Short answer
A body does not escape EU internal-market law merely because it is privately incorporated. The decisive questions are what rule it makes, what economic activity it controls, and how the rule affects cross-border access.
Treaty free-movement rules can reach a private organisation where it collectively regulates paid work or cross-border services, or where State-recognised certification gives it effective control over entry to a national goods market. Article 45 TFEU can even apply to a private employer's discriminatory recruitment condition. Articles 101 and 102 TFEU separately apply to undertakings and associations of undertakings, including professional and sports bodies when they regulate economic activity. Directly applicable EU regulations can also impose duties on private operators by their express scope.
But Articles 34, 49 and 56 do not govern every private contract or platform policy. The claimant must establish the correct route, cross-border link and restriction; the gatekeeper must prove any justification. Criteria and procedures generally need to be objective, non-discriminatory and proportionate.
Start with the legal route, not the body's label
concerns trade in goods. Article 45 protects worker mobility, while Articles 49 and 56 protect establishment and services. Each has developed differently in relation to private conduct.
“Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.”
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The rule normally addresses a Member State measure. A private scheme requires an additional reason why its conduct is legally comparable to a public market barrier or falls within horizontal case law.
Competition law takes a different route. Article 101 TFEU expressly covers agreements between undertakings and decisions by associations of undertakings that may affect trade between Member States and restrict competition. Article 102 prohibits abuse of a dominant position. These provisions are designed to govern economic actors, so public-authority status is not a prerequisite.
Collective private rules can engage free movement
The foundation is . The dispute concerned an international cycling federation's nationality rule. The Court first limited EU law to sport that constitutes economic activity. It then rejected the proposition that only public rules can offend the free movement of workers and services.
“Prohibition of such discrimination does not only apply to the action of public authorities but extends likewise to rules of any other nature aimed at regulating in a collective manner gainful employment and the provision of services.”
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Otherwise, private associations could replace State barriers through their legal autonomy. The Court preserved a narrow exclusion for purely sporting matters, such as national-team composition, limited to its proper objective.
The principle is not confined to associations. In , a private bank accepted only a bilingualism certificate obtainable in one Italian province for recruitment. The predecessor to Article 45 applied to private persons. Language competence could be legitimate; refusing equivalent proof was disproportionate.
These cases do not make all private decisions reviewable under every freedom. They show strong horizontal application where a private rule regulates labour or services collectively, and under Article 45 where an employer's condition discriminates in cross-border access to employment.
A certification body may become the practical market regulator
concerned a non-profit private association certifying copper fittings. Germany did not finance it or decisively influence its certification activity. Yet national legislation treated its certificate as establishing compliance, it was the only relevant certifier, the alternative expert procedure was of little practical use, and almost all consumers bought certified fittings.
“In such circumstances, it is clear that a body such as the DVGW, by virtue of its authority to certify the products, in reality holds the power to regulate the entry into the German market of products such as the copper fittings at issue in the main proceedings.”
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The Court therefore held that the predecessor to Article 34 applied to those standardisation and certification activities. The judgment is fact-sensitive, not a declaration that every voluntary private standard has horizontal effect. Important indicators are statutory recognition, exclusivity, absence of a realistic alternative, market practice, and a serious effect on marketing goods from another Member State. A multi-provider voluntary label with no legal presumption or material market-access effect may fall outside that reasoning, although competition law can still be relevant.
Sports and professional bodies face both freedoms and competition law
Modern sports governance illustrates how the routes can overlap. In , FIFA and UEFA rules made new interclub competitions and participation subject to prior approval and sanctions. Because the rules controlled access to an economic service market, the Grand Chamber assessed them under Article 56 as well as Articles 101 and 102 TFEU.
“It follows that those rules constitute an obstacle to the freedom to provide services enshrined in Article 56 TFEU.”
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Sporting objectives such as openness, merit, solidarity and coordinated competitions could be legitimate in principle. They could not justify unfettered discretion. A prior-approval system needed substantive criteria and procedural rules ensuring that decisions were transparent, objective, precise, non-discriminatory and proportionate.
On 16 July 2026, the Court confirmed the wider principle in . National recognition of a private-law football association's sporting autonomy did not exempt it from Articles 45 and 56. A disciplinary ban affecting professional activity could pursue the proper conduct of competitions, but the association had to prove a compatible public-interest objective and proportionality. Individual sanctions also required transparent, objective and non-discriminatory criteria, consideration of relevant circumstances, and effective judicial review.
In , the Netherlands Bar's public-law constitution did not prevent its partnership rule from being a decision of an association of undertakings. Its elected practising lawyers determined a rule influencing members' market conduct. The Court nevertheless accepted that particular restraint as reasonably necessary for proper professional practice in its legal context.
The inquiry asks who determined the rule, whether members are undertakings, whether cross-border trade may be affected, and whether the restraint is inherent and necessary. Statutory responsibility and public-law form are relevant, not immunity.
Platforms require a separate classification
A platform may be a private gatekeeper, but that description does not itself create horizontal liability under Article 56. Three routes should be kept separate.
First, Articles 101 and 102 can apply where the platform is an undertaking and its agreements, rules, or dominant conduct meet their respective conditions. Market definition, market power, effect on trade, and objective justification cannot be skipped.
Second, harmonised legislation may bind the provider directly. The , generally applicable since 17 February 2024, imposes duties on specified intermediary services offered to EU recipients, wherever the provider is established. “Online platform” has the functional definition in Article 3.
Third, internal-market law may protect the platform against the State rather than regulate the platform's own policy. In , the Court classified the intermediation service as an information-society service under Directive 2000/31/EC. France could not enforce an unnotified restriction on that cross-border service in the proceedings at issue. That judgment is not authority that Article 56 directly controls every term imposed by a platform on its users.
A practical assessment
For any private gatekeeper, ask:
- What economic activity and cross-border movement does the rule affect: goods, work, establishment, services, or competition?
- Does the body regulate an activity collectively, decide an individual employment condition, or control practical market entry?
- Does legislation recognise its decision, and is there a realistic alternative route to the market?
- Is the body or its membership acting as an undertaking or association of undertakings?
- Does a regulation or directive expressly cover the operator or service?
- What legitimate objective is evidenced, and is the rule suitable, consistent and no broader than necessary?
- Are the criteria known in advance and the process transparent, objective, non-discriminatory and open to review?
Conclusion
Private status is not decisive when an organisation performs an economic gatekeeping function. EU free-movement law can reach collective private regulation, discriminatory private employment conditions, and certification that effectively controls national market entry. Competition rules independently reach undertakings and associations, while platform-specific regulations apply according to their express definitions and territorial scope. The correct result therefore depends on the legal route and facts: cross-border effect, regulatory power, market position, statutory context, and proportionality—not simply whether the defendant is a public authority.
Sources
This article provides general legal information, not advice for a specific matter. Laws, facts and procedural deadlines may change the result. Follow the linked primary sources and obtain local advice before acting.