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Using Article 165 to Frame the EU’s Contribution

The examination of Article 165 TFEU presented in Chapter 6 shows a clear association with the treatment of sport under free movement and competition law which is discussed in Chapters 4 and 5. Article 165, like Articles 45, 56, 101, and 102, leaves decision-making competence primarily in the hands of sporting bodies but creates space for an EU contribution. Articles 6 and 165 TFEU place the EU in a subordinate role. What should be the shape of its contribution? [1]

It was explained in Chapter 6 that in January 2011 the Commission published a fourteen-page Communication, ‘Developing the European Dimension in Sport’.5i Its principal feature was a thread of continuity with the Commission’s 2007 White Paper. Article 165 TFEU was of course integrated into the examination, but it was not at all suggested that it changed the existing assumptions of the intersection between EU law and the lex sportiva. It treats the specific nature of sport as a concept established by the Court and taken into account by the Commission in the White Paper on Sport, and so now recognized by Article 165. The Communication asserts that ‘implementation of the White Paper has confirmed that, in a number of areas, action at EU level can provide significant added value’.52

This notion that the EU should be shown to add value is a helpful basis for assessing its proper role. This focus is also plain from the Council Resolution on a European Union Work Plan for Sport to cover 2011 to 201453 and from the Commission’s Report on that programme^4 There are two distinct dimensions to the notion that the EU should add value: first in connection with what the EU does and second in connection with the space it leaves for other actors.

The Council’s Resolution 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’. Moreover, 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 its Report the Commission treats the Work Plan as having provided ‘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 levelM6

The notion that the EU should be engaged in adding value is a helpful way to understand the notion that it should supplement rather than replace existing structures of governance in sport.

In similar vein, the follow-up Work Plan, founded on a further Council Resolution on a European Work Plan for Sport to cover 2014 to 2017,57 shows that anxiety to work with the sports movement and relevant competent organizations at national, European, and international levels, such as the Council of Europe and the World Anti-Doping Agency (WADA) remains prominent.

There is evidence that the mandate provided by Article 165 TFEU has provided a framework within which the EU has been able to contribute to the process of reform [2] [3] [4] [5] [6]

of WADA’s World Anti-Doping Code.58 Answers provided by the Commission to questions from MEPs have on occasion provided more concrete detail on how Article 165 might help to structure EU action. So, for example, the Commission announced a focus on tackling transnational threats that are specific to sport, such as doping, violence, racism, and intolerance, or issues relating to the integrity of competitions and sportspersons; developing European cooperation in sport through, for example, guidelines for dual careers of athletes or benchmarks for good governance of sporting organizations; and supporting grassroots sports organizations which can play a role in addressing wider socio-economic challenges, such as social inclusion.59 Here too it was explicitly stated that this would ‘bring EU added value to issues arising from the specific nature of sport’. This is a helpful means to focus on where the EU should and should not devote its attention, although it plainly does not supply concrete guidance on which priorities to choose. A glance at the website of the Directorate General for Education and Culture within the Commission reveals the principal areas of activity.[7] [8] [9] [10] They cover the three main themes tracked earlier: the societal role, which covers education and training, health and participation, social inclusion and dual careers; the economic dimension, which covers matters that have long been subjected to EU internal market law and which makes up the majority of this book; and matters of integrity, covering anti-doping, good governance, match-fixing, and sports agents. The list headed ‘Integrity’ also covers free movement of sportspersons and transfers, which could as easily count as matters within the economic dimension: these categories are not watertight.

Since the entry into force of the Lisbon Treaty in December 2009, it has been open to the Commission to propose legislative initiatives based on Article 165(4) TFEU ‘to contribute to the achievement of the objectives referred to’ in Article 165. So far the Commission has been reticent. In part this is simply a consequence of the tightly confined grant of legislative competence made by Article 165. More generally it reflects a shrewd unwillingness to propel the EU into areas where its ability to add value is contested.

For example, in the light of disorder in Poland during the Euro 2012 football competition, the Commission was asked whether it would introduce measures concerning safety inspections and standard-setting. Ms Vassilou was not tempted.161 The EU has a role in promoting cross-border cooperation in policing, she noted, but safety and security arrangements are the preserve of Member States and UEFA. The Council of Europe too has a role: after all, there are no sporting events where only countries that are members of the EU may participate, so EU action would tend to fragment treatment of a pan-European matter of concern between the ‘EU’ and the ‘non-EU’. The Euro 2012 competition was a case in point: it was co-hosted by Poland, which is an EU Member State, and Ukraine, which is not. In similar vein, when invited to comment on plans to demolish the Heysel stadium in Brussels, scene of ghastly loss of life before the European Cup Final in 1985, Ms Vassilou observed that the matter rested solely with the Belgian authorities; and, asked to comment on EU rules placing obligations on sports clubs to monitor the safety of facilities, she simply remarked that Article 165 TFEU ‘expressly excludes any harmonisation of laws’ and that the Commission therefore ‘has no competence to regulate this matter at EU level’.62 She was equally cautious, and eager to assert the autonomy of sporting organizations, when invited to comment on the selection of Israel as host country for the 2013 European Under-21 football championships.[11] [12] [13] [14] [15] [16] It is implausible that an EU intervention into such a delicate matter would add value. High Representative Catherine Ashton was similarly circumspect when invited to address the likelihood of depriving Qatar of the right to host the 2022 World Cup as a result of the conditions applicable in that country to migrant workers: she insisted that ‘human rights should be respected at all times’ but that she was required ‘to respect the autonomy of sport organisations’^4 In a thematically similar vein of restraint exercised by the Commission, Ms Vassilou, asked about the EU’s role in combating match-fixing, stated that a small budget would be available to support transnational projects aimed at preventing match-fixing, but emphasized the need for exchange of good practice and dialogue with sports federations and public authorities.65 In similar vein she has excluded the regulation of betting services, but plans to address betting-related match-fixing through the preparation of recommendations on best practice in cooperation with Member States, industry, and sports.66 Once again, there is here no hint of temptation to adopt a top-down approach. In fact, it is illuminating that in 2014 it was decided to address matchfixing through a Convention on the Manipulation of Sports Competitions, which was produced through the Council of Europe, not the EU77

Subsidiarity as a legal principle is defined in unhelpfully formal terms by Article 5(3) of the Treaty on European Union (TEU), but this is subsidiarity in a more general sense. It shows a restraint on the exercise of a conferred competence which reflects a general concern to use the EU to solve problems only where it is demonstrably well equipped so to do. Article 165 TFEU has been used primarily as a framing device, not as a springboard to legislative ambition.

The virtue of the Commission’s restraint is best appreciated by contrasting it to the Council’s occasional frankly silly exaggeration of the role of sport. A particularly vivid example is presented by the Council conclusions on the contribution of sport to the EU economy, and in particular to addressing youth unemployment and social exclusion.[17] These offer unobjectionable comments on the economic impact of sport and its potentially valuable role in playing a part in addressing youth unemployment. However additional claims about the virtue of sport in combating social exclusion are at best supported by flaky logic and minimal reasoning. ‘Sporting activities are ... an excellent means for integrating minority and marginalized groups’; sport ‘can contribute significantly to a sense of togetherness, helping to bring stability, cohesion and peace to commmunities’.[18] Such praise doubtless delights sports governing bodies, eager to show their most virtuous face as they press for autonomy from regulation, but such bland comments lack any precision. Most of all this rhetoric misleadingly conflates professional sport, built on winning and losing and often inflamed by antagonism, with recreational sport and sport pursued for health benefits.

Any hint that the Commission in particular and the EU in general might be tempted to take an inflated approach to their involvement in sport would meet resistance.[19] [20] [21] As shown in Chapter 6, however, Article 165 TFEU legitimates the EU’s role in the field of sport. Sporting bodies can no longer claim that sport is none of the EU’s business. Instead one would expect them to claim that it is the EU’s business but only to a limited extent, and only in so far as respect is shown for its ‘specific nature’. The theme here is consistent: sports bodies are better advised to engage with the EU as part of a strategy to minimize its perceived detrimental effect on their practice. They cannot simply ignore it but nor are they strong enough to extract a promise of immunity. So what is left is the ambiguous middle ground of conditional autonomy.

This is largely the position that the more politically aware sports governing bodies had already reached before 2009, aware that a strategy of exclusion had been so consistently exposed as unsuccessful before the Court and the Commission. UEFA was prominent among those bodies seeking constructive engagement.71 Its ‘Position paper’, mentioned in Chapter 6, states that Article 165 TFEU is ‘not intended to prejudice the legitimate autonomy and discretionary decision making power of sports federations’, and that it ‘requires that the specific nature of sport must be recognised’.72 The 2014 arrangement for cooperation between the Commission and UEFA shares this intent.[22] [23] [24] It is an embrace of conditional autonomy: a strategy of (wary) inclusion, not exclusion.

In similar vein, also met in Chapter 6, the Olympic and Sports Movement adopted a ‘Common Position’ in January 2010.74 Greeting the specific nature of sport as ‘a cornerstone of a new EU policy in the field of sport’, it urges the EU to ‘reaffirm its support for the independence and autonomy of sports federations and their right to determine autonomously their organisation and the promotion of their respective sport’. This was followed by the publication in 2011 of a Guide to EU Sport Policy by the EU Office of the European Olympic Committees, which is heavy-handed enough to dwell on the Greek roots of the word ‘autonomy’ in stressing its role ‘in the pyramidal structure of sport’ and presses that ‘The autonomy of sports organisations can be considered an essential component of the specificity of sport’.75 The document makes the case for the autonomy of sports governing bodies but it does not deny the legitimate involvement in principle of the EU, and in fact its contents show careful appreciation of the nuances of the EU’s role and operation. Practical elaboration awaits. It is to some extent forthcoming in the recent Council Resolutions and Commission practice considered previously, and in particular the evident concern to confine EU intervention to cases where it adds value should provide a modestly reassuring basis for planning by sports governing bodies. It is their different and more conciliatory tone when contrasted with the obstinacy surrounding Bosman and Meca-Medina which is particularly marked. This is as gratifying as it is well judged.

  • [1] This book does not aspire to a comparative treatment of sports law, but it is notable that in theUS relatively generous treatment of sporting autonomy under antitrust law is premised on preciselythis type of wider engagement in the shaping of the lex sportiva. See eg McArdle (n 48) ch 4 ‘CollectiveBargaining in US Professional Sports’ and ch 5 ‘Antitrust and Competitive Balance’; M Mitten, SportsLaw in the United States (Wolters Kluwer 2011) Pt I ch 5.3, Pt II ch 4.2.
  • [2] Commission Communication, of January 2011, ‘Developing the European Dimension in Sport’
  • [3] COM (2011) 12
  • [4] accessed 29 November 2016.
  • [5] 52 ibid para 1.2. 53 [2011] OJ C162/1. 54 com (2014) 22. 55 ibid 2.
  • [6] 56 ibid 9. 57 [2014] OJ C183/12.
  • [7] J Kornbeck, ‘The Stamina of the Bosman Legacy: The European Union and the Revision of theWorld Anti-Doping Code (2011-13)’ (2015) 22(2) MJ 283.
  • [8] E-006293/2011, Answer given by Ms Vassiliou on behalf of the Commission, 12 August 2011[2012] OJ C128E.
  • [9] Its website is at accessed 29 November 2016.
  • [10] P-006468/12 [2013] OJ C203E/65.
  • [11] P-007040/13 [2014] OJ C81E/64. « P-004857/13 [2014] OJ C35E/607.
  • [12] 64 E-013138/13 [2014] OJ C237/44. «5 E-007011/12 [2013] OJC219E/220.
  • [13] 66 E-013033/13 [2014] OJ C86E/596. On national and transnational practice, see Asser Institute,
  • [14] ‘Study on Risk Assessment and Mangement and Prevention of Conflicts of Interest in the Prevention
  • [15] and Fight against Betting-related Match Fixing in the EU 28’ (July 2014) accessed 29 November 2016.
  • [16] CETS No 215 accessed 29 November 2016. It is not yet in force.
  • [17] [2014] OJ C32/2. 69 ibid Recital 8.
  • [18] 70 The House of Lords Select Committee on the European Union, while noting the increased profileof sport in the Treaty post-Lisbon, urged the government ‘to ensure that the European institutionsadhere to this provision’ (Tenth Report 2007—08) para 8.49 accessed 29 November 2016. There are intriguingstrains in the literature which make the case for moving beyond competition law to embrace sector-specific public regulation of sporting autonomy—eg N Grow, ‘Regulating Professional Sports Leagues’
  • [19] (2015) 72 Wash and Lee L Rev 573—but materially and constitutionally the EU is poorly resourced tolay claim to carry out such a supervisory function.
  • [20] See in particular B Garcia, ‘UEFA and the European Union: From Confrontation to Cooperation’ (2007) 3 JCER 202; on subsequent practice, see A Geeraert and E Drieskens, ‘The EUControls FIFA and UEFA: A Principal-Agent Perspective’ (2015) 22 JEPP 1448.
  • [21] 72 UEFA’s Position on Article 165 of the Lisbon Treaty (sic) accessed 29November 2016.
  • [22] C(2014) 7378, 14 October 2014.
  • [23] 74 Common Position of the Olympic and Sports Movement on the implementation of the new Treatyon the Functioning of the European Union on sport (January 2010) accessed 29 November 2016.
  • [24] Guide to EU Sport Policy (September 2011) 13 accessed 29 November 2016.
 
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