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Article 165 TFEU and Internal Market Law

The Treaty provisions on free movement and competition were not revised by the Treaty of Lisbon to add any reference to sport. They remain barren of any reference to sport. The sports-specific competence introduced with effect from 2009, Article 165 TFEU, is found elsewhere in the Treaty and it lacks any explicit organic link with the Treaty rules governing the internal market.

Article 165 TFEU is different from provisions such as Articles 11 and 12 TFEU which make explicit that requirements of environmental and consumer protection (respectively) shall be integrated into the definition and implementation of Union policies and activities, including the building of an internal market, but there is no room to doubt that Article 165 deserves to be read in this ‘horizontal’ manner. The Court treated free movement and competition law as open to interpretation in the light of the special features of sport in its case law decided before the entry into force of the Lisbon Treaty. The Court’s rulings in landmark cases, such as Walrave and Koch,i Bosman,[1] [2] Deliege,[3] [4] and Meca-Medina4 all demonstrate receptivity in principle to the claim that sport is special, albeit the Court has not always been persuaded that sport is special enough to justify the particular practices with which it is asked to deal. Moreover, the Court was explicitly willing to absorb the non-binding Amsterdam Declaration in applying the rules of internal market law in both Deliege[5] [6] and in Lehtonen.6 Therefore, given the grant of explicit and binding status to the ‘specific nature’ of sport under Article 165, it would be perverse to insist on attributing a less muscular role to the new Treaty provision. And the Court has not been perverse. Olympique Lyonnais v Olivier Bernard concerned the application of football’s transfer system to young players.[7] The Court cited its familiar acceptance, first found in Bosman, that the considerable social importance of sporting activities, and in particular football in the EU, leads to the finding that the objective of encouraging the recruitment and training of young players must be accepted as legitimate.[8] This, it added, meant that assessment of the transfer system, as a restriction on free movement, shall embrace ‘the specific characteristics of sport in general, and football in particular, and of their social and educational function’.[9] The Court then added that: ‘The relevance of those factors is also corroborated by their being mentioned in the second subparagraph of Article 165(1) TFEU.’[10] So the Court chose to treat the apparent constitutional innovation of the Lisbon Treaty as no more than a confirmation of its own pre-existing practice. The ruling in Bernard is significant for its confirmation that although Article 165 is not explicitly tied to the Treaty provisions governing the internal market, it will nevertheless be read by the Court as if integrated into the interpretation and application of the provisions on free movement and competition law. But, in substance, Article 165 has no transformative effect on internal market law. The same emerges from the ruling in Karen Murphy, in which the Court, finding that sporting events have a unique and original character which can transform them into subject matter that is worthy of protection at law, briefly referred to Article 165, but in a way that merely confirmed rather than adjusted its orthodox approach.n The Court is perfectly justified in adopting this consistent approach: Article 165 could have been, but plainly is not, written to change the state of the law. Article 165 expresses what the Court has always conceded—that in the application of internal market law sport is special.

It would not be difficult today to treat the Court’s rulings in landmark cases such as Walrave and Koch,[11] Bosman,[12] Deliege,[13] [14] [15] [16] [17] and Meca-Medinalb as expressions of Article 165 TFEU’s direction that the EU ‘shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport’. This ‘Lisbon vocabulary’ captures and confirms the pre-existing model of ‘conditional autonomy’ enjoyed by the lex sportiva under EU law, which was developed by the Court and the Commission over the extended period lasting until 2009 during which sport was not even mentioned in the EU’s governing Treaties. The ambivalent relationship between EU law and the lex sportiva crafted through the case law is now to be found at the heart of the provisions in the Treaty itself. Relying on Article 165’s language would be a reframing of the analysis, nothing more: the outcome of the investigation would not change at all.

In fact the Commission’s 2007 White Paper on Sport, and its accompanying Staff Working Document, are considerably more helpful than the spare terms of Article 165 in elucidating in detail what is at stake in the application of EU internal market law to sportP6 The ‘specificity of sport’ is used as an organizing concept in the White Paper and the Staff Working Document^7 But, as is true of Article 165, the point is not at all to propose a shift to something new in mediating the tension between EU law and the lex sportiva.

Exactly the same narrative of confirmation rather than reformation attaches to another innovation of the Lisbon Treaty, the grant of binding force to the Charter of Fundamental Rights of the European Uniond8 It too has been treated by the Court as exerting no transformative effect on internal market law. The key provisions are Articles 15 to 17 of the Charter, dealing with the freedom to choose an occupation, the freedom to conduct a business, and the right to property. In Pfleger, a post-Lisbon ruling, the Court treated controls on gambling as a restriction of the freedom to provide services within the meaning of Article 56 TFEU, and it added that the challenged national measures were restrictive not only from the point of view of Article 56 TFEU but were also limitations from the perspective of Articles 15 to 17 of the Charter.!® But then it simply declared that there was no need for separate examination of the Charter-based claims. Consideration of whether the rules were restrictions and, if so, whether they were justified as a means to address concerns such as consumer protection and the prevention of both fraud and incitement to squander money on gambling, was pursued in the same orthodox way as it had been in pre-Lisbon case law.2° The Court has similarly accepted that legislative intervention in the internal market inspired by public interest concerns, such as consumer protection and public health, may be permitted provided a fair balance is struck between the several fundamental rights at staked1 This is no different from its pre-existing approach in balancing competing interests. The Charter has acquired presentational prominence but it has not changed the structure or substance of internal market law generally nor in its particular application to sport. It has this in common with Article 165 TFEU.

In summary, Article 165 TFEU in particular and the reforms made with effect from 2009 by the Lisbon Treaty in general should not be regarded as transformative. They confirm the pre-existing trajectory of EU sports law, which holds that sport is special, but not always quite as special as governing bodies claim. The most useful contribution that may be drawn from Article 165 is to use it to propel with more confidence an argument that was already latent in Meca-Medina: that EU internal market law, embracing not only competition law but also free movement law, demands a case-by-case assessment of the compatibility of sporting practices with EU law. Only exceptionally does it immunize them from review, but, within its rather broad scope, it is open to, but not uncritically ready to accept, the claim that sport is special. Article 165’s embrace of ‘the specific nature of sport’ is readily understood as an encapsulation of the Court’s attitude in free movement law that sport does not enjoy any general autonomy from EU law, but that it is entitled to express its special characteristics as a basis for contextual application of EU law to sport. This is the heart of the interpretative or adjudicative strategy set out in Chapter 2.

Since Bosman and Deliege, most of the activity at the intersection between EU law and sport has concerned competition law rather than free movement law, but here too the focus is on the interpretative strategy as the route for sporting bodies to press for their—conditional—autonomy. Meca-Medina stands as an invitation by the Court to sporting bodies to show exactly what they do and why—what is ‘specific’—in order to secure a contextually sensitive interpretation and application of EU law to their practices. This matches Article 165 TFEU’s proviso that EU 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’. This fits a model of approval of anti-doping as an essential ingredient of modern sporting competition.

Within this explanation lies an important component in the case for an integrated EU sports law—that free movement law and competition law deserve to be read in a convergent manner. This is addressed in the next section.

21 eg Case C-544/10 Deutsches Weintor eG v LandRheinland-Pfalz, judgment of 6 September 2012; Case C-12/11 Denise McDonough v Ryanair Ltd, judgment of 31 January 2013. The case of this type which is closest to sport is Case C-283/11 Sky Osterreich GmbH, judgment of 22 January 2013: this is considered at Ch 11.9.7.

  • [1] Case 36/74 Walrave and Koch v Union Cycliste Internationale [1974] ECR 1405. Ch 4.2.
  • [2] Case C-415/93 Union royale belge des societes de football association ASBL v Jean-Marc Bosman [1995] ECR I-4921. Ch 4.3.
  • [3] Cases C-51/96 and C-191/97 Deliege v Ligue de Judo [2000] ECR I-2549. Ch 4.10.
  • [4] Case C-519/04 P Meca-Medina andMajcen v Commission [2006] ECR I-6991. Ch 5.3.
  • [5] Deliege (n 3) paras 41—42.
  • [6] Case C-176/96 Jyri Lehtonen and Castors Canada Dry Namur-Braine ASBL v Federation royalebelge des societes de basket-ball ASBL (FRBSB) [2000] ECR I-2681, paras 32—33.
  • [7] Case C-32 5/08 Olympique Lyonnais v Olivier Bernard, Newcastle United [2010] I-2177.
  • [8] ibid para 39, citing Bosman (n 2) para 106. 9 ibid para 40. ш ibid.
  • [9] ii Joined Cases C-403/08 and C-429/08 FA Premier League and others v QC Leisure and others,Karen Murphy v Media Protection Services Ltd [2011] ECR I-9083 (Grand Chamber), para 101. See
  • [10] more fully Ch 11.8.
  • [11] Walrave and Koch (n 1). 13 Bosman (n 2). 14 Deliege (n 3).
  • [12] 15 Meca-Medina (n 4).
  • [13] 16 See Ch 5. The White Paper on Sport, COM (2007) 391, 11 July 2007, and the accompany
  • [14] ing Staff Working Document, ‘The EU and Sport: Background and Context’, are both available via
  • [15] accessed 29 November 2016.
  • [16] White Paper on Sport (n 16) section 4.1; Staff Working Document, ‘The EU and Sport:Background and Context’ (n 16) see especially, but not only, 35—41.
  • [17] TEU, Art 6. 1® Case C-390/12 Pfleger, judgment of 30 April 2014. 2° See also Case C-98/14 Berlington, judgment of 11 June 2015 (TFEU, Art 56); Case C-367/12Sokoll-Seebacher, judgment of13 February 2014 (TFEU, Art 49).
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