Conundrum on European Citizen’s Right to Non-Discrimination, Union Citizenship and Right to Reside

* Sarthak Gupta

The Grand Chamber [GC] of the Court of Justice of the European Union (CJEU) in CG v The Department for Communities in Northern Ireland, pronounced a significant ruling on Union citizenship and equal treatment. The judgement deliberates on two issues, protection under European Union [EU] Law of an EU citizen who was conferred pre-settled status under United Kingdom [UK] law during the transition period, and whether the case is indicative of an expanding body of case law concerning EU citizens’ equal access to social assistance whilst residing in a host Member State.

The author in this article addresses the court’s rationale which exemplifies the CJEU’s conservative perception of the right to equal treatment of economically inactive EU citizens, which has been prevalent before Dano v Jobcenter Leipzig.  The author further addresses that CJEU’s resorting to the Charter of Fundamental Rights [herein after CFREU] to address the crevices in the diminishing right to equal treatment of economically inactive EU citizens, in an unanticipated and unfathomable approach.

The ‘Case’

The case concerns the young mother of two small children, ‘CG’, a European national, with dual Dutch-Croatian nationality, who came to Northern Ireland (UK) in 2018 to live with her partner, children’s father who holds Netherlands nationality. She has been residing in a women’s shelter and cares exclusively for her children since separating from her husband due to domestic violence accusations. She has never carried out any economic activity in her lifetime in the UK due to domestic violence and recent pregnancies. Therefore, she has no acquaintances to support her livelihood and her children.  The UK Home Office gave her pre-settled status [PSS] in June 2020, implementing the Settlement Scheme, which was introduced in consideration of the UK’s obligations within Part 2 of the Withdrawal Agreement on citizens’ rights, and is included in Appendix EU of the UK Immigration Rules. This status authorizes EU citizens to continue to stay in the UK for another five years after the transition period ends.

Thereafter, she applied for a social assistance benefit known as Universal Credit, to the Department for Communities in Northern Ireland [DCNI]. The DCNI dismissed her application on the premise that she doesn’t meet the residential requisites. The DCNI contended that only individuals with a right to reside in the UK, as defined under Regulation 9(2) of the Universal Credit Regulations 2016, are perceived to have their habitual residence in the UK and are thus qualified to assert Universal Credit. The applicants who are Nationals of Member States, such as CG, who have a right of residence under the EU Settlement Scheme are excluded from the list of prospective Universal Credit recipients under Regulation 9(3)(d)(i) of the  Universal Credit Regulations, 2016.

CJEU’s rationale

The question before the CJEU was, whether Article 18 of the Treaty on the Functioning of the European Union [TFEU] (the right to non-discrimination on the pretext of nationality and citizenship of Union) precludes the Member States from withholding equal accessibility to social assistance to Union citizens who have a right of residence under domestic legislation?


The CJEU on establishing its jurisdiction referred to Article 19(3)(b) TEU and Article 267 TFEU [Para 1 of the Article] that the Court has jurisdiction to give a preliminary ruling on the interpretation of EU law or the validity and interpretation of acts of the EU institutions. The Court held that the case’s concern falls in the realm of ratione temporis of EU law, according to Articles 126 and 127 of the Agreement on the withdrawal of the UK and the court has jurisdiction to issue a preliminary ruling on the referring court’s request, within the virtue of Article 86(2) of that agreement. However, the Court held that it lacks jurisdiction to rule on the first concern, which considers the interoperability of Regulations 9(3)(d)(i) of the 2016 Universal Credit Regulations with the UK’s obligations under the European Communities Act 1972 because that issue does not engage the understanding of EU law or the veracity of an act of the EU institutions within the connotation of the European Communities Act 1972.


Right to reside and non-discrimination

The CJEU then proceeded on to the subject of whether EU citizens can be unilaterally prohibited from social assistance and so regarded diversely from nationals. The Court observed that in all circumstances arising within the ambit ratione materiae of EU law, every Union citizen can depend on the prohibition of discrimination based on nationality enshrined in Article 18 TFEU. These instances also include incorporating the exercise of Article 20(2) TFEU para (a) and Article 21 TFEU’s right to move and reside within the boundaries of the Member States. The Court reiterated its long-held approach that Article 18 TFEU is a comprehensive right to non-discrimination that cannot be invoked in instances where a more specific expression of the same right also applies established in Dano and Jobcenter Krefeld cases. The Court further referred to Nalini Chenchooliah v Minister for Justice and Equality and held that EU citizens who move to or reside in Member State apart from their national, as articulated in Article 3(1) and Article 24(1) of  Directive (2004/38/EC), such individuals have the same right to equal consideration as nationals of the host Member State.

The Court taking the CG’s circumstances observed that it would fall in the realm of Article 24 of the Directive and Article 18 of TFEU won’t be applicable in the case. The Court held that the financial position of each individual ought to be determined, without taking consideration of claiming social benefits for examining whether the individual meets the requirement of having adequate resources [Article 7(1)(b) of the Directive]. Subsequently, as illustrated in the given scenario, CG doesn’t hold adequate resources, and it is plausible that she would become an unjustifiable responsibility on the UK’s social assistance structure. Therefore, the principle of non-discrimination enshrined in Article 24(1) of the Directive (2004/38/EC). In this instance, the order for reference directive cannot be relied forward upon.

Furthermore, even if the CG has the right to reside [temporarily] under national legislation, such right won’t be recognized as she doesn’t have any constitutional right under EU legislation [on the ground of Directive within the ambit of Article 24(1) of Directive]. The Court further held that the fact that national provisions regarding the right to reside of Union citizens which are more positive than those outlined in the Directive are unperturbed, does not imply that such regulations must be assimilated into the framework formulated by that directive, and it concludes, in specific, that it is up to each Member State to determine, as observed in Tomasz Ziolkowski and Barbara Szeja and Others v Land Berlin.

In the determination of the Charter’s spectrum in Article 51(1), the Charter’s provisions are only directed to the Member States when they are enforcing EU legislation. The Court in Terveys- ja sosiaalialan neuvottelujärjestö (TSN) v Hyvinvointialan liitto held that, according to Article 51(2), the Charter does not broaden the extent of EU law further than the European Union’s authorities, nor does it provide the European Union with any additional powers or responsibilities, nor does it amend the powers and tasks specified in the Treaties.

In this instance, the order for reference indicates that the UK authorities accorded CG a right of residency even though she lacked adequate resources. In regards to the right of residence, those authorities used more favourable norms. Those authorities acknowledged the right of a national of a Member State to reside freely on its territory, which is guaranteed to EU citizens under Article 21(1) TFEU, without giving reliance on the criteria and constraints imposed by the Directive.

This signifies that a Member State’s authorities can only withhold Union citizens, such as CG and her children social assistance after considering that such a rejection would not represent an “actual and substantial risk of infringement of their fundamental rights.” Furthermore, the Court stresses the following three fundamental rights, Article 1 CFREU compels the host Member State to ensure that the Union citizen can live in dignity. Under Article 7 CFREU, the state must also defend citizens’ right to privacy and family life, along with taking the highest concerns of children into account under Article 24 CFREU. The court concludes that when a citizen lacks the financial resources to meet his or her own and his or her children’s necessities and is isolated, those authorities should ensure that, even if social assistance is rejected, that person can nevertheless live with his or her children in a dignified way. Those authorities may consider all means of support given by national legislation, from which the citizen in question and her children are legally entitled to benefit, during that assessment.

CJEU’s labyrinthine rationale

The Court’s rationale in the CG case is far mysterious, at one place, the court held that EU citizens who have been accorded the right to reside under domestic legislation are duly recognized within the preview of the Charter. Subsequently, the court’s rationale on the right to equal treatment is conditionally both stringent and unreasonable. A rigorous understanding of the Directive [primarily Article 7(1)(b)] states, the applicant does not have the right to reside in the EU. However, under domestic legislation, she does have the right to reside. This is consonant with the Directive, which is a mechanism for minimum synchronization and permits the Member States to place more favourable standards under Article 37 of the Directive. The Court has previously in María Martínez Sala v Freistaat Bayern ruled that even though a Union citizen has a right of residence in a host country exclusively under domestic legislation, he/she/they may proceed to exercise the fundamental EU right to non-discrimination.

‘Article 8(2) of the Treaty attaches to the status of citizen of the Union the rights and duties laid down by the Treaty, including the right, laid down in Article 6 of the Treaty, not to suffer discrimination on grounds of nationality within the scope of application ratione materiae of the Treaty.’ [Para 62; Martínez Sala]

The Court’s rationale in the CG’s case took a divergent approach and held, a union citizen who has only been provided with the right to reside under domestic legislation may not exercise the fundamental right to equal treatment under Article 18 TFEU. She may rather depend exclusively on the auxiliary right to non-discrimination [Article 24; Directive]. Nevertheless, since the EU citizen is not granted citizenship and is not a resident under the Directive, the citizen cannot exercise her right to non-discrimination under the same Directive. Thereafter, the Court concludes that a Union citizen with a recognized right to reside would not have the right to equal treatment in the jurisdiction of the host Member State. This narrow rationale of the court draws a delineation between EU citizens who have a fundamental right to reside under EU law and those who have a lawful right under domestic legislation.

Notwithstanding the Court’s errors to uphold the right to equal treatment, CG is not denied all EU constitutional protection. The Court holds that the UK must continue to adhere to the Charter. CG cannot be denied access to social assistance when doing so would violate her EU Charter rights. Significantly, the Court over-looks Article 21(2) CFREU, which also guarantees for the right to non-discrimination on the account of nationality, but instead emphasizes Articles 1, 7, and 24 CFREU, which must be protected by national authorities.

In CG’s case, the protections enshrined under the Charter are accorded because she has a legal right to reside under domestic legislation. As held in Dano, an applicant who lacks sufficient resources and has not been awarded a more preferential residency right under national legislation will be denied access to the Charter.

Article 51(1) of the Charter states that the provisions of the Charter are addressed ‘to the Member States only when they are implementing Union law’. [Para 67, Dano]

Therefore, the Charter does not provide Union citizens with a broader spectrum of protection, but rather is exclusively accessible to the limited group of Union citizens who have been granted the right to reside under domestic law. The Court’s apparent concern was to preserve the individuals in this case, CG and her two children, and to assure that they can proceed to live concludes in Northern Ireland in a dignified manner. Unfortunately, by adopting a very restricted approach, the Court seriously restricted the impact of this judgment on the protection of the greater population of Union citizens and continues to undermine the fundamental right to equal treatment conferred by Article 18 TFEU.


* Sarthak Gupta is an undergraduate B.A; L.L.B [Hons] law student at the Institute of Law, Nirma University, India. His scholastic interest follows Constitutional Law, Human Rights & Gender Studies, and International Law.




*Akshay Sharma and **Nivrati Gupta

The present state of collective bargaining in Ireland has hit record low. While collective bargaining is regarded as the mechanism of sharing prosperity and maintaining the balance of power between individuals interacting in a market, Ireland stands out as the only western-European EU member that does not have binding collective-bargaining legislation thus, leading to a low coverage of collective bargaining. On May 31st, Forsa Trade Union of Ireland published a report titled “Collective Benefit – Harnessing the power of representation for economic and social progress”, which stated that collective bargaining coverage in Ireland is at 33.5 percent, the second-lowest among the 14 countries in EU membership since before 2004. This blog post explores the international laws of collective bargaining that are applicable to Ireland and further, the reasons that can be attributed for their potential breach.

ILO convention and its applicability to Ireland

Ireland ratified the Right to Organize and Collective Bargaining Convention, 1949 (No. 98) in 1955. It is subject to constant supervision by the ILO on its compliance with this convention. As of now, it appears that Ireland is in breach of Article 4 of this convention that aims at encouraging voluntary negotiation between employers or employers’ organizations and workers’ organization through national policies, rules and regulations. There is one more convention called Collective Bargaining Convention, 1981 (No. 154) which defines collective bargaining and makes it mandatory for the Member States to take measures to improve the representation of the workers union. However, this convention is not ratified by Ireland.

However, it should be observed that Ireland has ratified Convention 87 on Freedom of Association, the ILO Committee on Freedom of Association (which is empowered to make binding determinations on the requirements of ILO conventions under its purview) has held that the right to bargain freely with the employer is an essential element of freedom of association.

Without this indispensable element of bargaining freely, the whole aim of forming an association might get defeated. Even though Ireland is obligated to comply with convention 87, the present situation is in stark contrast with the bare minimum expectations of the instrument. Presently, Ireland is performing below the EU average in respect of industrial democracy and associational governance which brings Ireland near the bottom on worker representation and participation in economic decision-making.

There are two more recommendations of ILO (recommendation NO. 91and No. 163) that aims at forming policies and implementing them for instituting principles, operations and practices of collective bargaining. However, they are only recommendations and there is no mandate to implement them. The right to bargain collectively cannot be brought to its realization if the laws of a country leave it entirely up to employers whether or not to recognize and negotiate with workers’ trade unions.

The laws of the European Union

Ireland is subjected to the European Convention on Human Rights that recognizes freedom of association under Article 11. The right of collective action was recognized by the European Court of Human Rights as one of the elements of trade union rights laid down by Article 11 of the ECHR. Further, collective bargaining as an essential element of Article 11 is observed in the landmark judgments of the European Court of Human Rights like Demir and Baykara v Turkey. The court observed that though, indulging in collective bargaining might not be a statutory mandate for an employer in Ireland, but if a generally applicable practice in the field of collective bargaining is shared throughout Europe, such practice regarding collective bargaining may be binding on contracting and even non-contracting states that do not follow those practices.

Ireland ratified the European Social Charter in 1964 and the Revised European Social Charter in the year 2000, accepting 92 of the 98 paragraphs of the Revised Charter. Article 6 of the European Social Charter mentions the right to bargain collectively, Ireland has duly accepted and ratified all the four provisions of Article 6 of the Revised European Social Charter. In the landmark case of ICTU v. Ireland, the European Committee of Social Rights clarified the relationship between the values of unrestricted trade and competition and those of freedom of association and collective bargaining. the European Committee of Social Rights held that Article 6(2) of the European Social Charter on the right to collective bargaining applies to self-employed persons, restrictions based on competition law or commercial law are not legitimate and/or are not necessary for a democratic society and also violated the European Social Charter.

The ECSR further pointed out that the restrictions on trade practices cannot go parallel to a democratic society. Unrestricted trade and fair competition are highly regarded principles that benefit consumers in several different ways. This should not, however, prevent specific groups of self-employed people in specific jobs from exercising their collective bargaining rights.

To establish a free and democratic society, it is important to have the opinion of every individual getting voiced in the society. Without principles of representations, we cannot make sure that the policies, rules, and regulations that are expected to hold the fabric of society together have taken into consideration every opinion of every individual.

Article 28 of the EU Charter of Fundamental Rights which is based on Article 6 of the European Social Charter grants the right of collective bargaining and action to workers, employers or their respective organizations. However, its compliance is not evident in Ireland. The main reason that can be attributed to this unrealized breach is that there is no obligation on the part of the employer to engage in a bargaining process with the employees. This weakens the industrial relations machinery and thus, there is no incentive for workers to involve in a negotiating process.


Reasons for low coverage of collective bargaining in Ireland

The report attributes this relatively low rate to the effects of the financial crisis, a series of court decisions striking down certain industrial relations laws as unconstitutional, and the voluntarist tradition of industrial relations in Ireland. The report contends that there are not any legal obligations on the government to engage itself in any kind of collective bargaining. The whole process is based on the will of the parties.

In the recent case Náisiúnta Leictreach Contraitheoi rÉireann v Labour Court, the High court made two imperative observations. First that the specific SEO for the electrical contracting industry was ultra vires the Industrial Relations (Amendment) Act 2015 because of procedural flaws in its adoption and secondly that this2015 Act was unconstitutional, again as an impermissible delegation of legislative power. A ‘sectoral employment order’ (SEO) aims to set out minimum pay rates as well as pension and sick pay schemes for a specific economic sector. The court concerning how an SEO is issued observed that the delegation of legislative power cannot be provided to any branch other than legislative. The labour court is entitled to decide if there are fair and sufficient grounds upon which the minister can issue an SEO and based on that the court makes recommendations to the minister to issue the order. This decision exposed some contradictions of the Industrial Relations (Amendment) Act 2015and the process of issuing SEO. The first one is that the power to decide if sufficient and fairgrounds for issuing SEO rests with labour court and not minister, which is a trespass of power of the legislation by the different branch of government (judiciary). The second contradiction is that collective bargaining in Ireland is of a voluntarist nature and thus, an order cannot mandate an organization or company to do something. This decision though in an appeal is subject to criticism but whatever the means was for issuing an order, it somehow guaranteed the fulfilment of fair demands of the workers.

Furthermore, even the constitution of Ireland does not recognize the right to collective bargaining and the courts have repeatedly declined to recognize a constitutional obligation on employers to recognize or bargain with trade unions. The Supreme Court went so far as to suggest in Ryanair v Labour Court that employers may even enjoy a constitutional ‘right to operate a non-unionized company. Without any overarching framework or protection, there might be a possibility that the policies and legislation specific to the cause of worker’s representation may not function properly and this is what is happening in Ireland right now.

Without any mandating legislation, the principle of collective bargaining is nothing but a toothless tiger. The whole purpose of establishing a trade union is to negotiate with the employer for the bare minimum standards of work and living. But with the sheer disregard of international law and no efforts to improve the situation, the government is giving green light to the corporate entities to give a cold shoulder to the demands of workers.


There are all-inclusive international labour laws and laws of the European Union that aim towards the cause of collective bargaining, but looking at the present state of Ireland with regards to collective bargaining, it appears that there might be a potential breach of the above-mentioned instruments and consequently international laws. The Minister for Enterprise, Trade and Employment Leo Varadkarhas has set up a high-level working group (expected to provide a report by July 2021) that is devoted to finding out issues, implications, legal and constitutional impediments, and review collective bargaining and industrial relations in Ireland. Further, the group will provide recommendations for expanding the coverage of the same. Ireland needs to take measures like strict implementation of EU laws and enacting mandating legislation on collective bargaining. Steps should be taken not only for preventing Ireland from any potential breach and consequential penal actions, but also because at the end of the day, it is the workers whose fair demands of wage parity, workplace democracy, and stable life are getting curtailed.


*Akshay Sharma: Akshay Sharma is a penultimate year LLB Honours student of a 5-year integrated law degree program at Institute of Law Nirma University with a keen interest in Public International Law. In the future, Akshay plans to pursue his Masters in the same.

**Nivrati Gupta: Nivrati Gupta is a penultimate year B.Com LLB Honours student of a 5 year integrated law graduate course at Institute of Law, Nirma University, India.


The editors of the KSLR EU Law Blog are pleased to announce recent publications in the field of EU law, with a discount attached for our readers.

Rightful Relations with Distant Strangers

Kant, the EU, and the Wider World

Aravind Ganesh

This book provides a philosophical critique of legal relations between the EU and ‘distant strangers’ neither located within, nor citizens of, its Member States. Starting with the EU’s commitment in Articles 3(5) and 21 TEU to advance democracy, human rights, and the rule of law in ‘all its relations with the wider world’, Ganesh examines in detail the salient EU and international legal materials and thereafter critiques them in the light of a theory of just global legal relations derived from Kant’s philosophy of right. In so doing, Ganesh departs from comparable Kantian scholarship on the EU by centering the discussion not around the essay Toward Perpetual Peace, but around the Doctrine of Right, Kant’s final and comprehensive statement of his general theory of law.

The book thus sheds light on areas of EU law (EU external relations law, standing to bring judicial review), public international law (jurisdiction, global public goods) and human rights (human rights jurisdiction), and also critiques the widespread identification of the EU as a Kantian federation of peace.

Aravind Ganesh is Vice Chancellor’s Research Fellow in Law at Oxford Brookes University, UK.

Mar 2021   |   9781509941315   |   352pp   |   Hbk   |    RSP: £70

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Torture, Inhumanity and Degradation under Article 3 of the ECHR

Absolute Rights and Absolute Wrongs

Natasa Mavronicola

This book theorises and concretises the idea of ‘absolute rights’ in human rights law with a focus on Article 3 of the European Convention on Human Rights (ECHR). It unpacks how we might understand what an ‘absolute right’ in human rights law is and draws out how such a right’s delimitation may remain faithful to its absolute character. From these starting points, it considers how, as a matter of principle, the right not to be subjected to torture or inhuman or degrading treatment or punishment enshrined in Article 3 ECHR is, and ought, to be substantively delimited by the European Court of Human Rights (ECtHR). Focusing on the wrongs at issue, this analysis touches both on the core of the right and on what some might consider to lie at the right’s ‘fringes’: from the aggravated wrong of torture to the severity assessment delineating inhumanity and degradation; the justified use of force and its implications for absoluteness; the delimitation of positive obligations to protect from ill-treatment; and the duty not to expel persons to places where they face a real risk of torture, inhumanity or degradation.

Few legal standards carry the simultaneous significance and contestation surrounding this right. This book seeks to contribute fruitfully to efforts to counter a proliferation of attempts to dispute, circumvent or dilute the absolute character of the right not to be subjected to torture or inhuman or degrading treatment or punishment, and to offer the groundwork for transparently and coherently (re)interpreting the right’s contours in line with its absolute character.

Natasa Mavronicola is a Reader in Law and Deputy Head of Research at Birmingham Law School, University of Birmingham, United Kingdom.

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Cassis de Dijon

40 Years On

Edited by Albertina Albors-Llorens, Catherine Barnard and Brigitte Leucht

Why is the 1979 the Court of Justice judgment in Cassis de Dijon so famous and so significant in the evolution of EU trade law?. As this landmark judgment approaches middle age, this book revisits this decision with the benefit of hindsight: why did the Court of Justice decide Cassis de Dijonas it did? How has the decision been developed by the EU? And, looking forward, how has the decision been used to develop international trade? This book brings together some of the leading writers in the field of EU trade law, constitutional law and European history for a fresh examination of his ground-breaking judgment, looking at it from the perspective of its past (who, what and why); its present (is it making a difference?); and its future (how does it fit in international trade agreements, including the future UK-EU FTA?).


Albertina Albors-Llorens is Professor of EU Law at the University of Cambridge, United Kingdom.

Catherine Barnard is Professor of European Union and Labour Law at the University of Cambridge, United Kingdom.

Brigitte Leucht is Senior Lecturer in German and European Studies at the University of Portsmouth, United Kingdom.

Feb 2021   |   9781509936632   |   304pp   |   Hbk   |    RSP: £85

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EMU Integration and Member States’ Constitutions

Edited by Stefan Griller and Elisabeth Lentsch

In this book, legal scholars from the EU Member States (with the addition of the UK) analyse the development of the EU Member States’ attitudes to economic, fiscal, and monetary integration since the Treaty of Maastricht.

The Eurozone crisis corroborated the warnings of economists that weak economic policy coordination and loose fiscal oversight would be insufficient to stabilise the monetary union. The country studies in this book investigate the legal, and in particular the constitutional, pre-conditions for deeper fiscal and monetary integration that influenced the past and might impact on the future positions in the (now) 27 EU Member States.

The individual country studies address the following issues:

– Main characteristics of the national constitutional system, and constitutional culture;

– Constitutional foundations of Economic and Monetary Union (EMU) membership and related instruments;

– Constitutional obstacles to EMU integration;

– Constitutional rules and/or practice on implementing EMU-related law; and

– The resulting relationship between EMU-related law and national law

Offering a comprehensive and detailed assessment of the legal and constitutional developments concerning the Economic and Monetary Union since the Treaty of Maastricht, this book provides not only a study of legal EMU-related measures and reforms at the EU level, but most importantly sheds light on their perception in the EU Member States.


Stefan Griller is Professor of European Law at the University of Salzburg, Austria.

Elisabeth Lentsch was formerly Post-Doc Researcher in the Horizon 2020 Project ‘The choice for Europe since Maastricht’, from 2015 to 2019.

Feb 2021   |   9781509935789   |   704pp   |   Hbk   |    RSP: £150

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The Principle of Mutual Trust in EU Criminal Law

Auke Willems

This book develops a conceptual framework of the principle of mutual trust in EU criminal law. Mutual trust is a household term in the EU criminal law vocabulary and is widely regarded to be a prerequisite for a successful application of mutual recognition. But despite its importance, the parameters of the concept are not clear. The book demonstrates that mutual trust is multi-faceted: combining the elements essential to a successful EU criminal law, as part of the Area of Freedom, Security and Justice.

The book approaches trust from multiple angles. First, a study of social science literature. Second, a meticulous assessment of mutual trust in EU criminal law. Third, a study of trust in US interstate criminal justice cooperation. Finally, the book identifies a comprehensive approach to tackle trust related difficulties in EU criminal law.

This timely book will be of great interest to anyone looking to gain a full picture of this core principle in EU criminal law.


Auke Willems is Lecturer in EU Law at the University of Liverpool and a Visiting Fellow at the London School of Economics and Political Sciences.

Feb 2021   |   9781509924547   |   352pp   |   Hbk   |    RSP: £80

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The European Super League: Opening the Floodgates of Competition Law

By *Eduardo Gracias Baptista and  **Shanay Das Guru


Recent days have seen the meteoric rise and fall of the European Super League (ESL). This new league would have consisted of 15 founding clubs and 5 other clubs; the former consisting of ‘big clubs’ which could not be relegated and the latter in clubs who performed well over the past years on a rotational basis. Following the announcement, the proposal was met with severe backlash and most founding clubs withdrew from the competition, marking the ESL’s swift collapse.

Notwithstanding, it is still worth analysing whether it would have been in line with EU competition law. The possible sanctions that would have followed also raise some interesting points. The discussion that follows is based on the ESL, as structured and described in its press release. This analysis shall seek to contribute to the debate on the desirability and lawfulness of future similar leagues and shed some light on the often uncertain and murky waters of EU competition law.

  • The Relevant Market

According to a 2003 Commission decision, football clubs are considered undertakings, as defined in Klaus Höfner and Fritz Elser v Macrotron GmbH, and are thus capable of affecting competition in the internal market through their interactions, within the meaning of Article 101(1) TFEU. The analysis on the possible interference of competition, however, must be preceded by the definition of the relevant market, within which the ESL and other leagues could be in competition.

The relevant market is composed of the products which the consumers (football fans) regard as interchangeable. In other words, demand substitutability, concerning the various national and international competitions and the accompanying revenue, plays a key role; if a price increase would cause fans to switch from one competition to another, then this means that they compete in the same market.

  1. The national and European markets

Firstly, there are markets which arise from the various national leagues of the Member States. Tied with national identity, consumers have a proclivity to prefer games which involve a club from their country. Taken as an example, if the prices of the TV broadcasts of the clubs of a country increased, consumers would not switch to foreign clubs. The existence of the ESL would not affect these national markets because, as stated in their press release, the ‘traditional domestic match calendar which remains at the heart of the club game’ would be preserved; this is because the ESL would consist of midweek fixtures in conjunction with the games of the domestic leagues. This harmonious coexistence is further confirmed by the envisioned ‘solidarity’ payments which would be handed out to national associations.

Secondly, consumers often also watch European football, primarily in the form of the Europa League (EL) and the Champions League (CL). These constitute European markets, not only due to the fact that the schedules do not overlap as much as possible with the national leagues, but also because of the very nature of European football. These leagues were created to meet the need of determining who is the definite and genuine champion of Europe. While loyalty to one’s club can be strong and absolute in the European leagues, it is often observed that the elimination of one’s own club prompts a fan to realign their support to a different club, often of the same nationality. National leagues, on the other hand, are not only a means to qualify for the European spots, but also ends in themselves, to quench the thirst for domestic supremacy over one’s rivals for the much-coveted bragging rights. In this sense, there is a two-tier ‘us versus them’ mentality, firstly among clubs in the domestic leagues and then as a collective of national clubs in the European sphere.

2. The Idiosyncrasies of ‘Big Clubs’ and the new European Market

The 15 founding clubs are meant to be the most marketable, profitable, and prestigious football clubs around Europe and around the world. Their wealth of resources and superlative performance are inextricably linked; over the past 30 years throughout Spain, England, and Italy, only 9 times has the league been won by a club other than the founding clubs of the ESL. Due to the utter magnitude of these clubs, they attract consumers from every corner of the world.

Consumers watch a competition when there is a team with which they feel some sort of affinity and not because of the competition itself. This is not the case, however, for consumers who watch a competition because it is the best product available. Related to this, just as the CL is arguably not in competition with the EL, the same holds true for the ESL in relation to the other leagues. Consumers who feel a high affinity with the teams in the ‘old’ markets would continue to watch it over the ESL, just as consumers who preferred the clubs in the EL watched this competition and not the CL. In the case of consumers who would watch the ESL because of its quality, it cannot reasonably be argued that this is problematic because, following that line of thinking, the Champions League would be equally problematic as regards the EL. In other words, there is an inevitable restriction that must be accepted with the introduction of better competitions. Lastly, the fact that there are 5 spots allocated to clubs based on merit would mean that the ESL would not have a potentially troublesome closed character.

With this in mind, the authors argue that the ESL would be independent from the other markets to an extent sufficient and acceptable as to create a new European market. Therefore, it would not violate Article 101(1) TFEU.

  • The turn of the legal tide

Within the last 6 months, there have been two decisions which also discuss the paradigm of the many conflicting interests of sporting authorities. In the International Skating Union (ISU) case, the General Court observed that the ISU fulfils regulatory functions and engages in commercial activity, thereby leading to a conflict of interests that is problematic from a standpoint of competition law. ISU rules actively penalising athletes for taking part in sporting events not authorised by it were held to be in violation of competition law. If one may analogise this to UEFA, upon the announcement of the 12 ESL teams, UEFA threatened to ban participating players from its own competitions, a clear show of its regulatory power. On the other hand, UEFA has a financial interest in maintaining its leagues, having earned an estimated €3.86bn in the 2018/19 season. Although the European Super League in its latest form has been shelved for the time being, it would be interesting to imagine a world where it had gone on. Keeping the public opinion and strong opposing voices aside for a second, if one were to analyse it purely from the standpoint of EU competition law, it is quite likely that the proposed UEFA action of restricting the ESL and banning players from its own leagues would have been found to be in breach of competition rules.

In the German Wrestling League case, the Nuremberg Court of Appeals held that while sporting bodies are not absolutely barred from protecting their own economic interests, excluding athletes merely for taking part in events hosted by rival organisers is a forbidden measure under EU and German antitrust law. The Court referred to the ISU case in quoting that sports federations must not use unfair means in protecting their economic interests.

In the aforementioned cases, the respective sporting authority in question brought up the ‘legitimate objective’ argument in order to justify the ban on players, referring to the need to protect the integrity of the sport under Article 165 TFEU; however, in both cases, it was held to be disproportionate. As we speculate on the possibilities if the ESL had gone ahead as planned, it must be noted that the Commission has been cautious in its response, deferring the matter to relevant arbitration arrangements and national courts. Although long-standing scholarly opinion has been sceptical of the probability of success of such a format as the ESL, the recent shift in case law towards promoting greater autonomy for athletes and breakaway leagues suggests that ESL might have had its day in court if matters so escalated. The ESL would have a strong case against UEFA on the basis of the fact that the latter not only organises the biggest football championships but also enters into contracts to exploit those same competitions commercially, thereby placing UEFA in a compromised position with respect to its regulatory position under Article 101 TFEU. Its regulatory functions must conform to settled case law on the application of Article 102 TFEU, such as in the MOTOE case. Reasoning by analogy, UEFA would be prohibited from distorting competition by favouring competitions that it organises, such as the CL and the EL, to the detriment of other undertakings, such as ESL.

  • The ESL paradox

While competition law can be quite surgical in what is and what is not the relevant market for a certain purpose, it is noteworthy to mention that these markets not only cater to humans but are also catered by humans – footballers and countless support staff who bring the game onto our screens and into our lives. And so, while it may be confounding to understand why the ESL has been abandoned if indeed it constitutes a distinct relevant market in and of itself, the picture becomes a little clearer when one considers the immense dependence of the existing football structure on an institution such as UEFA. This may be called the ESL paradox – while it constitutes a relevant market independently due to the unique taste of its consumers, such a relevant market is operated by players who are equally dependent on other relevant markets, such as national leagues, for their careers and interests. Such an interpretation explains why the ESL had to be cancelled despite not being in as much of a legal grey area as it has been made out to be in.  This problem needs to be analysed from the other side of the competition law lens since the paradox posed by the ESL is not so much about the relevant market as it is about the dependence of the humans who run it on other relevant markets. For the time being, the backlash and associated risks of carrying on with the ESL are much greater than the estimated benefits. And so, despite not being contrary to EU competition law, the ESL must display deference to its current master, UEFA, at least as presently constituted.


 The ESL has for long been a mere theoretical possibility passionately discussed among football enthusiasts, however, the latest attempt has been nothing short of concrete. Although the plan has been abandoned for now, the authors contend that an examination of its compliance with competition law is necessary due to its prospective return in the future; and in this regard, conclude that it does not violate competition law by virtue of having a well-defined independent market of its own. If the ESL is to sink, it will not be by navigating the waters of competition law.

The shift in the status of its existence has been complemented by simultaneous developments in case law which present a much brighter slew of options for the European Super League. Recent decisions highlight that UEFA is more likely to be found in breach of competition law instead of a competing association such as the ESL. Despite constituting a sufficiently distinct market of its own, the ESL finds itself in a paradox marked by great dependence on existing structures. There is nothing more human than this dichotomy between the old and the new; if the ESL is to find itself in a position where its existence is not threatened by a decades-old hierarchy, it must bridge the treacherous gap between the paradigm which presently governs the world of football and the future it envisions for itself.


*Eduardo Gracias Baptista: Eduardo Gracias Baptista is a second year European law student at Maastricht University, also taking part in the Faculty of Law’s Honours programme. Eduardo currently holds the position of student researcher to Dr. Biermeyer in the field of Luxembourg corporate law. In the future, Eduardo plans to pursue a career related to EU law.

**Shanay Das Guru: Shanay Das Guru is a second year European law student at Maastricht University. His interests include intellectual property law, human rights, and competition law. Shanay’s legal writing invariably addresses topical problems such as ownership of data collected by COVID-19 apps. Of late, he has been working on a paper advocating for greater international regulation of vaccine distribution as part of his portfolio for the Faculty of Law’s Honours programme.


Book Review: Federico Fabbrini, Brexit and the Future of the European Union

Book Review of Federico Fabbrini, Brexit and the Future of the European Union, Oxford University Press, 2020, 160 pp, ISBN: 9780198871262.

A European Defining Moment: The ‘Ever Closer Union’ in the Aftermath of Brexit

*Michele Corgatelli 

Five years after the end of World War II, French statesman Robert Schuman proposed a Franco-German cooperation in the coal and steel industry aimed at making future conflicts between the two countries ‘not merely unthinkable, but materially impossible’.[1] On such foundations, Europe was envisioned as a dynamic process of integration: ‘(it) will not be made all at once, or according to a single plan’, the Schuman Declaration states; ‘It will be built through concrete achievements which first create a de facto solidarity’.[2]

The strive towards an ‘ever closer union’ [3] represents therefore a purpose, a goal, and even a promise. However, the fact that Europe was not meant to be built in a day can determine a state of permanent institutional restlessness, especially when the integration path cyclically stalls, or shows its weaknesses. In this sense, it has been argued that the United Kingdom’s departure (‘Brexit’) caused a ‘Machiavellian moment’, forcing the Union to face its own temporal finitude, proving that the project could eventually fail and fall apart.[4] Unquestionably, Brexit tests once again the willingness to take the project a step further after a considerable jolt to the European institutional architecture.

In his recent book ‘Brexit and the Future of the European Union’, Federico Fabbrini proposes a multi-facet analysis of this disruptive event through normative and historical lens, thus reconstructing its concise and clear record, from which to draw, through easy consultation, the sequence of facts that overlapped in the past years. Moreover, his inquiry conveys the dynamic dimension of the integration process, separately considering the Union ‘during’, ‘because of’, ‘besides’, ‘after’, and ‘beyond’ Brexit.

The book starts by outlining the remarkable synergy among European institutions and unity among other member States that emerged during the withdrawal negotiations (p. 9). However, the challenges posed by the ‘transitional’ implications of Brexit, for example the re-equilibrium of the balance of powers within European institutions (p. 36) add up to a series of past and present crises that have shaken the Union, namely the Euro-crisis, the migration crisis, the rule of law crisis, climate change, the enlargement to new members, and coronavirus (pp. 61-75).

The first chapters, through a logical progression, functionally lead to the dissertation of the post-Brexit future, where Fabbrini shows that the real paralysing obstacle to a further European integration is represented by the unanimity requirement for the amendment of the treaties (p. 95).

The incoming Conference on the Future of Europe could carry the transformative power of the Messina Conference of 1955 (p. 119) which broke through a paralyzed European project leading to the establishment of the European Economic Community and the European Atomic Energy Community (pp. 119-121) but could also fail like other previous attempts (pp. 121-123). Fabbrini proposes a solution to overcome the fossilization of the treaties: the draft of a new one, the ‘Political Compact’, submitted to a different ratification rule – not the unanimity, but a super-majority of for example three-quarters of the EU Member States (pp. 110, 124-129). [5] Moreover, ‘the treaty would not apply to the non-ratifying states, guaranteeing them the free choice of whether or not to join the Political Compact, with all the consequences that follow’ (p. 125).

Although the negotiation for further integration will certainly be easier without a champion of opt-outs halting it, [6] it is worth recalling that the European Constitution was turned down in 2005 by voters in France and the Netherland, while Irish voters rejected the Treaty of Nice in 2001 and the Treaty of Lisbon in 2007 (p. 98) proving that veto is an obstacle to future progresses even after Brexit.

The Author’s choice to recall the American precedent of the Philadelphia Convention of 1787, which reinterpreted its mandate to propose amendments to the Articles of Confederation and drafted the Constitution instead (pp. 127-128), is particularly significant. Indeed, that precise historical outcome has been considered one of the very few ‘constitutional moments’, a concept ‘distinguished by lasting constitutional arrangements that result from specific, emotionally shared responses to shared fundamental political experiences’.[7]

The American example, whose historical scope and value were not vitiated by the presence of a super-majority ratification mechanism, proves that unanimity is not necessary to lay the foundation of a lasting constitutional architecture. The existential threat to the European Union posed by Brexit, and the coronavirus crisis, could in fact play the role of one of those unique path-dependent moments. Fabbrini’s proposal of a ‘Political Compact’ provides a remedy to the block represented by the unanimity rule, that prevents the Union to effectively utilize this moment and to progress towards an ‘ever closer union’, although merely concentrical.[8]

If the Schuman Declaration of 1950 successfully led to the establishment of the European Coal and Steel Community in 1951, the other proposed area of European cooperation, namely the one in military and defence, was rejected by the French Assemblée Nationale, that voted down the European Defence Community in 1954 (pp. 119-120). After a momentary paralysis, the transformative power of the Messina Conference, a year later, founded the modern Europe (pp. 119-121).

After Brexit, a big halting force to integration is no longer part of the Union; [9] the Conference on the Future of Europe, striving on a renewed Franco-German cooperation, could in fact turn out to be a defining moment, if the right normative solutions – such as the ‘Political Compact’ proposed by Fabbrini – are taken to overcome the current European architectural rigidity caused by the unanimity impasse.

To conclude, ‘Brexit and the Future of the European Union’ stand out for clarity: it combines a holistic approach to a complex event, with a concise writing, devoid of unnecessary socio-political mannerisms. At the same time, the objective analysis is not an aseptic reconstruction of Brexit’s implications, being constantly integrated with original systematic reconstructions.[10]  Most importantly, the analysis flows from a problem, namely the obstacles to reform, to a proposed solution, making the book not only academically original, but socially useful as well.

*Michele Corgatelli, LLM by Research Candidate, University of Glasgow.


[1] Schuman Declaration (9 May 1950, whose recurrence is named ‘Europe Day’). Robert Schuman, who during the War escaped deportation to the Dachau concentration camp, was given the title of ‘Father of Europe’ after he left the office of first President of what is now the European Parliament. For the contribute of Jean Monnet to the Declaration, see Michael Burgess, ‘Entering the Path of Transformation in Europe: The Federal Legacy of the Schuman Declaration’ (2011) 29(2) Fr. Politics Cult. Soc. 4.

[2] ibid.

[3] Solemn Declaration on European Union (Stuttgart, 19 June 1983).

[4] Luuk van Middelaar, ‘Brexit as the European Union’s “Machiavellian Moment”’ (2018) 55 CML Rev. 3, 5.

[5] Fabbrini championed the ‘Political Compact’ in his previous study commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs (‘Possible Avenues for Further Political Integration in Europe – A Political Compact for a More Democratic and Effective Union?’), available at: <>.

[6] The other champion of opt-outs is Denmark. Rebecca Adler-Nissen, ‘Behind the scenes of differentiated integration: circumventing national opt-outs in Justice and Home Affairs’ (2009) 16(1) JEPP 62, 63.

[7] ‘The overwhelming majority of the constitutions that we know do not have these specifics. Constitutions serve other, more technical, goals (…). One of the drawbacks of a constitution that emerges without the blessing of a constitutional moment is that it does not contribute to a sense of union, or to the formation of identity, among members of the society to which it applies’. András Sajó, ‘Constitution without the constitutional moment: A view from the new member states’ (2005) 3(2-3) ICON 243, 243.

[8] The post-Brexit attraction to the ‘variable geometry’ model of European integration is indeed a peculiar phenomenon, that could come from two sources: ‘According to one view, the distrust of the EU expressed by the majority of British voters reflects similar feelings in other parts of the European Union, and this implies that the Union should evolve into a less centralized and more flexible organization so as to assuage the growing mass of Eurosceptic citizens across Europe. Another explanation might be that the UK’s defection may act as an incentive for some other countries to advance the integration project more vigorously.’ Bruno De Witte, ‘The future of variable geometry in a post-Brexit European Union’ (2017) 24(2) MJECL 153, 155-156.

[9] ibid, 154.

[10] For instance, the Author detects three competing visions of European integration: ‘polity, which requires solidarity and a communion of efforts towards a shared destiny; (…) market, designed to enhance wealth through commerce, but with as limited redistribution as possible; (…) [autocracy,] which instead sees the EU as a vehicle to entrench state authoritarian rule, based on national identity and sovereignty claims, but with crucial transnational financial support.’ (60, 75-80).