Article 165 TFEU is both revolutionary and trivial. At the constitutional level it seems to carry great weight as the EU’s first ever explicit conferred competence in the field of sport and, indeed, it (along with Article 6 TFEU) carries the first ever mention made of sport in the Treaties. However, in practice its effect is palpably less significant because of its narrowly drawn boundaries. Moreover, much of the content of Article 165 TFEU, especially the direction to take into account the specific nature of sport, is already familiar as a result of the Court’s creative interpretation and application of internal market law when it collides with sporting practices (the lex sportiva).
So in this sense Article 165 TFEU serves as a continuation of the story of EU sports law. It is a re-statement and acceptance of conditional autonomy. Sport is not able to extract a grant of absolute autonomy from the reach of EU law: politically it was not strong enough and in any event intellectually the case is without merit. Many sporting practices have clear and immediate economic consequences and to wall them off from the EU, in particular from internal market law, would damage the integrity of the EU system and grant a concession that no other sector is allowed. But sport is allowed an autonomy on condition that it is able to show just why its practices are necessary, despite the attentive scrutiny of EU law.
Chapters 4 and 5 examined the development of this model of conditional autonomy in the decisions of the EU institution which was first into the field to engage with the question of whether sport is special—the Court of Justice. This required it to shape the law in the face of the determined attempts of sports governing bodies to exclude EU law’s application to their practices or, at least, to secure an interpretation of EU law that was most favourable to their desire for autonomy. The more recent entry into force of the Lisbon Treaty gives a fresh vocabulary to the legal analysis and puts to an end any possibility of denying that sport is any of the EU’s business. But so far there is no indication that the Lisbon Treaty has changed the rules of the game. Article 165 TFEU recognizes and, as the Court put it in Olympique Lyonnais v Olivier Bernard, ‘corroborates’ the specific nature of sport as an element in the law of the internal market. This chapter has accordingly explored the theme of conditional autonomy in the political and legislative context.
The next chapter attempts to draw together the common themes of this chapter and the two that precede it. The aim is to use the ‘specific nature’ of sport to which Article 165 TFEU refers as a means to present an integrated account of the law of conditional autonomy which EU law applies in its dealings with the lex sportiva.
-  Bernard (n 4).