The EU’s Legislative Competence in the Field of Sport
The EU possesses only the competences and powers which are conferred on it by its Treaties. This, as explained in Chapter 3, follows from the foundationally important Article 5 of the Treaty on European Union (TEU). 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) of the Treaty on the Functioning of the European Union (TFEU) and elaborated in Article 165 TFEU. That provision, already encountered in Chapter 3, provides that 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’; and that 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’.
Chapter 3 has already explained that the key provisions appear to carry rather more constitutional significance than is their effect in practice. In part this is because the grant of legislative competence which has been made is carefully and narrowly drawn. Article 165 TFEU provides that the aspirations quoted in the previous paragraph may be advanced by the adoption of EU legislation, but the legal instruments available are confined to incentive measures adopted by the Parliament and Council and recommendations adopted by the Council. Regulations, Directives, and Decisions, the triple pillars of EU law-making foreseen by Article 288 TFEU, may not be adopted pursuant to Article 165 TFEU. And the harmonization of laws and regulations is explicitly excluded. But the primary reason why Article 165 is less significant in stepping up the EU’s role in the field of sport than might be initially supposed is that the text of the Treaty prior to the amendments made with effect from 2009, though barren of explicit reference to sport, was nonetheless long interpreted in such a way as to exercise a significant influence over the autonomy enjoyed by sports federations. This is because of the functionally broad project to create an internal market and, in particular, because of the application and interpretation of the EU rules on free movement and competition.
Chapter 4 explored the development of the intersection between the law of the EU’s internal market and sport with reference to the free movement provisions. Chapter 5 performed the same function with reference to the competition rules of the Treaty. Chapters 4 and 5 explained how the case law reaching back to Walrave andKochi and embracing Bosman2 and Meca-Medina3 is readily understood in the light of Article 165 TFEU’s stipulation that the EU shall take into account ‘the specific nature of sport’. The entry into force of the Lisbon Treaty in 2009 offered a new vocabulary with which to express old challenges—how, if at all, the special characteristics of sport shall form part of the interpretation and application of EU internal market law, in particular free movement and competition law. Sports governing bodies will doubtless argue that Article 165 serves to strengthen the value that should be attached to sporting autonomy, but in relation to internal market law it is much more probably mere confirmation of existing practice, and this is so far the Court’s approach.4 Article 165 has no transformative effect on the interpretation and application of free movement and competition law.
The long road leading to entry into force of the Treaty of Lisbon in 2009 and the grant of the competence found in Article 165 TFEU, which is the journey traversed in this chapter, have strong thematic similarities with the road travelled in connection with the shaping of internal market law examined in the previous two chapters. In particular, just as sports bodies have, with determination but without success, sought to exclude their activities from review in the light of EU internal market law, so too have sports bodies long sought to achieve a much broader exclusion of their activities from the Treaty superstructure itself. And just as sports bodies have been forced to fight their battles within EU internal market law—by persuading the Court and Commission that EU law be interpreted in a manner that is sensitive to sport’s special concerns—so too sports bodies have been required to surrender their ambition to secure exemption from the scope of the Treaties and instead to accept, as second best, that sport be included in the Treaties but under an understanding that it is not simply an economic activity like any other. Article 165 is the culmination of the failed strategy of exclusion from EU law and represents instead grudgingly accepted and carefully designed inclusion within EU law.
This chapter is an exploration of the political dimension of how the quest for sporting autonomy in the EU shifted from a strategy of exclusion to one of (conditional) inclusion, whereas Chapters 4 and 5 looked at that same pattern of development in relation to judicial interpretation and application of the law.
So the purpose of this chapter is to explain how and why Article 165 TFEU came to be inserted in the Treaty. The fact that Article 165 exists at all, and the more detailed questions associated with exactly how it is written, are direct consequences of that long fruitless struggle for absolute sporting autonomy. This chapter tells a
- 1 Case 36/74 Walrave and Koch v Union Cycliste International  ECR 1405.
- 2 Case C-415/93 Union royale belge des societes de football association ASBL v Jean-Marc Bosman  ECR I-4921.
- 3 Case C-519/04 P Meca-Medina andMajcen v Commission  ECR I-6991.
- 4 Case C-32 5/08 Olympique Lyonnais v Olivier Bernard, Newcastle United  I-2177.
story of inclusion as a second-best option for sports governing bodies unable to extract a political promise of exclusion from the grip of EU law. It then explores just how the competence newly conferred on the EU to act in the field of sport has been exercised so far and reflects on how it should be exercised. The relevant provisions were envisaged by sporting bodies principally as devices designed to restrain the EU’s interventionist tendencies. And they have been drafted with some care in order to locate the EU in a role that is subordinate to that of the Member States and sporting organizations in the regulation of sport. That too has been a theme of the Commission’s own general policy articulation, found in the 2007 White Paper5 and the 2011 Communication on sport.  However, given the endemic tendency of the exercise of the EU’s competence to ‘creep’ outwards, the question is how sustainable is this promise of subordination. The worst fear of sporting bodies is that the EU, having been granted a carefully limited competence in sport, may extend and absorb new ambitions and interrupt the practice in a sport in a clumsy and insensitive manner. Article 165 is an attempt to engage with the EU on sport’s terms. But the terms belong within the EU Treaty system now, and it is the EU’s institutions that will play a central role in their practical elaboration.
The arrival of Article 165 TFEU in the Treaties with effect from 2009 put to an end any claim that EU law has no connection with sport. But 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 the elaboration of the ‘specific nature of sport’. The question is just what is and should be the shape of EU law and policy’s contribution to sport in a more active sense than may be achieved through the control exercised by free movement and competition law. Even to ask such a question invites expressions of anxiety from sports governing bodies, who will immediately appeal to the need to grant them autonomy from an EU system that lacks any obvious institutional expertise in sports governance and which, moreover, in so far as it chooses to set norms that are specific to the EU, risks forcing fragmentation on the typically global pattern of sports governance. The EU must show that it adds value to the governance of sport for its intervention to be regarded as legitimate.