Positive Law—the Competence Conferred by Article 165 TFEU
According to the principle of conferral expressed in Article 5(1) TEU, the EU possesses only the competences and powers which are conferred on it by its Treaties. The EU has enjoyed a conferred competence to act in the field of sport since 2009, the date of entry into force of the Treaty of Lisbon. This is declared in Article 6(e) TFEU and elaborated in Article 165 TFEU.
Article 6 TFEU declares that the Union shall have competence to carry out actions to support, coordinate, or supplement the actions of the Member States in several listed areas, one of which is sport, which appears in Article 6(e) TFEU in the company of education, vocational training, and youth.
Article 165 TFEU is one of two Treaty articles (along with Article 166 TFEU) which make up Title XII of Part Three of the Treaty on the Functioning of the European Union, under the title ‘Education, Vocational training, youth and sport’. Filleted of content pertaining to education in order to bring into focus what Article 165 does for sport, it reads:
- 1. ... The Union shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport, its structures based on voluntary activity and its social and educational function.
- 2. Union 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.
- 3. The Union and the Member States shall foster cooperation with third countries and the competent international organisations in the field of education and sport, in particular the Council of Europe.
- 4. In order to contribute to the achievement of the objectives referred to in this Article: the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, after consulting the Economic and Social Committee and the Committee of the Regions, shall adopt incentive measures, excluding any harmonisation of the laws and regulations of the Member States; the Council, on a proposal from the Commission, shall adopt recommendations.
This is and has been since December 2009 the sport-specific competence conferred on the EU. Sport is not mentioned anywhere else in the EU Treaties. Articles 6(e) and 165 TFEU are the only references to it.
The carefully limited scope of Article 165 is best understood by contrasting it with legislative competences granted elsewhere by the TFEU. The EU possesses some conferred legislative competences that are, unlike Article 165, remarkably broad in their scope. This is true in particular of two provisions. Article 114 TFEU permits harmonization of national laws as a means to improve the functioning of the internal market. It is not sector-specific: any type of national practice may in principle be harmonized at EU level provided only that it contributes to promoting market integration, typically by replacing regulatory fragmentation at national level with a common EU regime. Article 352 TFEU is similarly functionally, not sectorally, driven. It envisages action by the EU to attain the objectives set out in the Treaties, in so far as the necessary powers are not granted elsewhere in the Treaties. As a legislative competence, Article 165 TFEU on sport is emphatically not of this broad type.
In fact most of the sector-specific legislative competences that have been added to the EU’s armoury, beginning with the first major revision of the founding Treaties in 1987 effected by the Single European Act, are typically drawn with more care and caution than Articles 114 and 352 TFEU. They betray an anxiety on the part of the Member States to equip the EU with the competence to act to address sector-specific problems which they share in common but also to rein in the exact scope and reach of that competence, in order to preserve room for state autonomy. Articles 167, 168, and 169 TFEU are good examples of this model. These provisions, addressing culture, public health, and consumer protection respectively, were added to the Treaty with effect from 1993 as a result of the amendments made by the Maastricht Treaty. Each, in slightly different and subtle ways, confines the vitality of the EU as an actor in the relevant fields, thereby preserving ample room for national action. Harmonization of culture, public health policy, and consumer protection pursuant to these Treaty provisions is excluded. Instruments available to the EU’s institutions are predominantly limited to incentive and supporting measures. Social policy, under Articles 151 to 161 TFEU, is another politically highly contested field, where reservations about the extent of the role to be played by the EU have led to several types of carefully drawn constraint being locked into the Treaty. Relevant techniques include detailed limitation of the material scope of conferred competence, restricting available legal instruments of which the EU may make use, locating EU intervention at the level of setting only minimum standards, and, in some areas of particular sensitivity, providing that the applicable voting rule in Council is hard-to-achieve unanimity. The narrative tells of EU legislative competence that is carefully controlled by the Member States. Article 165 TFEU on sport is very much of this cautious and controlled character, except also that the autonomy that is to be to a certain degree preserved is not only that of the public authorities in the Member State but also that of the private associations that typically run sport.
In fact, the scope of Article 165, on close inspection, is both restricted and obscure. Although the fact of sport’s addition to the list of EU competences is undeniably important as a constitutional landmark, the detailed content of this competence newly granted by the Member States to the EU is far less remarkable. In fact, the most striking aspect is not the fact that the EU has been granted an explicit role for the first time but rather that that role is drafted in terms which are both cautiously narrow and calculatedly vague.
It is in the first place important to note that there is created only a supporting competence for the EU, the weakest form of the three principal types of competence mapped in Title I of Part One of the TFEU. The basic competence descriptor found in Article 6(e) TFEU locates the Union as an entity with competence ‘to carry out actions to support, coordinate or supplement the actions of the Member States’. The EU is granted a subordinate role. Moreover, Article 165 TFEU is drafted to stress that the Union shall do no more than ‘contribute’ to the promotion of European sporting issues. And though legislation may be adopted, it is confined to ‘incentive measures, excluding any harmonisation’. This cautiously narrow formula is designed to reassure those who fear the rise of the EU as a sports regulator.
The calculatedly vague aspects of Article 165 focus on its embrace of ‘the specific nature of sport’ and ‘the European dimension in sport’. Quite what these notions entail is not at all clear. It is an open question whether they are intended to convey anything different from the practice accumulated before 2009 in the decision-making of the Court and the Commission when applying internal market law, which is examined in depth in the next two chapters. The vocabulary chosen by the Lisbon Treaty is at least capable of being read in the light of the pre-existing practice of the Court and the Commission. It will be explained in Chapters 4 and 5 that the pre-2009 case law dealing with the internal market is readily understood with hindsight in the light ofArticle 165’s stipulations, while so far since 2009 the Court has resisted reading internal market law any differently simply because of the rise of Article 165. In fact it has treated Article 165 TFEU as a corroboration of its case law.36
This openness is deliberate. Article 165 TFEU was drafted in order to reflect, but not to pin down in concrete or unambiguous form, sporting ambitions for autonomy, but precisely what is at stake—which extends only to conditional, not absolute, autonomy—requires the elaboration of institutional practice. In particular Article 165, inserted with effect from December 2009 by the amending Treaty of Lisbon, represents the failure of the strategy of securing complete insulation of sporting autonomy from the impact of EU law. Instead it is the product of adoption by the ‘sports lobby’ of a second best strategy, one of inclusion rather than exclusion but on terms which permit sport’s special concerns to be written into the Treaty. This will be explained more fully in Chapter 6. The consequence is that sports governing bodies must pursue the interpretative or adjudicative route to protecting their interests and their autonomy.  
That—as previously mentioned and as elaborated in Chapters 4 and 5—is largely the position reached under internal market law long before 2009. Indeed it was exactly the failure of the strategy of exclusion under internal market law, coupled to the inability to secure a reversal at political level through Treaty revision, that finally and grudgingly brought sport to accept the strategy of conditional inclusion of which Article 165 TFEU represents the ambiguous culmination. For the future one would expect to see the vocabulary of Article 165 as a frame for the long-standing debate about how to resolve the tension between EU law’s claim to exercise a supervisory jurisdiction and the desire of sporting bodies to achieve some degree of autonomy. Chapter 7 tracks the evolving narrative and argues for an integrated EU sports law built on the recognition of the specific nature of sport which is mandated by Article 165 TFEU. Chapter 12 pulls together the threads.
The arrival of Article 165 in the Treaties with effect from 2009 put to an end any claim that EU law has no connection with sport. The EU’s role in the field of sport is legitimated. It leaves open the precise nature of that connection, while preparing the ground for debate about how to manage the tension between sporting autonomy and EU law. In particular, what is the ‘specific nature’ of sport heralded by Article 165 TFEU? What is the nature of the conditional autonomy granted by EU law to the lex sportiva? These are the questions that will help to illuminate just how special sport truly is, and how that is reflected in the interpretation of legal rules.