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The Treaty establishing the European Community has amongst its foundational aims the purpose of an 'ever closer union', to be achieved inter alia by precluding nationality as a legitimate regulatory consideration within the internal market. The Court has interpreted Treaty derogations from this principle restrictively and has at times considered even entirely nondiscriminatory measures as falling foul of Treaty fundamental freedoms because of their restrictive effects on trade. In sport, the judgment of the European Court of Justice in Bosman made clear that sport was not special in this respect. Nationality restrictions in sport, when not related to its limited and possibly dated case law regarding national team sports were not beyond the scope of Treaty prohibitions on discrimination. Nondiscriminatory but excessively restrictive trading practices such as the disputed transfer system in Bosman were also not exempt from the Treaty and required justification despite an absence of discriminatory effects. Since Bosman, the Union of European Football Associations (UEFA) has argued that although commercial football is no longer organised with reference to nationality and does not require nationality rules for the sake of maintaining such market divisions, other considerations should permit the imposition of rules that closely correlate with nationality. By introducing its home-grown player rules UEFA seeks to require in certain circumstances preferential treatment of players with local links by training or residence. We examine whether the home-grown players rule is in principle justifiable under the Treaty given its relationship with nationality discrimination and if so, whether the reasons put forward are capable of constituting such justification, suitable for the aims stated by UEFA and proportionate.

The EU has recently mooted the possibility of harmonising minimum penalties. ‘Minimum criminal penalties’ refers to the lowest sanction available for a judge in a concrete case. Calculating the actual penalty involves legal mechanisms that might mitigate that penalty. Comparative analysis reveals that a distinction needs to be made between minimum penalties included in national criminal codes (in abstracto penalty) and the lowest penalty that might be imposed (in concreto penalty). Although in abstracto minimum penalties are found in the criminal codes of most Member States, they are fiercely opposed in others. In concreto minimum penalties that constitute an absolute limit to the discretion of a judge are even more controversial. Against that background, this contribution reviews whether or not the EU should force the Member States to impose absolute, in concreto minimum criminal penalties. It examines the justifications presented in recent proposals in light of legal and criminological research.

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