The Road to Article 165 TFEU: Abandoning the Dream of Absolute Exclusion for Sport
There is a common theme to the Court’s case law dealing with the application of internal market law to sport examined in Chapters 4 and 5 and the material covered in this chapter, stretching from the Amsterdam Declaration on Sport and its follow-up at Nice, through the 1999 Helsinki Report, and culminating in the superior account provided in the 2007 Commission White Paper on Sport. All are marked by a refusal to locate sport beyond the reach of EU law, despite the absence of any explicit treatment of sport in the Treaty texts. However, in their approach to sport they leave room for recognition of the possibility that sporting practices may be shown to deserve sensitive examination rather than a brutal assumption that sport is simply an economic sector like any other. So the Court, the Member States, and the Commission are all broadly committed to a model whereby sporting autonomy under EU law is conditional on a demonstration of precisely why EU law should adapt its core assumptions when confronted by the ‘specificity’ of sport. It is the adjudicative or interpretative means to respect sporting autonomy, which was introduced in Chapter 2. Sport enjoys no absolute autonomy.
Article 165 TFEU bears the same stamp. EU law enjoys a formal competence in the field of sport based on this provision, which was added to the Treaty on the Functioning of the European Union with effect from 2009 as a result of the amendments made by the Treaty of Lisbon. No longer is there any room to deny that sport is any proper part of the EU’s activities. But the terms of Article 165 are written with conspicuous care and caution. They attribute to the EU a legislative competence that is confined to the adoption of incentive measures. Moreover, Article 165 openly embraces the notion that sport is special in its reference to ‘the specific nature of sport’.
Article 165 reflects in far more concrete form than the Amsterdam and Nice Declarations a political view that EU law and sport interact—that there is no exclusion— and the stated terms of inclusion are crafted to admit sensitivity to sport’s concerns.
Quite how and why Article 165 TFEU is drafted in the way it is requires a look back over a period of almost ten years within which the long process of negotiation that ultimately led to the Lisbon Treaty’s entry into force in 2009 was conducted. Sport, of course, was a long way distant from the top of that reform agenda pursued erratically during a turbulent decade. But it was part of the reforming rhythm, albeit at a level of relatively low political salience. An exhaustive account of the negotiation of what is today Article 165 is not called for. The narrative is nonetheless worth brief attention because it reveals how the most coveted status sought by sports governing bodies, exclusion or absolute autonomy from EU law, was sought but proved politically unfeasible and how instead a strategy of inclusion combined with constitutionally entrenched respect for sport’s special character was ultimately arrived at. As Article 165 now makes clear, it is this ‘conditional autonomy’ which forms the basis for the future elaboration of EU sports law and policy.
The basic story is simply told. Sporting bodies sought to accept sport’s explicit admission to the EU Treaty structure in order to extract the maximum protection for their autonomy from the influence of the EU. This might seem a paradox, but in fact it is a reflection of a widespread though doubtless reluctant sense felt by sporting bodies that ignoring the EU and hoping it would go away had been exposed as a failed strategy, and that instead fighting for a favourable adjudicative and interpretative solution within the framework of EU law was the next best, and certainly most realistic, strategy.
-  This section is an abbreviated account of the story, based on B Garcia and S Weatherill,‘Engaging with the EU in order to minimize its impact: sport and the negotiation of the Treaty of