Sport in the Internal Market. Free Movement Law
Chapter 3 set out the framework of EU law. The constitutional starting point is the principle of conferral contained in Article 5 of the Treaty on European Union (TEU), which seems to promise restraint in the subjection of sport to EU law. It declares that the EU may do no more than its Treaties mandate. However, the practice is rather different because even though the EU Treaties conferred no explicit competence to act in the field of sport until 2009, and even though since then the relevant directions in Article 165 of the Treaty on the Functioning of the European Union (TFEU) are written with caution, the EU’s institutions have, since the 1970s, intervened in the field of sport in so far as practices affect the creation and functioning of the EU’s internal market. Article 26 TFEU defines the internal market 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 this Treaty’, and sporting practices, like practices in any other field, may collide with the aim of creating a single trading area stretching across the territory of all twenty- eight Member States, in which national political frontiers shall be of no economic relevance. The question is whether, in the interpretation and application of EU internal market law, justice has been done to sport’s special features.
The story told in this chapter is of how sporting bodies have attempted to maximize their autonomy in the face of EU internal market law, and how first the Court of Justice, as the authoritative voice of the law, and then subsequently the Commission have grappled with the strength of these claims. It is free movement law which forms the focus of this chapter. Competition law is the subject of treatment in Chapter 5. The first question to address is whether, in principle, EU internal market law may apply to sport at all, and then, given that the EU’s institutions have consistently given ‘yes’ as the answer to this question, the second and more complex question is how far, if at all, the special features of sport should guide the interpretation and application of EU internal market law to sporting practices. At stake is a quest to determine how EU law mediates between its own claim to exercise authority over sporting bodies active on its territory and the claimed legitimacy of the rules which sports bodies themselves create (the lex sportiva). A model of ‘conditional autonomy’ under EU law emerges: sporting bodies have room to protect and preserve their special concerns on condition that they demonstrate how and why EU law should be open to the accommodation of such characteristics.
The explanatory narrative traces the way in which the Court and the Commission developed an approach over the extended period lasting until 2009 in which sport was not even mentioned in the EU’s governing Treaties. The more recent entry into force of the Lisbon Treaty gives a new vocabulary to the legal analysis and puts to an end any possibility of denying in principle that sport is any of the EU’s business. But there is no indication that the Lisbon Treaty has changed the rules of the game. Quite the reverse: it simply provides a new form of vocabulary apt to explore how EU internal market law and the lex sportiva shall co-exist. Article 165 TFEU directs that the EU ‘shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport’ 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’. Even though this is not explicitly stated to apply beyond Article 165 TFEU, in contrast to provisions such as Articles 11 and 12 TFEU which make explicit that requirements of environmental and consumer protection (respectively) shall be woven into the definition and implementation of Union policies activities, there is no reason to doubt that it is correct to make such interconnection also in the case of sport. In fact, before 2009, exactly that connection had been frequently made by both Court and Commission and since 2009 that pattern has been maintained. And this is exactly the point. The Lisbon vocabulary may be new but the thematic questions which are arising are not new at all. The clock of EU sports law was not re-set in 2009. This is explained more fully in Chapter 7.
The concern here is not the legislative institutions (Council and Parliament) setting common EU rules that dictate the terms on which sport shall be organized, but rather the Court and the Commission establishing what may not be done in the field of sport, in so far as it collides with internal market law, most of all free movement and competition law. The legislative context is the subject of Chapter 6. However, there is thematic linkage between this chapter and Chapter 5, which traverse internal market law, and Chapter 6 on the legislative context. In all three chapters the story is one of how a strategy of seeking exclusion from EU law has proved ultimately inadequate to meet the aspirations of sporting bodies and how instead sporting bodies moved to a strategy of inclusion. The Treaty of Lisbon, and the insertion of Article 165 TFEU, represents the most visible manifestation of this trend, but it is already apparent in the development of EU internal market law as applied to sport. In fact, it is the failure of a strategy of exclusion before the Court and Commission that is a major reason explaining the retreat to a strategy of (conditional) inclusion within the Treaty superstructure. So, as will be explored further in Chapter 6, Article 165 TFEU is not simply a codification-of-sorts of the lesson drawn from EU internal market law that sport is to some extent special (but not as special as sports bodies commonly claim), in fact Article 165 TFEU owes its very existence to the appreciation of sports bodies that internal market law could not and would not grant them the highest level of autonomy for which they yearned. Chapter 7 then brings together the story told in this chapter (free movement law), Chapter 5 (competition law), and Chapter 6 (the conferral of a sports- specific competence on the EU) to present an integrated account of EU sports law as a programme of conditional autonomy.