralist, dynamic and cohesive European society. ⁸⁸ It seems that the European legal system has absorbed the notion of sport elaborated by the Council of Europe, according to which ‘sport has become more than just a leisure pursuit. It is a recognised social phenomenon. Sports offer a common language and a platform for social democracy. It creates conditions for political democracy and is instrumental to the development of democratic citizenship. Sport enhances the understanding and appreciation of cultural differences and it contributes to the fight against prejudices. Finally, sport plays its part to limit social exclusion of immigrant and minority groups’. ⁸⁹

This specific notion of the social function of sport has been partially recognized by the ECJ in the Bernard case, ⁹⁰ through its definitive inclusion within the conceptual framework of the imperative reasons of overriding public interest. ⁹¹ In this case, the Advocate General underlined that ‘professional football is not only an economic activity in Europe; it also enjoys a considerable social importance, particularly when one looks at the links existing between professional and amateur sport and at the virtues of amateur sport’. ⁹² This point was particularly stressed with multiple references, mainly to the Nice Declaration, to the White Paper on Sport, to the European Parliament’s Resolution on the White Paper, ⁹³ and to Article 165 TFUE, ⁹⁴ which actually introduced into the Treaty the notion of the social function of sport. ⁹⁵

In the Bernard case, for the first time, the economic aspect of sport seems to be almost marginal, subordinated and functional to the cultural and social ones. According to the ECJ, the remuneration for the training activity must be indeed ‘proportionate to the objective of encourage the recruitment and training of young players’, ⁹⁶ which must be pursued in order to implement the social and educational function of sport. ⁹⁷

The social function of sport became finally part of the European legal acquis, as an important parameter to assess measures and rules that are brought to the attention of the Court. Furthermore, its qualification as permitted derogation under EU law can notably trigger the application of the general principle of non-discrimination, pursuant to the reasoning in the existing case-law. ⁹⁸

In light of the above, we could then assume that the social function of sport falls within the scope of EU law; on the basis of its recognized role to promote social inclusion, we could moreover deem that this ‘new European parameter’ should be taken into account in the protection and definition of Union citizenship rights, whose ultimate aim is to achieve the complete integration of EU citizens in host Member States. ⁹⁹

The ‘constitutional objective of integration’ of EU citizens would lead sport within the scope of Union citizenship rights, independently of the economic dimension of sporting activities and of the EU sporting competence. In this sense, some authors argued that ‘today, it is recognised that even non-economic activity is subject to EU law where the rights of Union citizens are concerned, and that a lack of a Treaty competence in a particular field does not preclude the application of Article 18 so long as the situation falls within the substantive scope of other Treaty provisions’. ¹⁰⁰

The non-discriminatory access to sporting activities, and in particular to amateur activities, could be namely interpreted as a ‘corollary’ to freedom of movement of EU citizens and to the fundamental objective of their integration, as leisure activities are a corollary to freedom of movement of the ‘market citizen’. ¹⁰¹

On the basis of the need to promote the gradual integration of EU citizens, read in conjunction with the social function of sport reflected in Article 165 TFEU, the ECJ has therefore decided to recognize, in the context of amateur sport, the horizontal application of the general principles of law concerning Union citizenship, just as it is recognized for professional sport. ¹⁰²

6. Conclusions: the horizontal direct effect of Article 21 TFUE on the emerging European sporting citizenship

The horizontal direct effect of Article 21 TFUE illustrated in the previous paragraph is envisaged by the ECJ as a coherent evolution of the leading case Walrave, where the horizontal direct effect was founded on the effectiveness of exercising the right to free movement of persons. ¹⁰³

Pursuant to this established case-law, the horizontality of the EU principle of non-discrimination concerns private law relations in which one party is weaker than the other party. ¹⁰⁴ In this context, the horizontal direct effect of the general principles of law concerning Union citizenship is not unlimited or presumed, but it is limited to the vertical relations with the SOs’ authorities and derived from the effectiveness of the free movement of EU citizen.

The ECJ has exercised its prerogative to decide whether a general principle produces horizontal direct effect or not, ¹⁰⁵ through a carefully argued rationale. The ‘constitutional objective of integration’ of EU citizens and the qualification of the social function of sport as part of the European legal acquis appear as appropriate sources of inspiration for the assumption of the ECJ.

Given what is described above, the ECJ has actually established an autonomous link between sport and general provisions on Union citizenship, ruling according to its traditional schematic and teleological method of interpretation.

Article 165 TFUE was indeed ‘placed in its context and interpreted in light of the provisions of EU law as a whole, rather than being held to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied’. ¹⁰⁶ The Court therefore invited national courts called upon to examine cases such as the Biffi case, to take ‘into account the objective, arising from a combined reading of the provisions of Article 21(1) TFEU and Article 165 TFEU, of increased openness in competitions and the importance of integrating residents, in particular long-term residents […] in the host Member State’. ¹⁰⁷

The Biffi case finally gave the ECJ the possibility to find the telos of the Treaty dispositions on sport. That is not simply the telos of the rules interpreted but also the telos of the legal context in which those rules exist. This traditional teleological interpretation of the Court, as known, includes clearly political and social elements that nonetheless allow to fill gaps in EU law and to guarantee that ‘the general spirit of the treaty [is] enforced no matter how inconvenient the consequences’. ¹⁰⁸

In this context, the ECJ enforced the European integration ethos, which leans towards inclusion and integration rather than exclusion and segregation, ¹⁰⁹ abolishing de facto and de iure the traditional principle according to which the practice of sport is subject to EU law insofar as it constitutes an economic activity. The compatibility of the national sporting rules with EU law would be assessed not only in light of the economic relations of the athletes (Bosman ruling), of the economic dimension of the sporting events (Deliège ruling), or of the indirect effects on the economic activities of EU citizens (as suggested by Advocate General Tanchev). The European compatibility of sporting rules must also be assessed in light of the need to guarantee the integration of the EU citizen resident in the host Member State, also independently of the EU citizen’s economic status.

In this sense, the Biffi case represents another seismic ECJ ruling on sport, able to overturn Members States’ practice on the participation of non-nationals in national championships. As the Advocate General noted, there is no uniform rule or practice shared by Member States on this topic; however, in general terms, the participation of non-nationals is largely limited and the attribution of a national record to foreigners is basically precluded. ¹¹⁰

The Biffi case seems all the more ‘seismic’ assuming that a national of a Member State other than the host Member State can win the title of ‘national champion’ and, at the same time, can represent the host Member State at the international level or become, for instance, a European champion by competing for the host Member State.

This could appear as an excessive restriction of the traditional exclusive relationship between Members States and their citizens, of which international sporting events are the most visible and symbolic manifestation. However, in my opinion, it is fully consistent with the ‘new form of civic and political allegiance on a European scale’ that Union citizenship creates between EU citizens and the host Member State where they choose to live in a stable way, independently of their specific economic status. ¹¹¹

Furthermore, the non-discriminatory participation to all sporting activities, including the possibility to represent at international level the host Member State, doesn’t overturn the lex sportiva. It is a specific application of the notion of sporting citizenship envisaged as autonomous from the legal national citizenship. ¹¹²

This kind of sporting citizenship, not directly linked to the national citizenship, is foreseen by some international sport federations (ISFs) ¹¹³ and it is based on the residence and ‘sporting background’ criteria. ¹¹⁴ Its rationale/philosophy is to avoid the so-called ‘muscle drain’ ¹¹⁵ and to ensure the equality of athletes, ¹¹⁶ at the same time providing a uniform material rule able to guarantee the authenticity of the link between the athlete and the national team. ¹¹⁷

Recent EU case-law seems to have paved the way for an emerging European sporting citizenship, autonomous from the national citizenship and strictly based on a credible and established link with the country of the Union where the EU citizen resides and has his or her ‘sporting background’.

In this sense, paraphrasing the quotation at the beginning of this paper, sport can be clearly used to create a European and all-encompassing identity as it functions as a vehicle for assimilation and a collective tool of representation.