‘Competence’ as a Constitutionally Foundational Issue in the EU
One can find in any jurisdiction the tendency of sporting bodies to be forced to deploy the interpretative or adjudicative strategy for maximizing their sporting autonomy. US law, English law, German law, Australian law, and so on all have their own particular versions of this story, and there are intriguing differences between jurisdictions in the answers given to the questions ‘is sport special and, if so, how special?’. Some of these differences may be historical accident or random peculiarity, but others reflect genuine structural and cultural differences affecting the organization of sport. In the United States, for example, there is far more attention paid to the need for competitive balance in sports leagues than anything found in Europe, and this leads to interventionist features such as the ‘draft pick’ and long-established salary caps which are designed to go some way to evening out opportunities to succeed across all the participants. So in this sense an inquiry into EU sports law is an inquiry which is readily connected to and helpfully informed by inquiry into the sports law of any jurisdiction. Sports law scholarship deserves a comparative dimension.2 But there are also special features of the EU’s experience in the shaping of sports law and policy which are not shared by other jurisdictions.
Most of all the EU possesses only the competences and powers which are conferred on it by its Member States under the founding Treaties, as amended periodically. This is the ‘principle of conferral’ set out in Article 5 TEU. Article 5(1) TEU declares that ‘The limits of Union competences are governed by the principle of conferral’. Article 5(2) TEU adds that pursuant to this principle, ‘the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein’. As both Articles 4(1) and 5(2) TEU make explicit, this logically entails that competences not conferred upon the Union in the Treaties remain with the Member States. The principle of conferral is foundationally important to the EU’s claim to exercise power in a legitimate way. When the EU acts, it does so under the authorization provided by all its Member States who, according to their own particular constitutional rules relating to the ratification of international Treaties, have approved the EU’s original Treaties and its subsequent amending Treaties, most recently the Lisbon Treaty of 2009. It means too that action taken by the EU beyond its constitutional mandate is not legitimate: it is invalid as a matter of law.
It is not possible to attempt serious study of the EU’s treatment of the sports sector without a secure grasp of this constitutional foundation. Put another way, the EU sports lawyer must start out with an education as an EU lawyer pure and simple. Most of all this is because those constitutional foundations reveal the limits of the EU’s role—which serve as constraints that dictate the more substantive debate into what the EU should seek to achieve by intervening in the sports sector. So there are issues that arise in EU sports law that would be familiar to a sports lawyer from elsewhere who has no knowledge at all of the EU and its legal order, but there are also aspects that are incomprehensible without appreciation of the EU’s constitutional and institutional peculiarities. EU law is, after all, the law of an international organization and has its roots in a system of international Treaties. It is not the law of a state, even if the EU functions in a manner that is readily comparable to the law of a federal state and even if the EU is a relatively, in truth uniquely, sophisticated international organization.
It created with effect from December 2009 a sports-specific competence: Article 165 TFEU, which, as already mentioned, directs that the EU ‘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 that EU 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’, and, to those ends, provides in Article 165(4) TFEU for a legislative competence to adopt incentive measures at EU level.
The force and intent ofArticle 165 TFEU is far from clear in its detail. The text is the result of tortured compromise and stop-start negotiation over several years. This is explored in detail in Chapter 6. In fact, Article 165, as a product of compromise, is in many respects designed precisely not to provide a tightly drawn or unambiguously clear competence for the EU. Crucially, as Chapter 6 will explore, it is the remnant of the failure of those lobbying on behalf of the sports sector to secure an express exclusion for sport from the application of EU law. That plea for complete autonomy is the specific EU version of the legislative route to securing sporting autonomy examined in Chapter 2—being, in the EU context, an attempt to write autonomy into the Treaty rather than, as at state level, into legislation. Article 165 TFEU is an expression of failure to achieve that objective. Instead it locates sport within the scope of EU law, while admitting that it is to some (ill-defined) extent ‘special’. Precisely how special will require elucidation: this is the heart of the adjudicative or interpretative route to sporting autonomy introduced in the previous chapter.
But Article 165 TFEU is deceptive. Indeed the foundational Article 5 TEU itself, asserting the principle of conferral, is deceptive too. Both are built on the principle that the EU has only limited competences and powers—namely, those conferred on it by the Member States in the Treaties. But the practice is more slippery. And the practice is much less comforting to those, such as sports governing bodies, who would typically wish to understand the EU’s role as reliably controlled by the principle of conferral. The limits to EU law promised by Article 5 TEU are in truth broad and, worse, they are ill-defined. There is an enduring drama in EU law, not confined to sport alone, whereby competences and powers, though limited in principle, are far-reaching in practice, often unpredictably so. There is a motor of transformation  or, otherwise put, of ‘competence creep’,5 and this tendency was a key issue for deliberation at the Convention on the Future of Europe which ultimately shaped the Lisbon Treaty, which entered into force in 2009 and which provoked the currently applicable arrangements.
The principal anxiety is structural: it rests on the poor way in which Article 5 TEU’s principle of conferral is put into operation in the Treaties. The Treaties’ general modus operandi is not to declare particular sectors off-limits for the EU nor to reserve particular functions to the Member States. Instead the principle of conferral pronounced by Article 5 TEU is made specific in its application to particular sectoral competences by provisions granting legislative authority to the EU which are to be found in Part Three of the TFEU. In short, the Treaty system works by declaring what the EU may do, not what it may not do. It is accordingly hard to marshal operationally useful constitutional arguments against EU intervention. Still worse, although Articles 2 to 6 TFEU helpfully provide a brisk summary of the scope and nature of the areas in which the EU enjoys competence under its Treaties, a detailed understanding of the matter demands a laborious journey through the chaotic pattern of provisions granting legislative authority to the EU which are scattered across Part Three of the TFEU, which stretches from Article 26 to Article 197. It is no easy read. It is, in consequence, disturbingly difficult to set out clearly an account of the nature of EU competence and its effect on Member State competence which does justice to the detailed intricacy.7 Article 5 TEU’s principle of conferral is not all that it seems.
Sport was not even mentioned in the Treaties until 2009. But this did not at all mean it was reserved to the Member States. The EU’s competence is not exclusively or even principally legislative in nature. EU law applies also even where legislative competence is lacking in so far as national practices collide with the objective of creating an internal market.
As a general structural observation, the issue at stake is that the whole EU system is driven by the functional logic of transforming the fragmented pattern of economies that have been shaped over many years, in some cases centuries, according to national patterns and national regulatory rhythms by merging ‘the national markets into a single market bringing about conditions as close as possible to those of a genuine internal market’.8 This is today inscribed in the Treaty by Article 3(3) TEU, which provides that ‘The Union shall establish an internal market’. And this internal market is defined by Article 26(2) TFEU as ‘an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties’. So any national practice which hinders the development of an internal market in the EU falls within the scope of EU law. And the free movement rules and the competition rules, which serve the achievement of the Treaty’s economic objectives,
Law and Proposals for its Reform’ (2002) 39 CML Rev 227; S Weatherill, ‘Better Competence Monitoring’ (2005) 30 EL Rev 23; G Davies, ‘Subsidiarity: The Wrong Idea, in the Wrong Place, at the Wrong Time’ (2006) 43 CML Rev 63; on the chosen solutions, see eg R Schutze, ‘Subsidiarity after Lisbon: Reinforcing the Safeguards of Federalism’ (2009) 68 CLJ 525; A Cygan, ‘The Parliamentarisation of EU Decision-Making? The Impact of the Treaty of Lisbon on National Parliaments’ (2011) 36 EL Rev 480. For deep critical engagement, see L Azoulai (ed), The Question of Competence in the European Union (OUP 2014).
7 See especially Weatherill (n 3) ch 2. 8 Case 15/81 Gaston Schul  ECR 1409.
therefore have startling functional breadth. Any field of national policy-making which tends to come into conflict with the quest for market integration in the EU is subject to review in the light of its impact on the Treaty rules on free movement or competition. So even though the EU may lack a legislative competence in a particular field does not at all mean that the matter rests in the province of national regulatory autonomy.
This accentuates the need to distrust the deceptively simple formula that is Article 5 TEU’s principle of conferral. The impetus delivered by the internal market means that EU law may exert transformative effects on national practice even in areas where EU legislative competence is thin or even wholly absent. Areas such as health care, social security, taxation,   and environmental protection^ provide good examples. Even in the rare instances where the Treaty seems explicitly to guard against disruption of national autonomy, such as Article 345 TFEU which explicitly declares that the Treaties ‘shall in no way prejudice the rules in Member States governing the system of property ownership’, the Court has found a way to insert internal market law. So, for example, in a case concerning Dutch rules prohibiting privatization in the gas sector, the Court agreed that Article 345 TFEU guaranteed the neutrality of EU law as far as property ownership was concerned, but it refused to read Article 345 TFEU as conferring immunity from the basic thrust of the rules of free movement and non-discrimination where property rights were being exercised.13 None of this is incompatible with Article 5 TEU’s principle of conferral, but it shines light on what that principle means in practice. EU law reaches only so far as its Treaties mandate—but, driven by the economic logic of market-making, in practice that is a remarkably broad reach. Areas of truly exclusive state competence are few and, were it otherwise, the achievement of the core objectives of the Treaty would be gravely imperilled.
Sport is in one sense just another illustration of these trends—it is an application of general EU law orthodoxy. But sport offers a particularly vivid illustration of this trend, not least because of the strenuous attempts of sporting bodies to preserve their autonomy from remorseless erosion in the name of the internal market. In formal terms the EU, when it checks national practices for conformity with the requirements of internal market law, is not dictating what shall be done, it is instead simply deciding whether what is currently being practised may lawfully continue. That follows logically from the limits of its role: it may not legislate, it may only check for violation of internal market law. In practice, however, EU law constricts and channels regulatory autonomy. The interpretation of the scope and impact of internal market law has a profound influence on the viability of the choices available to those subject to its supervision. In most areas this means primarily public authorities in the Member States—in sport this means primarily governing bodies and federations.
-  See eg M Mitten, Sports Law in the United States (Wolters Kluwer 2011) Pt II, ch 4.2.
-  See eg L Halgreen, European Sports Law: A Comparative Analysis of the European and AmericanModels of Sport (Forlaget Thomson 2004); J Nafziger, ‘European and North American Models ofSports Organization’ in J Nafziger and S Ross (eds), Handbook on International Sports Law (EdwardElgar 2011) ch 4; N St Cyr Clarke, ‘The Beauty and the Beast: Taming the Ugly Side of the People’sGame’ (2010—11) 17 Col J Eur L 601. Comparative economics has a place too: see eg W Andreff,‘Some Comparative Economics of the Organisation of Sports: Competition and Regulation in NorthAmerican vs European Professional Team Sports Leagues’ (2011) 8 European Journal of ComparativeEconomics 3.
-  See eg S Weatherill, Law and Values in the European Union (OUP 2016) ch 2; R Schutze, EuropeanUnion Law (CUP 2015) ch 7; C Barnard and S Peers (eds), European Union Law (OUP 2014) ch 3.
-  J Weiler, ‘The Transformation of Europe’ (1991) 100 Yale LJ 2403.
-  M Pollack, ‘Creeping Competence: The Expanding Agenda of the European Community’ (1994)14 Journal of Public Policy 95; S Weatherill, ‘Competence Creep and Competence Control’ (2004)23 YEL 1.
-  On the problems perceived during the process that led to the reforms effective from 2009, seeeg A Von Bogdandy and J Bast, ‘The European Union’s Vertical Order of Competences: the Current
-  eg Case C-372/04 ex parte Watts  ECR I-4325.
-  eg Case C-512/03 JE JBlankaert  ECR I-7685.
-  eg Case C-446/03 Marks and Spencer v Halsey  ECR I-10837.
-  eg Case 302/86 Commission v Denmark  ECR 4607; Case C-379/98 Preussen Elektra ECR I-2099; Case C-573/12 Alands Vindkraft, judgment of 1 July 2014.
-  13 Joined Cases C-105/12 to C-107/12 Essent, judgment of 22 October 2013.