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The Nice Declaration

The Treaty of Nice entered into force in 2003. It was, like the Treaty of Amsterdam before it, a rather technical amending Treaty. It was largely aimed at adapting the EU’s working system to permit absorption of new Member States in central and Eastern Europe: the EU’s membership jumped from fifteen to twenty-five in 2004. Like the Treaty of Amsterdam, the negotiation of the Treaty of Nice attracted attention from the point of view of sport, although again it must be appreciated that sport was very far from the main priorities that were addressed in the political negotiation that ultimately generated the agreement of the Treaty of Nice.

On this occasion, the Declaration was attached not to the Treaty itself, but rather to the Conclusions of the European Council meeting held in Nice in December 2000. This difference carries no legal or political significance. As with the Amsterdam Declaration, the Nice Declaration lacks binding legal force and it reveals only the lack of political consensus with regard to taking any hard steps towards agreeing a clearly defined role for the EU—or to agreeing that there should not be any such role. The Nice Declaration is, however, a good deal longer than the Amsterdam Declaration, stretching to seventeen paragraphs, and its helpfully full title declares that it is a ‘Declaration on the specific characteristics of sport and its social function in Europe, of which account should be taken in implementing common policies’. There are six sections to the Nice Declaration, entitled ‘Amateur sport and sport for all’, ‘Role of sports federations’, ‘Preservation of sports training policies’, ‘Protection of young sportsmen and -women’, ‘Economic context of sport and solidarity’, and ‘Transfers’.

This is a mix. Support for amateur sport is rather uncontroversial and, in any event, remote from the formal influence of EU law. This is true too of the protection of younger people. By contrast, addressing the role of federations and the economic context of sport comes much closer to the most awkward of tensions that arise when EU law comes into contact with professional sport.

The Nice Declaration is suitably and illuminatingly cautious on these matters. It ‘solves’ nothing. But it does vividly capture the challenge of finding a role for the EU when it comes into contact with the increasingly prominent commercial dimension of sport. The Nice Declaration does not serve to be set out in full here, both because it is too long and because it is too dull.n However, it is book-ended by anodyne comments with which it is impossible to disagree but which offer no concrete guidance, and which convey accurately the general flavour of the document:

  • 1. The European Council has noted the report on sport submitted to it by the European Commission in Helsinki in December 1999 with a view to safeguarding current sports structures and maintaining the social function of sport within the European Union. Sporting 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.
  • 2. The European Council hopes in particular that the cohesion and ties of solidarity binding the practice of sports at every level, fair competition and both the moral and material interests and the physical integrity of those involved in the practice of sport, especially minors, may be preserved.
  • 17. The Community institutions and the Member States are requested to continue examining their policies, in compliance with the Treaty and in accordance with their respective powers, in the light of these general principles.

One can hardly disagree. But equally one can hardly rate these comments as operationally useful in any concrete sense.

The adoption of both the Amsterdam and the Nice Declarations is important in the sense that it demonstrates that the tension between the EU’s absence of explicit competence in the field of sport and the activity of its Court and Commission in applying the rules on free movement and competition had squeezed out a political response. But the legal form and the chosen content is telling: these are non-binding Declarations which do little more than sketch broad aspiration and generalities. This was the best that sport was able to extract from the political process. These Declarations emphatically do not subvert the core of the Bosman ruling’s firm application of the fundamental Treaty rules governing free movement law to sport.

Underlying this narrative is the appreciation that for sport to secure protection from the EU and its legal order it must in some way engage with it, not dismiss it as irrelevant. After all, as the practice of the Court and the Commission accumulated it became increasingly plain that the EU’s institutions did not merely show rhetorical acceptance of the claim that ‘sport is (sometimes) special’. Chapters 4 and 5 track this strategy of inclusion in the context of free movement and competition law respectively, as a second-best choice after the strategy of exclusion had proved unfeasible. They show how internal market law had been used to supervise but not to condemn rules governing selection for international representative teams, !2 anti-doping sanctions,[1] [2] a modified transfer system,14 and rules against multiple club ownership.15 The Union of European Football Associations

(UEFA), in particular, was notable for adapting its strategy towards a more cooperative model.[3] [4] [5]

The Amsterdam and Nice Declarations have much in common with this strategy, whereby recognition of sport’s special character is inscribed into EU law, but in an ambiguous manner that places heavy emphasis on subsequent detailed elaboration of policy. Chapters 4 and 5 showed the Court’s involvement. In the wake of the rising political salience of the EU’s intersection with sport, made manifest at the level of Treaty negotiation in the Amsterdam and Nice Declarations, it fell to the Commission to try to provide policy framing that was more concrete than that on offer from the Amsterdam and Nice Declarations and more systematic than could be extracted from the ad hoc decision-making undertaken by the Court and (less authoritatively) by the Commission in the application of the free movement and competition rules.

  • [1] Walrave and Koch (n 1). 13 Meca-Medina andMajcen (n 3).
  • [2] 14 Bosman (n 2); Bernard (n 4). 15 COMP 37.806 ENIC/UEFA, IP/02/942, 27 June 2002.
  • [3] See especially B Garcia, ‘UEFA and the European Union: From Confrontation to Co-Operation’(2007) 3 JCER 202.
  • [4] Walrave and Koch (n 1); Case 13/76 Dona v Mantero [1976] ECR 1333. See Ch 4.2.
  • [5] COM (1999) 644 and 644/2.
 
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