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, with Article 6 TEU, 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 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 first EU institution which was forced to grapple with the question of whether sport is special—the Court of Justice. 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 recognizes and, as the Court put it in Bernard, ‘corroborates’ the specific nature of sport as an element in the law of the internal market.76
Chapter 6 explored the theme of conditional autonomy in the political and legislative context. The Amsterdam and Nice Declarations capture perfectly the political readiness of the Member States to embrace and express the distinctive qualities and particular virtues of sport, but not to go so far as to immunize sport from the reach of EU law. Article 165 TFEU is simply a more elaborate version of that balanced approach. And the political negotiation that shaped it has conferred a legislative competence on the EU which is itself redolent of the notion of conditional autonomy. It does not at all elevate the EU to a position of top-down rule-maker. The EU’s role is supplementary only. To this extent sporting autonomy is respected. But not in absolute terms. There is space, admittedly slender, for the EU to act. And the Commission’s quest to focus on action that adds value is a particularly appealing method of making more concrete the conditions that should attach to the autonomy the EU allows sports bodies. The EU should add value—if it does not, its intervention deserves a sceptical reception. This provides a framework for critical analysis in the four chapters that follow, each of which deals with a particular area of intersection between EU law and the lex sportiva. Chapter 8 deals with nationality discrimination, Chapter 9 with the transfer system, Chapter 10 with governance, and the broadcasting sector is addressed in Chapter 11. Chapter 12 concludes.
76 Bernard (n 7).