The Treaty of Lisbon
The story is told elsewhere of how the Treaty of Lisbon was prepared so as to be sufficiently different from the Treaty establishing a Constitution to justify withdrawal of the promise of a referendum (except in Ireland) but not so different that the substance of the planned institutional reforms would be lost74 But in the case of sport, that story is of no direct relevance. For sport, what was agreed at the end of 2004
64 See eg M Dougan, ‘The Treaty of Lisbon 2007: Winning Minds, Not Hearts’ (2008) 45 CML Rev 617.
in the Treaty establishing a Constitution was left untouched in 2007, as the Lisbon Treaty was negotiated and agreed. So when sport was added to the armoury of the EU’s legislative competences with effect from December 2009, when the Treaty of Lisbon entered into force, the terms were those mapped and planned much earlier at the Convention on the Future of Europe.
Article 6(e) TFEU states that ‘The Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States. The areas of such action shall, at European level, be: ... education, vocational training, youth and sport .’. This grants the EU a competence in the field of sport that is the most slender of the three basic types of competence mapped out in Articles 2 to 6 TFEU. It is neither an exclusive nor a shared competence, but instead merely a supporting competence. The EU’s involvement in sport is declared to be subordinate to the actions of the Member States. Moreover, although this is not made explicit, the legitimate claims to organizational autonomy of sports governing bodies are also apt to confine the EU’s pretensions.
For sport, as for all EU activities, the details of the legislative competence conferred on the Union are located in the ramblingly huge Part Three of the TFEU, which is entitled ‘Union Policies and Internal Actions’, specifically in Title XII of Part Three ‘Education, Vocational Training, Youth and Sport’. The relevant Treaty Articles are Articles 165 and 166 TFEU, though only Article 165 TFEU applies directly to sport.
Stripped down to its sports-related content, Article 165 TFEU provides:
- 1. ... 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.
- 2. Union 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.
- 3. The Union and the Member States shall foster cooperation with third countries and the competent international organisations in the field of education and sport, in particular the Council of Europe.
- 4. In order to contribute to the achievement of the objectives referred to in this Article: the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, after consulting the Economic and Social Committee and the Committee of the Regions, shall adopt incentive measures, excluding any harmonisation of the laws and regulations of the Member States; the Council, on a proposal from the Commission, shall adopt recommendations.