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Article 165 in Legislative and Policy-making Practice

In January 2011 the Commission published a fourteen-page Communication, ‘Developing the European Dimension in Sport’.[1] The changes wrought by the Lisbon Treaty are of course mentioned. However, it is thematically significant that the Communication does not treat Article 165 as transformative. The 2011 Communication’s principal source of inspiration is the 2007 White Paper, to which reference is made in the Communication’s very first sentence. Three main themes are sustained: the societal role of sport, the economic dimension of sport, and the organization of sport. The Communication ‘does not replace the White Paper but builds on its achievements’.[2] It is asserted that ‘implementation of the White Paper has confirmed that, in a number of areas, action at EU level can provide significant added value’,69 and in its strongest portrayal of consistency in policy practice, unbroken but confirmed by the arrival of Article 165, the Commission in the 2011 Communication holds that:

The specific nature of sport, a legal concept established by the Court of Justice of the European Union which has already been taken into account by the EU institutions in various circumstances and which was addressed in detail in the White Paper on Sport and the accompanying Staff Working Document, is now recognised by Article 165 TFEU. It encompasses all the characteristics that make sport special, such as for instance the interdependence between competing adversaries or the pyramid structure of open competitions.[3] [4] [5]

The 2007 White Paper, Article 165 TFEU, and the 2011 Communication share common themes. In fact the 2007 White Paper was already influenced by what would become the Lisbon Treaty reforms, which, as the account above makes clear, were already visible as the 2007 White Paper was under preparation, even if they were not yet in force. All three texts are directed at the key thematic question— sport is special, but how special? So the Commission, in releasing its 2011 Communication, shows a confidence that the Lisbon Treaty was not in substance a change of direction for EU sports law and policy.

However, Article 165 TFEU certainly does provide a constitutionally undisputable starting point in developing EU sports law and policy.

That the EU possesses an explicit competence in the field of sport has permitted the dedication of a budget to sport. This is handled by the Directorate General for Education and Culture within the Commission/1 As with Article 165 TFEU itself, the importance is more symbolic than substantive. The budget is relatively small. In the 2013 call for proposals 135 applications were received and the Commission decided to finance fifteen projects with a total amount of €2.8 million.72 These covered the strengthening of good governance and dual careers in sport through support for the mobility of volunteers, coaches, managers and stafl7 of non-profit sport organizations; protecting athletes, especially the youngest, from health and safety hazards by improving training and competition conditions; and promoting traditional European sports and games. Since 2014 a number of these activities have been the subject of development under the auspices of the ERASMUS+ programme for education, training, youth and sport/3 This is based on Regulation

12 8 8/20 1 3.[6] [7] [8] [9] [10] [11] [12] So, for example, support has been given to projects on strengthening Europe’s traditional sports75 and safeguarding youth sport/6 The 2017 Work Programme promises a focus on grassroots sport, as well as on social inclusion, promotion of good governance principles, and the fight against violence and intolerance in sport.77 It is supported by a budget for the year of some €38 million, which is less than 2 per cent of the total budget for ERASMUS+, the lion’s share of which is spent on education and training. Support is targeted in particular at cross-border collaborative partnerships and setting up not-for-profit sports events.

At a more general level, Article 165 TFEU means that it is open to the EU’s institutions to shape a policy and even, in the form of incentive measures, to adopt legislative initiatives which are openly tied to sport, rather than routed through another area where competence exists, such as education. There have, however, been no such incentive measures adopted, and so the principal interest in the elaboration of Article 165 lies in the chosen policy priorities.

In November 2010 the Council adopted a Resolution on structured dialogue in sport, which referred to Article 165 TFEU as heralding ‘a new era in EU priorities in the field of sport’/8 This was hyperbole and the Resolution itself is anodyne. But it demonstrated a new political confidence in connecting the EU to sport/9 In 2011 a Council Resolution adopted a European Union Work Plan for Sport to cover 2011—14. It begins by embracing ‘the competence assigned to the European Union, in particular by Article 6 and Article 165 of the Treaty on the Functioning of the European Union, according to which sport is an area where action at EU level should support, coordinate and supplement the actions of Member States’/0 This did not purport to write on a blank slate: it recognized and took into account ‘the achievements of the work in the informal structures established prior to the Lisbon Treaty’. Moreover, it built expressly on the themes identified in the 2007 White Paper and the 2011 Communication to address the societal role of sport, the economic dimension of sport, and the organization of sport. The constitutional point was that at this stage in the development of EU sports law the accusation that sport is none of the EU’s business has been silenced. The Resolution fixed on three priority themes: the integrity of sport, in particular the fight against doping, matchfixing, and the promotion of good governance; the social values of sport, in particular health, social inclusion, education, and volunteering; and the economic aspects of sport, in particular sustainable financing of grassroots sport and evidence-based policy making. It avoids any hint that the EU should take the lead: it insists on the place of the Member States and also on the need for the EU ‘to work closely with the sport movement and relevant competent organisations at national, European and international levels such as the Council of Europe’. In addition, Member States are instructed to respect ‘the principle of subsidiarity and the autonomy of sport’s governing structures’ when developing policy at national level.

In 2014 the Commission issued a report on the implementation of this, the EU’s first Work Plan for Sport, which covered 2011—14.S1 It describes a strengthened cooperation between the EU and the Member States in line with Article 165 TFEU in an effort to develop further the European dimension in sport. Following the Council’s Resolution, work focused on priority themes—the integrity of sport, social values of sport, and economic aspects of sport. The point was to orient the EU’s supporting competence to provide ‘a valuable framework for all actors to cooperate in a coordinated way and in mutual respect of national and EU competences’.^

The Report notes that many of the competences in the area of sport lie with the Member States, and draws from this that it is ‘important that priorities for a new EU Work Plan focus on actions delivering unambiguous value-added at EU level’.83

The follow-up Work Plan covers 2014—17. It was founded on a further Council Resolution on a European Work Plan for Sport to cover 2014 to 20 1 7.84 This follows the model of its predecessor by beginning with reference to ‘the competence assigned to the European Union, in particular by Article 6 and Article 165 of the Treaty on the Functioning of the European Union’. Its content is familiar too. The three main themes to be pursued are the integrity of sport, the economic dimension of sport, and sport and society. Anxiety to work with the sports movement and relevant competent organizations at national, European, and international levels— such as the Council of Europe and WADA—remains prominent.

  • [1] Commission Communication, January 2011, ‘Developing the European Dimension in Sport’COM (2011) 12 accessed 29 November 2016.
  • [2] ibid 2. 5 ibid para 1.2. 70 ibid 10.
  • [3] 72
  • [4] accessed 29 November 2016.
  • [5] 73 accessed 29 November 2016.
  • [6] Regulation (EU) 1288/2013 of 11 December 2013 establishing ‘Erasmus+’: the Union programme for education, training, youth and sport [2013] OJ L347/50.
  • [7] accessed 29 November 2016.
  • [8] 76 accessed 29 November 2016.
  • [9] C(2016) 5571, 5 September 2016, para 2.2.4. The document is available at accessed 29 November 2016.
  • [10] [2010] OJ C322/1, point 3(i).
  • [11] See similarly Council Resolution on the role of sport as a source of and driver for active socialinclusion [2010] OJ C326/5.
  • [12] [2011] OJ C162/1.
 
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