The specificity of sport: sporting exceptions in EU law.

• Author: Siekmann, Robert C.R.

The classical and still and ever current central (legal) question in the debate on the position of sport in the European Union is whether sport is "special", whether it deserves specific treatment under European Law and to what extent and why. In other words should sport be exempted from the EC Treaty? It is the discussion on what is called in the jargon the "specificity of sport" and the "sporting exception". (1) In this article the general framework which the EU institutions developed regarding the specificity of sport, is dealt with. What are in fact the basics in this respect? Which sporting exceptions concerned have been accepted and which not and why? What is the result of a comparison of exceptions and justifications, what is the overall picture of the sport specificity practical application by the Commission as the EU day-to-day executive organ and the European Court of Justice as the EU supreme judicial organ? The cases and issues will be categorised according to whether they concern "internal market freedoms (movement of workers and provision of services) or EU competition law in sport organisational matters.

1. Introduction

   Not everybody knows that the European Union has a fairly extensive record in the field of sport. In 2005 the ASSER International Sports Law Centre published a book containing some 900 pages of selected legal and policy documents (resolutions of the European Parliament, decisions of the European Commission, memoranda, jurisprudence of the European Court of Justice, etc.) and another 900 pages were put on the Centre's website. (2) The EU has dealt with a wide range of subjects since the so-called Walrave case in 1974. The Book provides a detailed insight into what could be called the acquis communautaire sportive ("EU Sport Acquis") for the present and future (candidate) Member States. Apart from texts of a general policy character, specific subjects concern Boycott, Broadcasting, Community Aid and Sport Funding, Competition, Customs, Diplomas, Discrimination, Doping, Education and Youth, Freedom to provide services and of movement of workers, Olympic Games, State Aid, Tax, Tobacco Advertising, Trade Marks, Vandalism and Violence. (3)

   The classical and still and ever current central (legal) question in the debate on the position of sport in the European Union is whether sport is "special", whether it deserves specific treatment under European Law and to what extent and why. In other words should sport be exempted from the EC Treaty? It is the discussion on what is called in the jargon the "specificity of sport" and the "sporting exception". (4) In this article I will deal with the general framework which the EU institutions developed regarding the specificity of sport. What are in fact the basics in this respect? I will deal with the following items: 1. the initial position of sport in the European (EC and EU) Treaties; 2. The 1997 Declaration on Sport in the Treaty of Amsterdam; 3. The Helsinki Report on Sport and the 2000 Declaration on Sport in the Treaty of Nice, 4. Close reading the references - general and specific - to the Declarations on Sport (Amsterdam, Nice) regarding the 'specificity of sport,' in the jurisprudence of the European Court of Justice and the decision-making practice of the Commission, (5) 5. The 2007 White Paper on Sport, 6. The specificity of sport in the White Paper, and finally 7. "Sport" in the Constitutional Treaty (Constitution for Europe) and the Reform (Lisbon) Treaty, and 8. Specificity of sport in the 2011 White Paper-plus. 9. An overview of the practice of application regarding the "sport specificity" concept in the European Commission's decision-making and the European Court of Justice's jurisprudence before and after the Lisbon Treaty, in which an explicit "sport provision" (Article 165 TFEU) is incorporated (for the first time in the history of the EC/EU basic treaties), is added. Which sporting exceptions concerned have been accepted and which not and why (cf. the ratio, objective justifications for the sporting measures and their proportionality)? How the test of proportionality precisely is executed by the ECJ and the Commission is not separately scrutinized in this article. Generally speaking, it may be observed that if and when a sporting measure is justified, but not proportional, the additional question is whether and if yes, which alternative, proportional measure(s) would be available. Pending cases will not be dealt with and nor will possible, potential issues be discussed. What is the result of a comparison of exceptions and justifications, what is the overall picture of the sport specificity practical application by the Commission as the EU day-to-day executive organ and the European Court of Justice as the EU supreme judicial organ? The cases and issues will be categorised according to whether they concern "internal market freedoms (movement of workers and provision of services) or EU competition law in sport organisational matters.

2. Sport not in European Treaties

   In the European Treaties up to the Constitutional and Reform (Lisbon) Treaties there was not any general legal basis, no competence for the Communities/European Union to deal with sport, as it was the case for culture. So, there was no section on sport nor are there any provisions on sport in the Treaties. This at the same time implied that sport was not exempted from the Treaties. Since the Walrave case (6) it is clear that as far as sport is an economic activity European Law in principle is applicable to it. This is steady European jurisprudence. In their decisions the Commission and European Court of Justice have considered to what extent this is the case. Two of the basic freedoms of the Communities/EU are essential in this respect: the freedom of movement for workers and fair competition. I will not go further into that here.

3. Treaty of Amsterdam: 1997 Declaration on Sport

   The Treaty of Amsterdam amended the Treaty on the European Union and the Treaties Establishing the European Communities. The Declaration on Sport is annexed to the Treaty of Amsterdam. It emphasises the social significance of sport, in particular its role in forging identity and bringing people together. The EU institutions are therefore called on 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, the Declaration states. In 1998 the European Commission published a staff working paper entitled 'The Development and Prospects for Community Action in the Field of Sport.' In this document the educational, health, social, cultural and recreational functions of sport are recognized. It is also stressed however that sport fulfils an important economic role in Europe and that a general exemption of sport from European Law could not be allowed. The Amsterdam Declaration on Sport had no legal force; it clearly was a general policy statement. We will see hereafter how this kind of documents (see below also on the Nice Declaration) were made use of, were taken into account in particular in the decision-making of the European Commission and the jurisprudence of the European Court of Justice.

4. Treaty of Nice: 2000 Declaration on Sport

   In Nice the Declaration on 'the specific characteristics of sport and its social function in Europe, of which account should be taken in implementing common policies' was adopted. This Declaration which is annexed to the Presidency Conclusions of the Nice European Council Meeting, was based on the so-called Helsinki Report on Sport (1999), which was a Report from the European Commission to the European Council (of Heads of State and Government) "with a view to safeguarding current sports structures and maintaining the social function of sport within the Community framework" (7)

   In the Introduction of the Helsinki Report on Sport it is said that the report gives pointers for reconciling the economic dimension of sport with its popular, educational, social and cultural dimensions. In section 4 of the Report on 'Clarifying the legal environment of sport' it is suggested that sport must be able to assimilate the new commercial framework in which it must develop, without at the same time losing its identity and autonomy, which underpin the functions it performs in the social, cultural, health and educational areas. The Report continues by stating that while the EC Treaty contains no specific provisions on sport, the Community must nevertheless ensure that the initiatives taken by the national State authorities or sporting organisations comply with Community law, including competition law, and respect in particular the principles of the internal market (freedom of movement for workers, freedom of establishment and freedom to provide services, etc.). In this respect, accompanying, coordination or interpretation measures at Community level might prove to be useful. They would be designed to strengthen the legal certainty of sporting activities and their social function at Community level. However, as Community powers currently stand, there can be no question of large-scale intervention or support programmes or even of the implementation of a Community sports policy. If it is advisable, as wished by the European Council and the European Parliament, to preserve the social function of sport, and therefore the current structures of the organisation of sport in Europe, there is a need for a new approach to questions of sport both at European level and in the Member States, in compliance with the Treaty, especially with the principle of subsidiarity, and the autonomy of sporting organisations, the Report continues. The Report proposes the acceptance of a new approach which involves preserving the traditional values of sport, while at the same time assimilating a changing economic and legal environment. In terms of the economic...