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The 2007 White Paper

The Commission’s White Paper on Sport, released in the summer of 2007, is an immensely more reliable document than the Helsinki Report.'9 It is the product of wide-ranging consultation conducted by the Commission, and it is a thoroughly impressive piece of work. Even if it lags behind Article 165 TFEU in constitutional weight, it outstrips it in concrete analysis and intellectual ambition. It is of enduring value in the development of EU sports law.

Its Introduction claims that:

This initiative marks the first time that the Commission is addressing sport-related issues in a comprehensive manner. Its overall objective is to give strategic orientation on the role of sport in Europe, to encourage debate on specific problems, to enhance the visibility of sport in EU policy-making and to raise public awareness of the needs and specificities of the sector. The initiative aims to illustrate important issues such as the application of EU law to sport. It also seeks to set out further sports-related action at EU level.

These claims are bold, but the White Paper does not fall short. The White Paper ranges across sport as a means to improve public health, education, and the promotion of ‘active citizenship’ and goes so far as to encourage the use of sport in the EU’s external assistance and development policies, but it also dedicates close attention to the commercial implications of sport. It cites evidence to suggest that sport accounts for 3.7 per cent of EU GDP, and employment for 15 million people. It adds, however, that ‘notwithstanding the overall economic importance of sport, the vast majority of sporting activities takes place in non-profit structures, many of which depend on public support to provide access to sporting activities to all citizens’.[1] [2] [3] [4] This offers an appropriately nuanced depiction of the place of sport in society: in fact, it shows a proper recognition that a discourse of sports is superior to one of sport. The White Paper generally deserves praise for its contextual sensitivity and its determination not to impose one-size-fits-all solutions as well as for its readiness to situate the EU alongside, not above, other relevant actors with responsibility for governance in sport.31

The White Paper itself is twenty pages long and separated into ‘The Societal Role of Sport’, ‘The Economic Dimension of Sport’, and ‘The Organisation of Sport’, accompanied by an Action Plan, a Staff Working Document and an Impact Assessment which is designed to provide a basis for assessing the costs and benefits of EU regulatory choices. It ‘considers that certain values and traditions of European sport should be promoted’. But it accepts that there are ‘diversities and complexities’ in European sport, and that ‘it is unrealistic to try to define a unified model of organisation of sport in Europe’.32 It considers that ‘governance is mainly the responsibility of sports governing bodies and, to some extent, the Member States and social partners’; and that ‘self-regulation respectful of good governance principles’ will address most challenges.33

33 ibid 13.

The White Paper is also laced with careful respect for sites of governance beyond the EU in general and the Commission in particular, such as the World Anti-Doping Agency (WADA) and the United Nations Educational, Scientific and Cultural Organization (UNESCO). This follows the lead set by the Nice Declaration. It expresses a mood of deference which is today reflected in Article 165 TFEU, according to which the EU’s role, though formally recognized, is left imprecise and is plainly designed to be limited. Article 6 TFEU reinforces the impression that the EU’s role in sport is strictly subsidiary to that of the Member States and governing bodies in sport. The 2007 White Paper’s suggestion that ‘The Commission can play a role in encouraging the sharing of best practice in sport governance’ astutely locates the EU as facilitator rather than top-down rule- maker.[5] Relative levels of expertise strongly support such an understanding of the EU’s proper place. There is here an appealing flavour of regulatory modesty, even humility. The underlying theme is a desire to discover how and where the EU is able to add value, and to act according to that focus.

The notion of a European Model of Sport may have the type of explanatory value considered previously, especially as a contrast with an American Model of Sport, but in its 2007 White Paper the Commission decided to retreat quietly from the notion of using it in a prescriptively forceful manner. The relatively aggressive search for common organizing concepts or principles which marked the Commission’s Helsinki Report is noticeably subdued. This makes the White Paper less adventurous, but this is a well-judged adjustment. It notes that ‘the political debate on sport in Europe often attributes considerable importance to the so-called European Sport Model’; and adds that ‘certain values and traditions of European sport should be promoted’. However, referring to ‘the diversity and complexities of European sport’ it concedes that ‘it is unrealistic to try to define a unified model of organisation of sport in Europe’.35 This is balanced and it is cautious—and it is wise. In similar vein the Commission astutely draws attention to the limits of the EU as an appropriate agent for change: ‘European sport is generally organised according to continental structures, and not at EU levef.36 Sport is (organizationally) special!

The White Paper’s examination of ‘The Societal Role of Sport’ covers seven pages of the twenty. It begins with treatment of the public health advantages of physical exercise. There is not much the EU can contribute here. Its legal competence is thin, its material resources few, and its expertise in the field questionable. The Commission merely encourages the exchange of good practice, addressing both Member States and sports organizations. The matter of doping is treated in a similar fashion. The Commission confines itself to encouraging action against doping by Member State law enforcement agencies and sports organizations. It also urges better coordination at international level, referring explicitly to the contributions to be expected from the Council of Europe, WADA, and UNESCO77 Sport’s role in education and training should be promoted, but here too competence to act is limited and the Commission avoids advancing any grand claims. The same is true

  • 35 ibid 12.
  • 36 ibid 18.
  • 37 ibid 4—5, para 2.2.

in the matter of promoting volunteering and active citizenship and using sport to improve social inclusion, integration, and equal opportunities. In the latter case the Commission refers to use of sport as a tool and indicator in the pursuit of the ‘Open Method of Co-ordination’ on social protection and social inclusion. The White Paper conspicuously avoids making any commitment to proposing more ambitious binding forms of top-down EU law-making. The Commission also expresses support for strengthening the prevention of and fight against racism and violence, but stresses the need for dialogue between Member States, international organizations, law enforcement services, and other stakeholders such as supporters’ organizations and local authorities. The concern that animates the White Paper is to avoid any impression of top-down direction imposed by the EU. Instead, the Commission urges exchange of best practice among the several responsible actors and institutions.

The section in the White Paper entitled ‘The Economic Dimension of Sport’ is much shorter. It occupies just two of the total of twenty pages. It promises to seek to develop a European statistical method for measuring the economic impact of sport. This is presented as central to ‘moving towards evidence-based policies’. This is self-evidently sensible, though such promises are often hard to maintain in circumstances where a matter attains a high level of political salience.

Section 4.1 of the White Paper, within the section on ‘The Organisation of Sport’, is entitled ‘The specificity of sport’. The detailed examination of the application of EU internal market law to sport is reserved to the Staffs Working Document and its annexes.[6] Here, in the body of the White Paper itself, the Commission states that ‘sport has certain specific characteristics, which are often referred to as the “specificity of sport” ’.З[7] It sets out the specificity of European sport as apt to be ‘approached through two prisms’:

The specificity of sporting activities and of sporting rules, such as separate competitions for men and women, limitations on the number of participants in competitions, or the need to ensure uncertainty concerning outcomes and to preserve a competitive balance between clubs taking part in the same competitions;

The specificity of the sport structure, including notably the autonomy and diversity of sport organisations, a pyramid structure of competitions from grassroots to elite level and organised solidarity mechanisms between the different levels and operators, the organisation of sport on a national basis, and the principle of a single federation per sport.[8]

This is a helpful framework for analysis, but it is not designed to be innovative in its substance. This account is the Commission’s own attempt to capture the development of the intersection of EU internal market law and sport which was covered in Chapters 4 and 5. The ‘specificity of sport’ is linguistically a rather clumsy phrase/1 but it is intended to capture the failure of the strategy of absolute exclusion (of EU law) as a means to protect sporting autonomy and instead the embrace of what is, from the perspective of sporting bodies, the second-best strategy, that of inclusion (within EU law) but on terms which are sensitive to assessment of the special features of sport. Reference to the ‘specificity of sport’ nods to the content of the adjudicative or interpretative method for securing sporting autonomy which was introduced in Chapter 2. It is the model whereby sport enjoys conditional autonomy from EU law. And, as will be elaborated further later, the ‘specificity of sport’ has a close association with Article 165 TFEU’s assertion of the ‘specific nature of sport’.

In this vein, the Commission observes that it is in line with established case law that the specificity of sport falls to be considered in the interpretation and application of EU law, but it rejects any possibility of the grant of a general exemption from the application of EU law.[9] [10]2 The assessment of ‘whether a certain sporting rule is compatible with EU competition law can only be made on a case-by-case basis, as recently confirmed by the European Court of Justice in its Meca-Medina ruling’.43 This entails that ‘the formulation of general guidelines on the application of competition law to the sport sector’ is not feasible, and it is explicitly excluded by the Commission.44

Meca-Medina is the only judgment of the Court which is explicitly mentioned in the Commission’s 2007 White Paper. This emphasizes the rulings landmark status in EU sports law and, as explained in full in Chapter 5, this prominence is fully justified. The Commission Staff Working Document, which accompanies and elaborates the narrative presented over just twenty pages in the White Paper, includes substantial Annexes dealing with ‘Sport and EU Competition Rules’ and ‘Sport and Internal Market Freedoms’.45 It repeats that Meca-Medina is to be interpreted to mean that the qualification of a rule as ‘purely sporting’ is not sufficient to remove the athlete or the sports association adopting the rule from the scope of the Treaty competition rules and that a case-by-case analysis is therefore required. A general exemption is ‘neither possible nor warranted’.4fi Consequently sport’s specificity becomes part of the assessment of the conformity of the rule with EU law, not a basis for immunizing it from review. The Staff Working Document offers detailed legal analysis against a background assumption that EU law is appropriately respectful of necessary sporting values. The Staff Working Document also places great emphasis on the role of the many other public and private, national and international bodies and actors with a stake in the governance of sport. Like the White Paper, it shows scrupulous care not to promote the EU as a top-down rule-maker in sport.

Having adopted Meca-Medina as the focal point of the legal analysis, the White Paper proceeds to mention the application of EU law to nationality-based discrimination, transfers, players’ agents, the protection of minors, corruption, licensing systems for clubs, and the media (where the Commission recommends that sports organizations should pay attention to the creation and maintenance of solidarity mechanisms). However, the Commission’s discussion of these matters, most of which are the subject of detailed treatment in later chapters of this book, is relatively brief. In the White Paper the Commission does not pretend that it has all the answers, nor does it suggest that the EU more generally entertains an ambition to become intensively involved in directing the shape of governance in sport.

The 2007 White Paper on Sport deserves respect and attention. It has set the tone for much of the EU’s subsequent practice in the field of sport and, carefully written and appropriately modest about the EU’s capacity, it is a stable foundation stone. Most of all, the 2007 White Paper represented a vast improvement on the 1999 Helsinki Report. It avoids inflated claims about the EU’s actual and potential role in matters of sports governance. It avoids any suggestion that the EU has adequate legal competence, material resources, and basic knowledge and expertise to act as a primary site for addressing challenges that confront sport—or rather, sports—in Europe. It places the possible value of a role for the EU in the matter of sports governance within a context that pays due respect to the legitimate role to be played in sport by other public and private, national and international actors, including sports governing bodies themselves. Sports bodies intent on securing absolute autonomy from EU law will not be satisfied: they will scorn the claim that the EU is respectful of self-regulation in sport while simultaneously insisting on the priority of its unpredictable and intrusive legal rules.[11] [12] However, the White Paper’s sober depiction of the state of EU law shows how sport, a sector of considerable economic significance, cannot enjoy immunity from EU law, but it also carefully and convincingly sustains the argument that the ‘special’ features of sport—its ‘specificity’, in the terms preferred by the White Paper—can be and are accommodated within the interpretation and application of EU internal market law. In line with the Court’s case law explored in Chapter 5, this shows that EU internal market law is not impervious to the legitimate demands of sporting federations. This is the conditional autonomy of the lex sportiva under EU law. It is an EU ‘policy’ of sorts which is sensitive to the needs of sporting bodies while not at all purporting to intervene by establishing binding legislative standards.

The White Paper’s Conclusion noted that:

A mandate has been given by the European Council ofJune 2007 for the Intergovernmental Conference, which foresees a Treaty provision on sport. If necessary, the Commission may return to this issue and indicate further steps in the context of a new Treaty provision.4®

This invites that attention shall turn to the formal addition of sport to the EU’s list of legislative competences. This occurred in 2009, when the Treaty of Lisbon came into force, but the negotiation of what eventually became Article 165 TFEU was under way during the preparation of the 2007 White Paper, and so to some extent informs its background. That is, Article 165 TFEU and the 2007 White Paper did not emerge from entirely separate processes.

  • [1] ibid 11.
  • [2] See S Weatherill, ‘The White Paper on Sport as an Exercise in Better Regulation’ (2008) 8(1—2)
  • [3] Intl Sports LJ 3; B Garcia, ‘Sports Governance after the White Paper: The Demise of the EuropeanModel?’ (2009) 1 International Journal of Sport Policy and Politics 267. For agreement that theWhite Paper retreats from the Helsinki Report, but critical of that trend, see J Hill, ‘The EuropeanCommission’s White Paper on Sport: A Step Backwards for Specificity’ (2009) 1 International Journalof Sport Policy and Politics 253.
  • [4] 32 White Paper on Sport (n 5) 12.
  • [5] ibid 12.
  • [6] Available via accessed 29 November 2016.
  • [7] ibid 13. 40 ibid.
  • [8] 41 On its francophone origins, see A Duval, ‘La Lex Sportiva Face au Droit de l’UnionEuropeenne: Guerre et Paix dans l’Espace Juridique Transnational’ (DPhil thesis, EUI Florence 2015) 198—99, available via accessed 29 November 2016.
  • [9] 2 White Paper on Sport (n 5) 13. 43 ibid 14. 44 ibid. 45 See n 29.
  • [10] 43 White Paper on Sport (n 5); Staff Working Document, ‘The EU and Sport: Background and
  • [11] cf eg S Cuendet, ‘The EU Commission’s White Paper on Sport: An Official Coherent, Yet DebatedEntrance of the Commission in the Sports Arena’, Special Addendum to (2007) 7(3—4) Intl Sports LJ.
  • [12] 48 White Paper on Sport (n 5) 20.
 
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