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Sport at the Convention on the Future of Europe and Beyond

At the Convention on the Future of Europe sport was not at any stage a high-profile issue in the debates. Most of the relatively few documents that referred to sport were confined to no more than brief comment or reference^4 Contributions which engaged more actively and directly with sport tended to display an anxiety in common that the special character of sport has been undermined by the intervention of EU law.55 Such a perspective, which would be favourably inclined to adopting more legally durable protection for sporting autonomy than had been provided by the Amsterdam and Nice Declarations, is plainly in line with that typically promoted by sporting federations. But that perspective was never carried forward with the backing of any intellectual momentum, nor did it ever gain political traction at the Convention.

It is pertinent to appreciate how very difficult it is to construct a suitable exclusion, even if one is favourably disposed towards such a model. Just as Chapters 4 and 5 tracked the case law to reveal largely fruitless attempts to attach an absolute immunity from EU law to sporting practices, so too here a symmetrical inability to draft an effective exclusionary Treaty provision infuses the more intensely political context discussed in this chapter.

One of the few contributions to the Convention to deal explicitly with sport, although sport was only one of its preoccupations, was the so-called ‘Freiburg draft’.56 Article 24 of this proposal was entitled ‘Respect for the Sovereignty of the Member States’. It provided that when exercising the competences assigned by the Treaty, the Union shall respect the sovereignty of the Member States especially [1] [2] [3] [4]

in listed areas which ‘are characteristic for their national identity and their fundamental constitutional legal order’. Among the several items on the list was ‘sports policy’. Union measures, it was stated, shall not ‘encroach upon the core area of these sovereign rights’.

There was no political appetite among the majority of delegates to introduce such a brake. In general the Convention’s chosen means to correct the alleged harm done by the EU to ‘sovereignty’ were pitched at the modest end of the spectrum.57 However, it should also be noted how awkward is this formulation in its detail. In the first instance it is not clear to which institutions of the Union this direction is addressed. If it is a control over the exercise of legislative competence then it is of little consequence as far as sport is concerned, because there is scarcely any such legislative activity. If it is apt to serve as a restraint on the application of the law of the internal market to sport then, given the overlap between these two spheres traced in the previous two chapters, it is capable of exerting a much more significant impact, but equally it is in that vein remarkably imprecise. How wide an exclusion is intended? It is inconceivable that all of the commercial activities undertaken in the field of sport, such as sales of merchandise and payment of wages, would be immune to EU law. So the Freiburg draft’s formula simply throws up awkward boundary disputes of the type already visible in the Court’s case law and in the cautious terms of the Amsterdam and Nice Declarations. In short, it does not really help. As a general observation, any attempt to carve out sectoral protection from the reach of EU law, especially internal market law, faces the structural difficulty (introduced in Chapter 3) that the logic of the Treaty is rooted in a broadly based, functionally driven regime.

The provision in the Treaty post-Lisbon which comes closest to Article 24 of the Freiburg draft is Article 4(2) TEU, but its direction that the Union shall respect the national identities and essential functions of the Member States does not mention sport and is unlikely to be apt to cover it, or at least all of it. Moreover, in any event it envisages a process of assessing the worth of particular state features in the context of the achievement of the EU’s objectives, whereas by contrast the Freiburg draft sought to seal off core areas of ‘sovereignty’ from EU intervention.58

The connection to Chapters 4 and 5 is marked. It is fiendishly difficult to find intellectually credible methods for securing a durable protection of sporting autonomy. Part of the problem is the functional breadth of the EU legal order: part of the problem is that sport is special, but not as special as is sometimes claimed. Ultimately sport is special but determining exactly how far it is special, and with what consequences for the interpretation and application of the law, requires a case- by-case examination. The Court’s ruling in Meca-Medina is a more viable platform [5] [6]

on which to stand this inquiry than the Freiburg draft or any similarly elusive abstract model.

However, the strategic concern of the Freiburg draft to include reference to sport in the Treaty precisely in order to protect its particular special features was thematically significant, and the debate (and eventually Article 165 TFEU) followed this track. The only question was how exactly to frame this.

A ‘Digest of contributions to the Forum’, prepared in the summer of 2002 in advance of a plenary session of the Convention on civil society, advised of a ‘call for a specific legal basis for support for sport’.59 However, Working Group V within the Convention on ‘Complementary Competencies’, chaired by Henning Christophersen, a Danish politician and former member of the Commission, had considered the case for bringing in explicit mention of sport as an area in which the EU might be empowered to adopt supporting measures and, though there was some support for the idea, had rejected it.[7] [8] [9] Moreover, a ‘preliminary draft Constitutional Treaty’ prepared by the Praesidium for a plenary session of the Convention on 28 October 2002, had no place for sport.

The crucial shift was achieved in late 2002 and early 2003. The draft text proposed by the Praesidium and released on 6 February 2003 listed sport as an area where the EU would be competent to take ‘supporting action’. The breakthrough had been achieved predominantly as a result of skilful lobbying by sports organizations ‘off the record’.161 The President of the International Olympic Committee (IOC), Jacques Rogge, was involved: he was able to gain access directly to Giscard d’Estaing, Chair of the Convention. Ministers of sport in some, but not all, of the Member States were also engaged in pressing the political case for sport’s inclusion in the Treaty. So too was the European Commission Sports Unit. The political intervention of Commissioner Viviane Reding, who at the time held responsibility for sport as part of her Education and Culture portfolio, was also influential in pushing the Praesidium.

The lobbying process succeeded. Once sport was ‘in’, with effect from February 2003, it was never in danger of being pushed out. Ultimately the Praesidium’s decision to incorporate sport, once taken, went largely unopposed. In fact, to put sport in its due context, its emergence was probably unnoticed by most members of the Convention. Energetic work behind the scenes was necessary to get sport across the threshold, but it was more a question of finding enough supporters than having to face down opponents. In relative terms sport was not a hot topic at the Convention nor in the subsequent intergovernmental conference that agreed the (ill-fated) Treaty establishing a Constitution.

The text agreed at the Convention placed sport alongside education, vocational training, and youth as an area of ‘supporting, coordinating or complementary action’ and added detailed provisions in a brand new Article, under the title ‘Education,

Vocational Training, Youth and Sport’. This provided (inter alia) that ‘The Union shall contribute to the promotion of European sporting issues, given the social and educational function of sport’. Union action was to be aimed at ‘developing the European dimension in sport, by promoting fairness in competitions and cooperation between sporting bodies and by protecting the physical and moral integrity of sportsmen and sportswomen, especially young sportsmen and sportswomen’.

This, then, does not mention ‘the specific nature of sport’, which has become the lynchpin of the case that ‘sport is special’, made explicit in Article 165 TFEU. That phrase was added between the middle of 2003, when the Convention concluded, and late 2004, when the Treaty establishing a Constitution was finally agreed by the Member States. It included sport alongside education, youth, and vocational training as an ‘area of supporting, coordinating or complementary action’ while the substantive elaboration stated that: ‘The Union 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.’

Once again the explanation was that the progress of negotiation had been influenced by astute behind-the-scenes lobbying which achieved textual adjustment that was designed to accentuate sport’s coveted special status.1^ There was clearly no magic intended in the phrase ‘the specific nature of sport’. Some contributions at the Convention preferred recognition of ‘the specificity of the sport’,[9] [11] the phrase that, as explained earlier, in section 6.5, would come to feature heavily in the Commission’s 2007 White Paper. The point was to capture, in an admittedly imprecise way, the general notion that sport deserves some degree of sensitive treatment in the application of legal rules. Excluding sport from the grip of the EU is politically unfeasible. Including within EU law explicit respect for its distinctive character was, however, attainable, and it is exactly in this direction that lobbying in favour of the stipulation to take account of the ‘specific nature of sport’ tended. It represents an acceptance of a strategy of conditional, not absolute, autonomy. Otherwise put, it is to press for an interpretative softening—to put faith in the adjudicative or interpretative approach to achieving sporting autonomy.

  • [1] Most notably in Germany: see the Lisbon ruling of the BVrfG, accessed 29 November 2016.
  • [2] See eg CONV 189/02, 12 July 2002 (Hansch et al), CONV 234/02, 3 September 2002 (Duff),CONV 335/02, 19 November 2002 (Ornella Paciotti), CONV 325/1/02/REV1, 6 December 2002(Brok), CONV 541/03, 6 February 2003 (Brok), CONV 325/2/02/REV2, 7 March 2003 (Brok),CONV 495/03, 20 January 2003 (Teufel).
  • [3] CONV 33/02, 17 April 2002 (Duhamel), CONV 337/02, 10 October 2002 (Tajani), CONV478/03, 10 January 2003 (Haenel et al).
  • [4] CONV 495/03, 20 January 2003.
  • [5] For a survey see S Weatherill, ‘Competence Creep and Competence Control’ (2004) 23 YEL 1.
  • [6] One might understand the concern to protect national constitutional identity in the BVerfG’sLisbon judgment (n 53) as a version of the Freiburg draft wrapped up in national, rather than EU,constitutional dress, but here too it would be a surprise if (all aspects of) sport were found to form partof that identity.
  • [7] CONV 112/02, 17 June 2002.
  • [8] CONV 375/1/02 accessed 29 November 2016.
  • [9] On the detail see Garcia and Weatherill (n 49).
  • [10] On the detail see Garcia and Weatherill (n 49).
  • [11] eg CONV 398/02, 12 November 2002 (Duhamel and Beres) 4; CONV 337/02 10 October2002 (Tajani) (‘specificita’). On the francophone background, cf Duval (n 41).
 
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