Avis juridique important

Order of the President of the Court of 27 June 1991. - Jean-Marc Bosman v Commission of the European Communities. - Application for interim measures - Admissibility of the main application. - Case C-117/91 R. European Court reports 1991 Page I-03353

Summary Parties Grounds Operative part

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Application for interim measures - Conditions as to admissibility - Admissibility of the main application - Lack of relevance - Limits

(EEC Treaty, Arts 185 and 186; Rules of Procedure, Art. 83(1))

Although the issue of the admissibility of the main application should not, in principle, be examined in proceedings relating to an application for interim measures, so as not to prejudge the substance of the case, none the less, if the the manifest inadmissibility of the main application is pleaded, it is for the judge hearing the application for interim measures to establish that the main application reveals prima facie grounds for concluding that there is a certain probability that it is admissible.

In Case C-117/91 R,

Jean-Marc Bosman, represented by J.-L. Dupont, L. Misson and M.-A. Lucas, of the Liège Bar, with an address for service in Luxembourg at the Chambers of E. Korn, 21 Rue de Nassau,

applicant,

v

Commission of the European Communities, represented by J.-C. Séché, Legal Adviser, E. Traversa, a member of its Legal Service, and T. Margellos, a senior lecturer at the University of Picardy, on secondment to the Commission, acting as Agents, with an address for service in Luxembourg at the office of G. Berardis, a member of the Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for interim measures, in particular the suspension of the application of a decision adopted by the Commission on 17 April 1991 regarding an agreement between the Commission and the Union of European Football Associations (UEFA),

The President of the Court of Justice

makes the following

Order

1 By application lodged at the Court Registry on 23 April 1991, Mr Jean-Marc Bosman, a professional football player, applied under the second paragraph of Article 173 of the EEC Treaty for the annulment of a decision adopted by the Commission on 17 April 1991, as set out in the Commission' s press release IP()1)316 of 18 April 1991, regarding an agreement between the Commission and the Union of European Football Associations (hereinafter referred to as "the UEFA") on nationality clauses applicable to national championships and the system of transfer fees applicable to the transfer of professional players from one club to another. Pursuant to Article 178 and the second paragraph of Article 215 of the EEC Treaty, the applicant further sought damages for the harm caused to him by the decision.

2 It is clear from the press release to which the applicant refers that negotiations between the UEFA and the Vice-President of the Commission, Mr Bangemann, acting in pursuance of the powers conferred on him by the Commission, led to an amicable arrangement regarding the nationality clauses, whereby national football associations were required from the 1992/1993 season onwards to allow at least three non-national players, together with two non-national players actively engaged in their profession in the host country without interruption for five years, to be fielded in first-division matches played in national championships; the scheme was to be extended, not later than the end of the 1996/1997 season, to the other divisions in which professional players operate. The press release also states that, as far as contractual bonds between clubs and professional players are concerned, the first step has been taken regarding transfers, an agreement having emerged at that stage of negotiations, to accept the principle according to which any professional player is at liberty to play for another club upon the expiry of his contract, irrespective of the usual negotiations between the transferring club and the purchasing club concerning the fees to be paid to the former. The press release states in conclusion that the issue of a "standard contract" between clubs and professional players will require further discussion with all parties concerned.

3 By a separate document, also lodged at the Court Registry on 23 April 1991, the applicant submitted an application under Articles 185 and 186 of the EEC Treaty for interim measures, seeking in the first place to have the application of the contested decision suspended. The applicant also asks the Court to order the Commission to publicize the suspension by issuing a press release, to draw the release officially to the attention of both the Cour d' Appel, Liège, before which proceedings have been brought between the applicant and the Football Club de Liège, and the Union Royale Belge des Sociétés de Football Association, and also to forward to the Belgian court a copy of the arrangement reached with the UEFA together with the Commission' s decision approving it. Lastly, the applicant asks that the Commission be directed to order the UEFA to issue to the applicant a document certifying that he is provisionally entitled to hire out his services to any club established within the Community and to be fielded by such club in official matches without any obligation on its part to pay fees to his former club.

4 The Commission submitted written observations on the application for interim measures on 23 May 1991 and on 28 May 1991 a separate document, pursuant to Article 91(1) of the Rules of Procedure, in which it raised a preliminary objection of inadmissibility regarding the main proceedings. It requested the Court to give a decision on that objection without proceeding to consider the substance of the case.

5 The Commission contends that the applicant' s request to the Court is manifestly inadmissible on the ground that the measure the annulment of which is sought is not a "decision" but an informal transitional arrangement. The Commission states that the contested measure is not to be regarded as an implied "decision" on the complaint submitted by the applicant against, amongst others, the UEFA for infringement of Articles 85 and 86 of the EEC Treaty. Even on the assumption that it is indeed a "decision", it was not addressed to the applicant and is not of direct and individual concern to him; it affects him only by virtue of his objective status as a professional football player. Lastly, the claim for damages is, according to the Commission, inadmissible because the measure in question has no binding legal effects and thus cannot render the Commission liable to the applicant.

6 It should be pointed out that under Article 83(1) of the Rules of Procedure an application for the suspension of the application of any measure or for other interim relief is admissible only if the Court is already seised of an action in which the applicant challenges the measure whose suspension is sought, or of a case to which the applicant is a party and to which the requested interim measures refer. An application for suspension or other interim relief cannot therefore be upheld if the main action to which the application relates is inadmissible.

7 It is, admittedly, established case-law that, in principle, the issue of the admissibility of the main application should not be examined in proceedings relating to an application for interim measures, so as not to prejudge the substance of the case (see most recently the order of the President of the Court in Case 160/88 R Fedesa v Council [1988] ECR 4121); however, according to that same case-law, if it is the manifest inadmissibility of the main application that is pleaded, it is for the judge hearing the application for interim measures to establish that the main application reveals prima facie grounds for concluding that there is a certain probability that it is admissible.

8 In that connection it should be observed that the suspension and the other interim measures sought relate to the application for annulment and that, prima facie, there is nothing in the documents before the Court to justify the conclusion that that application is admissible.

9 Accordingly, at this stage of the proceedings, the application for interim measures must be dismissed.

On those grounds,

THE PRESIDENT

hereby orders:

1. The application for interim measures is dismissed;

2. The costs are reserved.

Luxembourg, 27 June 1991.