Memorandum by Dr Richard Parrish, Centre
for Sports Law Research, Edge Hill University
1. Until the Reform Treaty enters into force,
sport is not a competence of the European Union (EU). Critics
of the EU's approach to sport argue that the lack of a legal base
has resulted in general principles of EU law being applied to
sport without recognition of the specificities of sport. The European
Court of Justice judgment in Bosman (1995) is cited as
an example of this insensitive application of EU law to sporting
contexts. Since that judgment there have been repeated calls from
sports bodies for constitutional protection for sport. Following
the Amsterdam Treaty deliberations, the Member States attached
a non-binding Declaration on Sport to the Treaty which read "[t]he
conference emphasises the social significance of sport, in particular
its role in forging identity and bringing people together. The
conference therefore calls on the bodies of the European Union
to listen to sports associations when important questions affecting
sport are at issue. In this connection, special consideration
should be given to the particular characteristics of amateur sport"
(Declaration 29, Treaty of Amsterdam 1997). At Nice in 2000, the
Member States released another political declaration on sport
in the form of a Presidency conclusion. Paragraph 1 of The Declaration
on the Specific Characteristics of Sport and its Social Function
in Europe, of which Account Should be Taken in Implementing Common
Policies read "[s]porting organisations and the Member
States have a primary responsibility in the conduct of sporting
affairs. Even though not having any direct powers in this area,
the Community must, in its action under the various Treaty provisions,
take account of the social, educational and cultural functions
inherent in sport and making it special, in order that the code
of ethics and the solidarity essential to the preservation of
its social role may be respected and nurtured". Neither
the Amsterdam Declaration or the Nice Conclusions amount to a
Treaty based competence for sport and given the soft nature of
the instruments employed, neither have a significant effect on
how EU law is applied to sport.
2. Article III-282 of the Constitutional
Treaty proposed a change in the legal status of sport by defining
it as an area for "supporting, co-ordinating or complimentary
action" within the context of education, youth, sport and
vocational training policy. This competence survived the ratification
problems experienced by the Constitutional Treaty, re-emerging
in the 2007 Reform Treaty under the title "Education, Vocational
Training, Youth and Sport". Within this context, Article
149(1) is amended to read, "[t]he Union shall contribute
to the promotion of European sporting issues, while taking account
of the specific nature of sport, its structures based on voluntary
activity and its social and educational function". Article
149(2) is amended to include reference to Union action being aimed
at "developing the European dimension in sport, by promoting
fairness and openness in sporting competitions and cooperation
between bodies responsible for sports, and by protecting the physical
and moral integrity of sportsmen and sportswomen, especially young
sportsmen and sportswomen". Within areas of "supporting,
coordinating or complementary action", the Reform Treaty
retains the Constitutional Treaty's prohibition on the harmonisation
of the laws and regulations of Member States on that legal basis.
3. Once in force, the EU will for the first
time have specific competence in sporting matters. This is of
significance for a number of reasons. First, such a competence
resolves the consequences of Case C-106/96 UK v Commission
(1998) on the legality of budgetary appropriations for measures
with no legal base, since the promotion of European sporting issues
is now an express competence. Aligned to this, the Reform Treaty's
provisions establishes a formal rolling institutional agenda to
replace the informal, and legally questionable, activity of the
institutions in sporting contexts. The formalisation of that agenda
is likely to lead to increasing coherence and continuity in European
sports policy and enhance the visibility of sport in EU policy
making.
4. In terms of the effect on the application
of EU law to sport, and calls for the specificities of sport to
be recognised in free movement and competition law, it must be
recalled that the Reform Treaty's Article only requires EU bodies
to take account of the "specific nature of sport" when
considering the Union's supporting action contributing to the
promotion of European sporting issues. Consequently, EU institutions
are under no horizontal constitutional obligation to take this
into account in the context of legislation under other competences,
such as those pertaining the free movement or competition law.
Nevertheless, the constitutional recognition of the "specific
nature of sport" is of some significance, even though limited
to the context of positive action in the field, in that it may
act as persuasive authority and inform the legal reasoning of
the Court and Commission in instances when they are asked to consider
the application of EU law to sporting contexts. In this connection,
and whilst not binding, it can be envisaged that the Treaty Article
could be invoked in the context of justifying measures otherwise
contrary to free movement or competition law, with reference to
the pursuit of the objectives of Article 149.
5. Opinion differs on the question of whether
the hitherto lack of a sporting competence has had damaging affects
on the manner in which the Court and Commission have discharged
their constitutional obligations in the field of sport. It is
the personal view of this author that it has not. The current
framework for applying EU free movement and competition law to
sport is sympathetic to the specificities of sport and has been
developed without the guidance offered by a Treaty Article. In
relation to free movement law, the Court in Delie"ge
developed a category of "inherent" rules related to
the organisation and proper functioning of sport which fall outside
the scope of the Treaty prohibitions. In other instances relating
to free movement, the process of objective justification provides
opportunity for specificity of sport arguments to be articulated.
For example, in Bosman, the Court recognised a number of
categories relevant to sport including promoting competitive balance
and encouraging the education and training of young players. In
these circumstances, proportionate rules of sports bodies which
restrict an athletes freedom of movement will be accepted as legitimate
by the Court.
6. In Meca-Medina the Court established
a methodology for applying competition law to sport. The Court
stated the importance of taking into account the overall context
in which the disputed rules were taken or produce their effects,
assessing the objectives of the rules, examining whether the restrictive
effects are inherent in the pursuit of those objectives, and whether
the rules were proportionate in that they did not go beyond what
was necessary to achieve the objectives. This framework allows
rules inherent to sport to be removed from the scope of EU competition
law. Where the Court is unable to make the determination that
a rule is inherent in the organisation or proper conduct of sport,
it will be defined as a restriction under Article 81(1) and condemned
unless the exemption criteria contained in Article 81(3) can be
applied. In its decision making practice, the Commission has employed
this methodology in such a way so that the specificities of sport
have been taken into account.
7. The Committee may also wish to consider
the relevance of the Employment and Social Affairs provisions
of the Reform Treaty to sporting contexts. These provisions provide
a mechanism through which social dialogue in European sport can
be conducted and legal conflicts mitigated. In European football
for example, the Fédération Internationale des Associations
de Footballeurs Professionels (FIFPro) represents the players
and the Association of European Professional Football Leagues
(EPFL) is the most representative employers grouping and there
are attempts to formalise their relations within a social dialogue
committee. Within this committee a number of issues pertaining
to the employment relationship between both parties could be discussed.
The 2007 White Paper on Sport endorses the use of social dialogue
within the European professional sports sector and provides official
support for such initiatives.
8. In conclusion, the sports competence
in the Reform Treaty clarifies the legal status of sport in relation
to the assignment of budgetary appropriations and it formalises
political engagement with sports policy at supranational level.
The impact on the jurisprudence of the Court and the decision
making practice of the Commission, particularly in relation to
the application of free movement and competition law, is however
limited. This need not be of major concern to those stakeholders
within the sports movement who wish to see the specificities of
sport recognised by the EU. This is because sufficient flexibility
exists within the EU's legal framework for such arguments to be
successfully articulated. Whilst the debate on sport and the EU
has largely taken place within the context of free movement and
competition law, the potential for social dialogue within sport
as a means through which legal conflicts can be mitigated should
not be ignored.
13 December 2007
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