delivered on 11 January 2005(1)

(Reference for a preliminary ruling from the Audiencia Nacional (Spain))

(Article 23 of the Partnership and Cooperation Agreement between the EC and the Russian Federation – Freedom of movement for workers – Limit on the number of players from countries outside the EEA – Football)

I – Introductory remarks

II – Legal context

A – Community law

‘Subject to the laws, conditions and procedures applicable in each Member State, the Community and its Member States shall ensure that the treatment accorded to Russian nationals, legally employed in the territory of a Member State shall be free from any discrimination based on nationality, as regards working conditions, remuneration or dismissal, as compared to its own nationals.’

B – National law

4. Article 173 of the General Regulations provides:

‘Without prejudice to the exceptions laid down herein, in order to register as a professional and obtain a professional licence, a footballer must meet the general requirement of holding Spanish nationality or the nationality of one of the countries of the European Union or the European Economic Area.’

Article 176 of the General Regulations provides:

‘1. Clubs entered for official professional competitions at national level shall be entitled to register foreign non-Community players in the number stipulated in the relevant agreements concluded between the RFEF, the Liga Nacional de Fútbol Profesional (National Professional Football League) and the Asociación de Futbolistas Españoles (Association of Spanish Footballers). Those agreements also govern the number of such footballers who may take part simultaneously in a game.

III – Facts, main proceedings and question referred for a preliminary ruling

7. Mr Simutenkov thereupon brought an action before the Juzgado de lo Social (Social Court) No 3 Santa Cruz de Tenerife against the RFEF, seeking protection of his fundamental right not to be discriminated against on the ground of his Russian nationality.

8. The Juzgado de lo Social No 3, Santa Cruz de Tenerife, upheld the action in a judgment dated 19 April 2001, finding discriminatory treatment and recognising Mr Simutenkov’s right to be treated in the same way as a Community national in all matters relating to his working conditions. The judgment did not become final because of a claim relating to conflict of jurisdiction.

9. The Tribunal Supremo (Supreme Court) found that the Juzgado Central de lo Contencioso Administrativo (Central Court for Contentious Administrative Proceedings) had jurisdiction. The latter dismissed Mr Simutenkov’s action by judgment of 22 October 2002.

10. Mr Simutenkov appealed against that judgment to the Audiencia Nacional (Sala do lo Contencioso Administrativo) (National High Court (Chamber for Contentious Administrative Proceedings)), which decided on 4 March 2003 to refer the following question to the Court of Justice for a preliminary ruling:

‘Is it contrary to Article 23 of the Agreement on partnership and cooperation establishing a partnership between the European Communities and their Member States, of one part, and the Russian Federation, of the other part, concluded in Corfu on 24 June 1994, for a sports federation to apply to a professional sportsman of Russian nationality who is lawfully employed by a Spanish football club, as in the main proceedings, a rule which provides that clubs may use in competitions at national level only a limited number of players from countries outside the European Economic Area?’

IV – Assessment

A – Direct effect of Article 23 of the Agreement

12. According to settled case-law, a provision in an agreement between the Community and a non-member country is directly applicable when the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure.

13. This requirement is to be examined from two points of view. First, the provision must be examined in isolation, on the basis of its wording. Second, the agreement as such is to be assessed, that is to say its subject-matter and nature (or essence and purpose or object and context). The Court of Justice has chosen this approach with regard to both Europe agreements (3) and cooperation agreements. (4)

14. The starting point for assessing Article 23 of the Agreement in isolation must be its wording. In so doing it must be borne in mind that Community legislation is drafted in various languages and that the different language versions are all equally authentic. An interpretation of a provision of Community law thus involves a comparison of the different language versions. (5)

15. Such a comparison of the various language versions of Article 23(1) of the Agreement shows that its wording and meaning do not correspond in all of them. The ten language versions that were authentic at the time of signature give the following picture: while seven, (6) including the version in Russian, indicate an obligation, in the general sense of ‘ensure’, three language versions (7) point to an obligation to use endeavours. According to the Greek version, ‘the Community and its Member States shall use every endeavour’, according to the Spanish version ‘they shall watch that …’ and according to the Dutch version ‘they shall take care that …’.

16. In order to determine the meaning of Article 23 of the Agreement, one might take the common minimum of all the language versions as the starting point and accept that there is merely an obligation to use endeavours. However, such a method is supported neither by convincing arguments nor by the practice found in the Court’s case-law.

17. Another solution would be to determine the clearest text, hence to eliminate texts that are not typical (8) or versions which contain a translation error. (9) It is true that such an approach is in principle possible and is also found in the Court’s case-law, but in the circumstances of the present case, in which it is not just one text that diverges from all the others, the approach does not permit a convincing solution.

18. A method of interpretation referred to by the Commission, namely that the language versions forming the majority prevail, would support the view that preference is to be given to the language versions laying down an obligation. This method also finds expression in the Court’s case-law. (10) That may, however, be countered by the Court’s line of argument under which, in certain circumstances, a single language version is to be favoured over the majority. (11)

19. This indicates that recourse should be had to a quite different method, namely the method under which one proceeds on the basis of the original text, hence the version of the Agreement which served as the source text for the translations into the other languages. In the present case that would be the text in the negotiating language, English. This text (‘shall ensure’) clearly imposes an obligation.

21. It is to be noted that this step in the examination is not always distinguished from the second step, (13) namely taking account of the object, purpose, essence or the like of the agreement.

22. The intention of the parties is of decisive importance for the interpretation of Article 23(1) of the Agreement. The documents which have been submitted by the Commission that were used in preparing for the negotiations on the Agreement support the view that the parties wanted to lay down a clear obligation going beyond an obligation merely to use endeavours.

Further support for the view that Article 23(1) of the Agreement lays down an obligation going beyond an obligation merely to use endeavours is provided by the circumstance, revealed by the documents for negotiating the Agreement, that Russia expressed a wish to that effect.

25.The restriction at the beginning of Article 23(1) of the Agreement (‘Subject to the laws, conditions and procedures applicable in each Member State …’) might indicate that Article 23 is not in the nature of an obligation and therefore does not have direct effect.

26.However, under the case-law of the Court of Justice on a similar provision in the Europe agreements, the words ‘subject to the conditions and modalities applicable in each Member State’ cannot be interpreted in such a way as to allow Member States to make the application of the principle of non-discrimination set out in that provision subject to conditions or discretionary limitations inasmuch as such an interpretation would render the provision meaningless and deprive it of any practical effect.

27.The outcome of the analysis of Article 23(1) of the Agreement in isolation is, therefore, that the – English – original text and the majority of the language versions as well as the intention of the negotiating parties indicate that a clear obligation is imposed on the Community and the Member States and thus that that provision has direct effect.

Content and focus of the Agreement

28.Even if a provision which is to be examined in order to ascertain whether it has direct effect appears, when considered in isolation, to have such effect, it must still be examined whether that outcome is confirmed by the agreement’s subject-matter and nature (or essence and purpose or object and context).

29.The Court, referring to Article 31(1) of the Vienna Convention of 23 May 1969 on the Law of Treaties, has stated with regard to the interpretation of international agreements that ‘a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose’.

30.That the wording of a provision alone is not decisive is shown by the fact that even where the wording of provisions is modelled on that of provisions of the EC Treaty, the Court will sometimes interpret the provision in the same way as the provision of the EC Treaty and sometimes not.

31.So far as concerns Article 23(1) of the Agreement, the predominant view expressed in academic writings is that this provision is not directly applicable. The reason given is either that Article 27 of the Agreement provides for recommendations of the Cooperation Council or that the Agreement pursues only a restricted object.

32.The Agreement is therefore to be examined below in relation to its essence and purpose or the object pursued by it.

33.In this regard it can be stated, on the one hand, that the Agreement in any event signifies an advance in comparison with the trade agreement concluded previously with Russia. On the other hand, the Agreement lags behind the Europe agreements in a number of respects. This relates, first, to the substantive content, because the Agreement does not even establish a free trade area and, specifically with regard to freedom of movement, lags behind the provisions of the Europe agreements. Second, the institutional provisions also reveal a series of differences, for example the dispute-resolution mechanism.

34.Nor does the Agreement seek an association, let alone accession of the Contracting Party not in the European Union, as does, for example, the agreement with Slovakia underlying the Deutscher Handballbund case.

35.In my view, however, in order to find that a provision of an agreement is directly effective, it is not decisive that the agreement expressly refers to the prospect of accession.

36.That is also apparent from the now consistent case-law on the cooperation agreements with, for example, Algeria and Morocco. With regard to Morocco the Court has stated as follows: ‘The object of the Agreement … is to promote overall cooperation between the Contracting Parties, in particular in the field of labour. The fact that the Agreement is intended essentially to promote the economic development of Morocco and that it confines itself to instituting cooperation between the Parties without referring to Morocco’s association with or future accession to the Communities is not such as to prevent certain of its provisions from being directly applicable.’ 21 –See Case C-18/90 Kziber [1991] ECR I‑199, paragraph 21.

37.The Agreement with Russia indeed even displays common ground with the Europe agreements in one respect. The Agreement too pursues the object of ‘gradual integration’ of the other Contracting Party thereto. This aspect was one of the determining circumstances for the Court in deciding whether certain provisions of the Europe agreements were directly effective.

38.It may also be inferred from the Court’s settled case-law on cooperation agreements that it is sufficient with regard to the object of an agreement that the Contracting Parties promote overall cooperation, in particular in the field of labour, for a provision laid down in such an agreement to be capable of governing directly the legal position of individuals.

39.The provision in the cooperation agreements with Algeria and Morocco that sets out their objective states: ‘The object of this Agreement between the European Economic Community and [Algeria/Morocco] is to promote overall cooperation between the Contracting Parties with a view to contributing to the economic and social development of [Algeria/Morocco] and helping to strengthen relations between the Parties. To this end provisions and measures will be adopted and implemented in the field of economic, technical and financial cooperation, and in the trade and social fields.’

40.In the comparable provision of the Agreement, namely in Article 1, the following are agreed as objectives of the partnership with Russia: ‘to promote trade and investment and harmonious economic relations between the Parties based on the principles of market economy and so to foster sustainable development in the Parties’; ‘to provide a basis for economic, social, financial and cultural cooperation founded on the principles of mutual advantage, mutual responsibility and mutual support’; ‘to provide an appropriate framework for the gradual integration between Russia and a wider area of cooperation in Europe’; and ‘to create the necessary conditions for the future establishment of a free trade area between the Community and Russia covering substantially all trade in goods between them, as well as conditions for bringing about freedom of establishment of companies, of cross-border trade in services and of capital movements’.

41.A comparison of the objectives of the Agreement with those of the cooperation agreements thus shows that their objectives correspond in many respects.

42.Nor, finally, is the difference between the title of the chapter (‘Chapter I Labour conditions’) in which Article 23(1) of the Agreement appears and the corresponding chapter in the Europe agreements (‘Chapter I Movement of workers’) an indication that Article 23(1) lacks direct effect.

43.The fact that the part in which Chapter I of the Agreement appears is entitled ‘Title IV Provisions on business and investment’ admittedly indicates that the terminology and substantive content differ from those of the Europe Agreements, but does not allow any inferences as to the effect of the provisions contained therein.

44.It follows from all of the foregoing that the essence and purpose or object and context of the Agreement indicate that the provision at issue in the present proceedings has direct effect.

45.It still remains to examine whether Articles 27 and 48 of the Agreement preclude Article 23 from being directly effective.

46.Article 23 of the Agreement is not prevented by Article 27 from having direct effect. Article 27 provides that the Cooperation Council is to make recommendations for the implementation of Articles 23 and 26.

47.The very wording of Article 27, which refers merely to the form of legal measure constituted by a ‘recommendation’, indicates that it is not to be inferred therefrom that the implementation of Article 23 is subject to the adoption of a subsequent legal measure. The role assigned to the Cooperation Council by Article 27 is thus, in relation to Article 23, a limited one – that of facilitating implementation – and cannot in any event be regarded as making immediate application of the prohibition of discrimination subject to a condition, namely the adoption of a legal measure.

48.This conclusion is, moreover, consistent with settled case-law concerning the cooperation agreements with Algeria and Morocco. Under that case-law, the prohibition of discrimination in the field of social security has direct effect although the Cooperation Council has not exercised its implementing power, that is to say it has adopted no measures to implement the principles laid down in the relevant provisions of the agreements.

49.Article 48 of the Agreement likewise does not prevent Article 23(1) from laying down a clear obligation. Article 48 states that, ‘for the purpose of this Title, nothing in the Agreement shall prevent the Parties from applying their laws and regulations regarding entry and stay, work, labour conditions and establishment of natural persons and supply of services, provided that, in so doing, they do not apply them in a manner as to nullify or impair the benefits accruing to any Party under the terms of a specific provision of the Agreement’.

50.Article 48 of the Agreement corresponds almost word for word to Article 59 of the Agreement with Slovakia and Article 58 of the Agreement with Poland. The Court has found that those last two provisions do not preclude direct effect.

Conclusion

51.It must be concluded, on considering together all the matters material to determining whether a provision of an agreement has direct effect, that, on a proper construction of Article 23(1) of the Agreement, the obligation on the Community and its Member States enshrined therein to accord Russian nationals already legally employed in the territory of a Member State treatment free from any discrimination based on nationality, as regards working conditions, remuneration or dismissal, as compared to a Member State’s own nationals has direct effect.

Purport of Article 23(1) of the Agreement: scope of the obligation

52.The issue in the present case is whether Article 23(1) of the Agreement precludes a rule such as that in question in the main proceedings. In this connection, it is necessary to proceed on the basis of the Court’s case-law on the purport of the rule on freedom of movement in Article 39 EC and to examine in that context whether Article 23(1) of the Agreement has the same purport at any rate with regard to a rule such as that at issue in the main proceedings.

53.With regard to the scope of the prohibition of discrimination laid down in Article 23(1) of the Agreement, it must be examined whether the rule at issue in the main proceedings constitutes an employment condition. In so doing, two elements must be distinguished: first, it must be examined whether rules of a sports federation are also covered and, second, the extent of the scope of the prohibition of discrimination in Article 23(1) of the Agreement must be analysed.

54.The starting point for ascertaining the legal purport of Article 23(1) of the Agreement is the Court’s judgment in Deutscher Handballbund which concerned a provision in a different agreement comparable to Article 23(1), namely Article 38 of the agreement with Slovakia.

55.The Court has held with regard to the applicability of Article 38 of the agreement with Slovakia to rules of a sports federation that that provision also covers a rule drawn up by a sports federation such as the German Handball Federation which determines the conditions under which professional sportsmen engage in gainful employment.

56.Article 23(1) of the Agreement contains an obligation which, so far as material, is couched in terms corresponding almost to the word to Article 38(1) of the agreement with Slovakia, namely that the treatment accorded to nationals of the other Contracting Party legally employed in the territory of a Member State is to be free from any discrimination based on nationality, as regards working conditions, remuneration or dismissal, as compared to a Member State’s own nationals.

57.Hence, as in <i>Deutscher Handballbund</i>, the conditions are met for transposing the principles developed by the Court in <i>Bosman</i> (28) with regard to Article 39 EC to Article 23(1) of the Agreement also.

58.It has been submitted in the present proceedings with regard to the question whether the rule at issue in the main proceedings constitutes an employment condition that the licences govern access to the employment market and cannot be regarded as employment conditions. It is not in dispute that provisions which govern access to the employment market fall outside Article 23(1) of the Agreement.

59.It is, however, clear from the Court’s case-law (29) that clauses such as that at issue in the main proceedings concern not the employment of professional players, on which there is no restriction, but the extent to which their clubs may field them in official matches, and that participation in such matches is the essential purpose of those players’ activity.

60.In so far as a sporting rule such as that at issue in the main proceedings has a direct impact on the participation in matches of a Russian professional footballer who is already legally employed in accordance with the national provisions of the host Member State, it relates to working conditions within the meaning of Article 23(1) of the Agreement.

61.Nor can this legal assessment be altered in any way by the differences between the sporting rules at issue in the main proceedings, in particular their legal nature, and the sporting rules underlying the <i>Deutscher Handballbund</i> case.

62.It now remains to examine whether the rule at issue in the main proceedings results in discrimination prohibited under Article 23(1) of the Agreement.

63.It is apparent from the Court’s case-law (30) that Article 39(2) EC precludes the application of rules laid down by sports federations under which, in competition matches which they organise, sports clubs may field only a limited number of professional players who are nationals of other Member States.

64.Article 23(1) of the Agreement grants employees with Russian nationality legally employed in the territory of a Member State a right to equal treatment as regards employment conditions that has the same scope as the right accorded in similar terms by Article 39(2) EC to Member State nationals.

65.Furthermore, the rule at issue in the main proceedings corresponds to the nationality clauses with which <i>Bosman</i> and <i>Deutscher Handballbund</i> were concerned.

66.The outcome reached by the Court in its case-law on the interpretation of Article 39(2) EC can therefore also be transposed to Article 23(1) of the Agreement.

67.It may be stated by way of conclusion that Article 23(1) of the Agreement precludes application of a rule such as that at issue in the main proceedings to Mr Simutenkov since the rule gives rise to a situation in which he, in his capacity as a Russian national, although legally employed in a Member State, has, in principle, merely a limited opportunity, in comparison with players who are nationals of Member States or of States in the EEA, to participate in certain competitions, that is to say the Primera Liga and Second Division National Championships, the Copa del Rey and the Supercup, which constitute, moreover, the essential purpose of his activity as a professional footballer. (31)

68.Like the rules underlying the <i>Bosman</i> and <i>Deutscher Handballbund</i> cases, the rule at issue in the main proceedings does not concern specific matches between teams representing their countries but applies instead to all official matches between clubs and thus to the essence of the activity of professional players. (32)

69.It is to be noted finally that it has not been submitted in the present case that the rule at issue in the main proceedings can be regarded as justified by exclusively sporting considerations.

V –Conclusion

70.I accordingly suggest that the Court give the following answer to the question referred for a preliminary ruling: Article 23(1) of the Agreement on partnership and cooperation establishing a partnership between the European Communities and their Member States, of one part, and the Russian Federation, of the other part, is to be interpreted as precluding a rule under which a sports federation of a Member State applies to a professional sportsman of Russian nationality who is lawfully employed by a football club of such a federation a provision which lays down that clubs may use in competitions at national level only a limited number of players from countries outside the European Economic Area.

1 – Original language: German.

2 – OJ 1997 L 327, p. 3; Council and Commission Decision of 30 October 1997 on the conclusion of the Partnership and Cooperation Agreement between the European Communities and their Member States, of the one part, and the Russian Federation, of the other part (OJ 1997 L 327, p. 1).

3 – Case C-63/99 <i>Gloszczuk</i> [2001] ECR I‑6369, paragraph 30, Case C-162/00 <i>Pokrzeptowicz-Meyer </i>[2002] ECR I‑1049, paragraphs 20 and 25, and Case C-438/00 <i>Deutscher Handballbund</i> [2003] ECR I‑4135, paragraphs 25 and 26.

4 – See in particular Case C-162/96 <i>Racke</i> [1998] ECR I‑3655, paragraph 31.

5 – In this regard, see in particular Case 283/81 <i>CILFIT</i> [1982] ECR 3415, paragraph 18, and Case C-72/95 <i>Kraaijeveld and Others</i> [1996] ECR I‑5403, paragraph 28.

6 – These are, in addition to the Russian version, the Danish (‘sikrer’), German (‘stellen … sicher’), English (‘shall ensure’), French (‘assurent’), Italian (‘evitano’) and Portuguese (‘assegurarão’).

7 – The Greek, Spanish and Dutch versions.

8 – Case 16/65 <i>Schwarze</i> [1965] ECR 877, Case 35/75 <i>Matisa</i> [1975] ECR 1205 and Case 45/83 <i>Ludwig-Maximilians-Universität München</i> [1984] ECR 267.

9 – Case 29/69 <i>Stauder</i> [1969] ECR 419.

10 – Case 55/87 <i>Moksel</i> [1988] ECR 3845, paragraph 16 et seq., and Case C-64/95 <i>Lubella</i> [1996] ECR I-5105, paragraph 18.

11 – Case 76/77 <i>Dufour</i> [1977] ECR 2485 and Joined Cases 233/78, 234/78 and 235/78 <i>Lentes and Others</i> [1979] ECR 2305.

12 – Case 61/72 <i>Mij PPW International</i> [1973] ECR 301, Case 6/74 <i>Moulijn</i> [1974] ECR 1287, Case 80/76 <i>Kerry Milk</i> [1977] ECR 425 and Case 93/76 <i>Liégeois</i> [1977] ECR 543. See also Case 173/88 <i>Henriksen</i> [1989] ECR 2763, paragraph 11, Case C-449/93 <i>Rockfon</i> [1995] ECR I‑4291, paragraph 28, and <i>Kraaijeveld</i><i>and Others</i>, cited in footnote 5, paragraph 28.

13 – Case 30/77 <i>Bouchereau</i> [1977] ECR 1999, <i>Dufour</i>, cited in footnote 11, and Case 150/80 <i>Elefanten Schuh</i> [1981] ECR 1671.

14 – OJ 1998 L 49.

15 – OJ 1998 L 181.

16. <i>Deutscher Handballbund</i>, cited in footnote 3, paragraph 29; see also <i>Pokrzeptowicz-Meyer</i>, cited in footnote 3, paragraphs 23 and 24.

17 – Opinion 1/91 [1991] ECR I-6079, paragraph 14, and Case C-268/99 <i>Jany and Others</i> [2001] ECR I-8615, paragraph 35.

18 – See in particular Case C-207/91 <i>Eurim-Pharm</i> [1993] ECR I-3723 and Case C-312/91 <i>Metalsa</i> [1993] ECR I-3751.

19 – M. Cremona, ‘Citizens of Third Countries: movement and employment of migrant workers within the European Union’, <i>Legal Issues of European integration </i>1997, p. 87 (at p. 112).

20 – M. Cremona, cited in footnote 19, p. 87 (at p. 112). M. Maresceau and E. Montaguti, in ‘The Relations between the European Union and Central and Eastern Europe: A Legal Appraisal’, <i>Common Market Law Review </i>1995, p. 1327 (at pp. 1341, 1342), infer the different policy pursued thereby from the legal bases chosen.

21 –

See Case C-18/90 Kziber [1991] ECR I‑199, paragraph 21.

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Gloszczuk, cited in footnote 3, paragraph 50, and Pokrzeptowicz-Meyer, cited in footnote 3, paragraph 42.

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See Kziber, cited in footnote 21, paragraphs 15 to 22, Case C-58/93 Yousfi [1994] ECR I-1353, paragraphs 16 to 18, Case C-103/94 Krid [1995] ECR I-719, paragraphs 21 to 23, Case C‑126/95 Hallouzi-Choho [1996] ECR I-4807, paragraph 19, and Case C-113/97 Babahenini [1998] ECR I-183, paragraph 17.

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Kziber, cited in footnote 21, paragraph 19.

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See Kziber, cited in footnote 21, Yousfi, cited in footnote 23, Krid, cited in footnote 23, Hallouzi-Choho, cited in footnote 23, and Babahenini, cited in footnote 23.

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Deutscher Handballbund, cited in footnote 3, paragraph 28, and Pokrzeptowicz-Meyer, cited in footnote 3, paragraph 28.

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Deutscher Handballbund, cited in footnote 3, paragraph 37.

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Case C-415/93 Bosman [1995] ECR I‑4921, paragraph 87.

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Bosman, cited in footnote 28, paragraph 120, and Deutscher Handballbund, cited in footnote 3, paragraphs 45 and 46.

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Bosman, cited in footnote 28, paragraph 137, and Deutscher Handballbund, cited in footnote 3, paragraph 48 et seq.

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Cf. Deutscher Handballbund, cited in footnote 3, paragraph 51.

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Bosman, cited in footnote 28, paragraph 128, and Deutscher Handballbund, cited in footnote 3, paragraph 54.

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