Court of Justice finds the right to free movement applies in relation to athletes’ pension benefits

In a preliminary ruling, the Court of Justice of the European Union (CJEU) has held that the established principle of free movement of workers can trump national legislation, where such legislation intends to grant benefits to top-level athletes only if they are nationals of the respective member state.

Background to the preliminary ruling

In the 1970s, the claimant won a gold medal in the Ice Hockey European Championships and a silver medal in the Ice Hockey World Championships as a member of the national team of the former Czechoslovak Socialist Republic. Following the dissolution of the Czech and Slovak Federative Republic, he chose Czech nationality. However, he continued to reside in the territory which is now Slovakia. In 2004, when the Slovak Republic and the Czech Republic joined the European Union, the claimant was employed in Slovakia and has continued to be following the accession.

The claimant’s application for a supplementary pension granted to certain top athletes who represented Slovakia or its legal predecessors (including the former Czechoslovak Socialist Republic) was rejected. According to Slovak law, the supplementary pension is granted exclusively to athletes with Slovak citizenship.

The Slovak district court, where the case was originally brought, referred a preliminary question to the CJEU, asking whether EU law precludes the national legislation.

The judgment

The CJEU based its analysis on the principle of free movement for workers, which dictates that a worker who is a national of one member state must enjoy the same social and tax advantages as national workers in another member state.

The CJEU stressed that the principle also benefits a worker – such as the claimant – who, without having moved from his place of residence, is in the same situation as a migrant worker, given that the state of which he is a national and the state in which he is already resident and working have both joined the EU.

The purpose of the free movement principle is to integrate nationals of other member states into the host member state. Since the award of a benefit to a migrant worker for exceptional sporting achievements while representing that member state (or its legal predecessors) may contribute to his or her integration into that member state, the supplementary pension in question falls within the concept of 'social advantage' of the free movement principle.

Consequently, the CJEU held that a member state which grants an additional benefit to its national workers may not refuse it to other workers just because they are nationals of another member state. The CJEU also stressed that the supplementary pension does not constitute a social security benefit (in particular not an old-age benefit in the sense of a regular statutory pension) since its essential purpose is to compensate its recipients for feats they accomplished while representing their country in the field of sport.

Comment

Pensions issues in the context of the dissolution of the former Czechoslovakia have been particularly controversial in EU law. In 2011, the CJEU held that granting a supplement to old-age benefit only to Czech nationals residing in the territory of the Czech Republic constitutes an unjustified discrimination against those who have made use of their freedom of movement. However, the Czech Constitutional Court refused to apply the CJEU judgment, becoming the first national court to declare such a judgment to be ultra vires. In that instance, the Czech court argued that EU law was not applicable to the specific situation of the dissolution of the Czech and Slovak Federative Republic.

In the specific context of (supplementary) pensions in the sports sector, the CJEU’s recent judgment is significant, particularly for athletes in Slovakia. Former Czechoslovak or Slovak athletes who achieved exceptional sporting results for the former Czechoslovakia or today's Slovakia are also entitled to a supplementary pension if they live and work in Slovakia and do not have Slovak citizenship, but are citizens of another member state.

There appear to be only a few member states which grant (supplementary) pensions to their top athletes (including Croatia, Poland and Romania). The CJEU judgement may have relevance for certain athletes in such member states if the granting of a (supplementary) pension is also made subject to the athlete being a national of that respective member state. But the judgment is likely to have an even bigger impact with regard to member states with a dissolution background (for example, Croatia or Slovenia).

Several member states appear to award one-off bonuses to their top athletes rather than supplementary pensions. A one-off premium is usually paid immediately after a(n) (Olympic) victory. Even if one-off premiums are only granted to nationals, there is, from a practical point of view, little conflict potential: since nationality is typically a prerequisite for inclusion in the (Olympic) team, a scenario in which an Olympic champion has already changed his/her nationality at the time of payment of the premium is unlikely.

It should be noted that the CJEU did not appear to consider there to be an infringement of EU law where a member state grants benefits exclusively to those athletes who have competed for this member state (however, this question was ultimately not relevant in the case decided, since the claimant had won medals as a representative of the legal predecessor of Slovakia, the former Czechoslovak Socialist Republic). Therefore, by way of example, a scenario in which a German athlete who has won a medal for Germany but lives and works permanently in Slovakia is not entitled to a supplementary pension in Slovakia is likely to be in keeping with principles of EU law.

Beyond the specific context of (supplementary) pensions, the CJEU judgment can be seen as part of a judicial trend of strengthening the free movement of athletes. The CJEU emphasises that the award of a benefit to an athlete for exceptional sporting achievements while representing that member state (or its legal predecessors) may contribute to his or her integration into that member state: the additional benefit confers on its recipients a particular level of social prestige. In this context, the CJEU refers to its “Biffi” judgment, in which it recognised the considerable social importance of sport in the EU and the role that sport plays in facilitating integration into the society of a member state.