Is there such a thing as EU sports law?

AuthorWeatherill, Stephen

1 Introduction

The simple answer to the question posed in the title to this paper is: yes, there is such a thing as EU sports law!

But most simple answers tend to mislead, and the risk is real here too. There is such a thing as EU sports law, in the sense that since the entry into force of the Treaty of Lisbon on 1 December 2009 sport has been explicitly recognised as an area in which the EU has authority to intervene. However, this is apt to mislead in two quite different senses. First, it obscures the point that December 2009 was certainly a notable mile-stone in the shaping of EU sports law, but that in fact the relevant newly-introduced Treaty provisions are cautiously drafted and limited in their scope. They emphatically do not elevate the EU to the position of general 'sports regulator' in Europe. So, in short, one should not get too excited about them. Second, a focus on the Treaty reforms of 2009 obscures appreciation that for some 35 years the EU has already exerted an influence on sports governance in Europe. Beginning with its famous Walrave and Koch judgment in 1974 (1) the Court of Justice has subjected sport to the requirements of what was then EC law, and is now EU law, in so far as it constitutes an economic activity. So sport has been brought within the explicit scope of the EU Treaties only as late as December 2009 but well in advance of that date sport, though unmentioned by the Treaty, was required to comply with its rules in so far as it constituted an economic activity - which meant, most prominently, that sporting practices fell to be tested against the Treaty prohibitions against practices which are anti-competitive or which obstruct inter-State trade or which discriminate on the basis of nationality. So an EU sports law (of sorts) developed as a result of the steady accretion of decisional practice where sporting rules exerted an economic effect and interfered with the fulfilment of the EU's mission.

This paper begins by considering the provisions on sport which were introduced into the EU Treaties by the Lisbon Treaty with effect from December 2009. It then steps backwards to show how, beginning in 1974, EU law has affected sport by subjecting its practices to control, initially in the name of promoting free movement of players across borders and more recently in the name of competition law. So there was already, pre-2009, a type of 'EU sports law'. The EU did not stipulate how sport should be organised: but it did rule out choices that contravene the Treaty. The paper then reflects on whether the provisions introduced in 2009 are likely to change the shape of this pre-existing EU sports law. They might! It then concludes: yes, there is such a thing as EU sports law, and it is of practical importance and intellectual interest, but it is less systematic and comprehensive than one would expect to find at national level.

2 The Lisbon Treaty

The overall structural effect of the Lisbon reforms is formally to abolish the three pillar structure crafted for the EU at Maastricht twenty years ago. From 1 December 2009 the European Union has been founded on two Treaties which have the same legal value: the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). It is the amendments to what was the EC Treaty, and is now the TFEU, which grant sport its newly recognised formal status within the EU's legal order.

However, inspection of the detailed content of this competence newly granted by the Member States to the EU is rather deflating, at least for those who would advocate a more aggressive role for the EU. The details are found in the rambling Part Three of the TFEU, which is entitled 'Union Policies and Internal Actions', specifically in Title XII of Part Three Education, Vocational Training, Youth and Sport. Under the post-Lisbon re-numbering the relevant Treaty Articles are Articles 165 and 166 TFEU.

Article 165 stipulates that the 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'. And, pursuant to Article 165(2), Union action shall be 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 the youngest sportsmen and sportswomen.' Article 165(3) adds that the Union and the Member States 'shall foster cooperation with third countries and the competent international organisations in the field of education and sport, in particular the Council of Europe'.

Article 165(4) provides that in order to contribute to the achievement of the objectives referred to in the Article, the European Parliament and Council, acting in accordance with the ordinary legislative procedure, after consulting the Economic and Social Committee and the Committee of the Regions, shall adopt incentive measures, excluding any harmonisation of the laws and regulations of the Member States; and that the Council, on a proposal from the Commission, shall adopt recommendations.

Sport has been included in the Treaty, but there is no intent to elevate the EU to a position of primary importance. A legislative competence is conferred on the EU - but a feeble one. What is created is merely a supporting competence for the EU, the weakest type of the three principal types of competence mapped in Title I of Part One of the TFEU. The basic competence descriptor is found in Article 6(e) TFEU: 'The Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States'. The areas of such action shall, at European level, include (inter alia) 'education, vocational training, youth and sport'. Moreover the provisions are drawn carefully and narrowly, stressing that the Union shall do no more than 'contribute' to the promotion...

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