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Numerosos medios periodísticos, entre ellos, Mundo Deportivo, El Diario Vasco y ABC.es, publicaron el pasado día 13 de Noviembre de 2015 la noticia relativa a la petición que Francisco Verdún tiene formulada ante el Parlamento Europeo sobre la incompatibilidad de la normativa UEFA con el Derecho de la Unión Europea. Se puede consultar la noticia en cualquiera de los siguientes enlaces:
http://www.mundodeportivo.com/futbol/20151113/30148526150/eurocamara-acepta-investigar-que-las-sanciones-a-los-clubes-pasen-por-el-tjue.html
http://www.agencias.abc.es/agencias/noticia.asp?noticia=2031185
http://www.diariovasco.com/agencias/201511/13/eurocamara-acepta-investigar-sanciones-533939.html
When in June 2013 it was confirmed by the Court of Arbitration for Sport (CAS) the serious sanction that was imposed by UEFA to the Malaga Football Club in application of the Financial Fair Play Regulations, I decided to analyze the regulations of Financial Fair Play from the perspective of the European Union law. From my view, it was evident that these regulations should comply with the European Union law as they govern aspects of the economical activity resulting from professional football at European level.
Through this investigation I became convinced that some of the principles of the European Union law were breached by the said UEFA regulations. A number of these points had already been argued unsuccessfully and others had not been raised before.
On the 2nd July 2013 I filed a complaint before the European Commission concerning the disciplinary rules and practices of the UEFA which I consider incompatible with the European Union law.
It is difficult to summarize in a plain language the content of the complaint but it can be said that the main aspects concerned, on the one hand, with the breach of the effective legal protection resulting from the fact that the European football clubs (undertakings) are excluded from the right to apply before any court of a Member State for a question to be referred to the European Court of Justice to give preliminary ruling on the interpretation of the compatibility with the European Law of any rule which is to be applied to European clubs within the scope of these competitions.
This right is granted by the European Law to all undertakings –including non European- which develop their activities within the European Union but football clubs are excluded of exercising this right.
The system established by UEFA imposes on the European football clubs (undertakings) and the European football players (workers) the obligatory submission to the jurisdiction of the CAS (article 59 UEFA Statutes and article 43 UEFA CL&FFP regulations, among other provisions).
It must be observed that being CAS an arbitration tribunal, it does not have the nature of a court or tribunal of a Member State and therefore it can not raise a question for a preliminary ruling before the Court of Justice of the European Union (CJEU) . Additionally, it should be noted that decisions of CAS can be challenged only before the Swiss Jurisdiction and not being Switzerland a Member of the European Union, a Swiss court or Tribunal can not raise a question for a preliminary ruling before the CJEU.
It is then evident that UEFA regulations aim to situate outside the control of the Court of Justice of the European Union the decisions and rules affecting to a sector of huge economic importance within the European Union such as football business and competitions. The European football clubs, players and other economic operators are placed in a position of defencelessness as they can not exercise the rights that the European Union law confers on undertakings, workers and citizens in general .
On the other hand, in my complaint I also affirmed that UEFA Disciplinary Regulations infringe the principle of legality .In accordance with the traditional principles governing administrative disciplinary law of the member States, the principle of legality which is also enshrined in the Charter of Fundamental Rights of the European Union must be observed. By means of this principle any disciplinary regulation must lay down the specific sanction corresponding to the specific unlawful conduct. This is the only system which permits to assess whether a sanction that has been adopted is fair or not, avoiding unfairness and partiality. By way of example, it can be mentioned art. 6 of UEFA Disciplinary Regulations establishing in its third paragraph that the fines must not be less than 100 Euros or more than 1.000.000 Euros. In addition, it is surprising that art. 21 of the Procedural Rules governing UEFA Club Financial Control Body establishes only a list of disciplinary measures - from warning to the exclusion of a competition- and does not foresee to which conduct corresponds each sanction. There is a clear breach of the principle of legality and of the principle of legal certainty.
Furthermore, article 47 of the Charter of Fundamental Rights of the European Union (right to an effective remedy) and the principle of effectiveness established by the CJEU’s case law have been infringed by the said UEFA regulations. It must be noted that by virtue of the principle of effectiveness the rules of the proceedings laid down in order to guarantee the exercise by citizens and undertakings of the rights conferred by the European Union law must not make impossible or excessively difficult the exercise of the said rights. As national football federations forming part of UEFA exercise public functions, it can be said that these principles are being breached by the member States consenting UEFA‘s application of financial fair play regulations and disciplinary regulations.
It was also mentioned in the complaint the infringement of the principles of freedom to provide services (art. 56 TFEU) , freedom on the movement of capital (art. 63 TFEU) , principle of free competition (art. 101 TFEU) , principle of prohibition of abuse by one or more undertakings of a dominant position within the internal market, as the said regulation may impose a number of restrictions, affecting the free market. This situation affects an important financial activity which has many operators such as clubs, players, sponsors, agents, etc, whose economical interests are seriously damaged.
The complaint is being proceeded by the European Commission. After one and a half year I received a letter from the European Commission apologizing for the delay in answering due to the juridical complexity of the issue and announcing its intention of closing the file. Additionally, I was given the possibility to make new allegations what I did on 23 March 2015. Since that date I have not received any notification from the European Commission concerning the case, therefore it continues open.
I also submitted a petition to the European Parliament on 18 January 2014 concerning the same issues. That petition was admitted on 19 January 2015 and the Petition Committee asked the European Commission to carry out a preliminary investigation on the different aspects of the problem.
Recently, the petition has been considered available to supporters. Consequently, those who agree with my petition and would like European Parliament to adopt measures concerning the matter in order to change the existing model can express their support to my petition. A massive support to the petition (number 0240 year 2014). would indicate to European legislators and to European Commission that citizens do not accept the current model of the professional football at European level and wish a different model that would respect European Union law and would be under the control of the European justice.
In order to support the petition it is previously necessary to register in the European Parliament petition web page and then support the petition (number 0240 year 2014).
To see petition data, please copy the following link
Once you have accessed the web page, to see the petition summary, press: view.
In case you wish to support, press: Register.
Once registered, press : support a petition. Keyword: 0240 , select year 2014 , press : search
Once petition 0240 figures, press : Support this petition .
To finalise the process, press : SUPPORT
Attached you can find screenshot with the petition summary as figures in the European Parliament web page.
To see the complete text of the petition submitted to the European Parliament, complaint submitted to the European Commission and my answer to the European Commission comments, please consult web page
A translation into English language of the said texts will be provided in the future.
Newspapers may reproduce its texts.
Francisco Verdún Pérez
Lawyer
Specialist in European Community Law.
Francisco Verdún has participated in the IV International Congress on European Union: new problems, new solutions held in Brussels on September 24th and 25th 2015.
