National preference is contrary to most of France’s international commitments, European Union law and the principle of equality subject to certain reservations.
But there are cases where it is legal. Generally very specific cases, such as for example the law of sports federations.
The question arose as to the conformity with European Union law of a rule reserving participation in the French individual championships to French badminton players.
The applicants saw this as a breach of the principle of non-discrimination on grounds of nationality.
That an individual French championship discriminates between those who live in France and those who do not live there, nothing could be more natural. That he discriminates between “ players holding a French identity card or passport » was a completely different subject… Much less certain in law, and much more symbolic.
On this point, the Court of Justice of the European Union (CJEU) considered that:
« Articles 18, 21 and 165 TFEU must be interpreted as meaning that they preclude regulation of a national sports federation, such as that at issue in the main proceedings, under which a citizen of the European Union, national of another Member State, who has resided for many years in the territory of the Member State where this federation is established where he practices amateur running in the senior category, cannot participate in the national championships in these disciplines in the same way as the nationals or can only participate “out of classification” or “without classification”, without having access to the final and without being able to obtain the title of national champion, unless this regulation is justified by considerations objective and proportionate to the legitimate objective pursued, which it is for the referring court to verify.”
Source : CJUE, 13 June 2019, TopFit eV and Daniele Biffi v/ German Athletics Association eV, aff. C-22/18.
This decision does not therefore prohibit all discrimination between nationals and other citizens, in particular those from the European Union, but it is still necessary that this difference “is justified by objective considerations and proportionate to the objective legitimately pursued “, in the light of criteria which it is largely up to the national judge to assess.
It is undoubtedly because of this margin of maneuver that the Council of State chose not to grant rights to the applicants (parents of a young British person living in France and practicing this oh-so-British sport), who nevertheless rely on important data from Article 18 TFEU. Perhaps also the relative modest size of this federation played a role (more adaptations are required from a large structure than from a small one).
The Council of State thus considered that the restriction thus provided for by this sports federation is justified by the objective of distinguishing the best national badminton players by awarding them the titles of champion of France in each of the categories concerned individually and is , in view of its limited effects on competitive practice, necessary and proportionate to this objective:
“5. It appears from article 3.1 of the regulations on the status of foreign players of the FFBaD that the participation of players who do not hold a passport or a French identity card is not prohibited only for the individual events of the French championships and the stages of the qualifying circuits for these championships. The restriction thus provided for is justified by the objective of distinguishing the best national badistas by awarding them the titles of champion of France in each of the categories concerned individually and is, in view of its limited effects on the practice in competition, necessary and proportionate to this objective. Consequently, the plea based on failure to comply with Article 18 of the Treaty on the Functioning of the European Union, the principle of equality and the principle of free access to sporting activities must be rejected.”
Consequently, this restriction does not infringe Article 18 of the Treaty on the Functioning of the European Union (TFEU) or the principle of equality, according to the Council of State.
Source :
Council of State, June 27, 2024, n° 491138, at the tables of the Lebon collection
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2024-06-28 10:59:14
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