Lisbon—How Much Changed?
Article 165 TFEU places beyond question the EU’s legitimate claim to act in the field of sport. It is a statement of inclusion. Since 2009 the ‘keep out!’ reflex of sporting bodies insistent on absolute autonomy has been unsustainable because, on the entry into force of the Lisbon Treaty, sport became an explicit competence conferred on the EU.
For the first time, Article 165 equips the EU with a legislative competence that is explicit to sport. The EU has on occasion adopted legislation that has touched sport, but until 2009 the route was necessarily through a conferred competence that was not explicitly tied to sport. A sectoral committee covering employment in professional football was established in 2008, but this is a product of the ‘social dialogue’ foreseen by Articles 154 and 155 TFEU: it reaches sport via EU social policy.65 A further good example is provided by the designation of 2004 as the European Year of Sport. This was presented in the governing EU legal measure as the European Year of Education through Sport, based on what was then Article 149 EC on education.  Its Preamble mentions the Amsterdam and Nice Declarations, and a small budget was allocated to the co-financing of projects developed at national level, but the strict constitutional basis is rooted in education, not sport. The absence of any legislative competence explicitly devoted to sport closely circumscribed the EU’s role until 2009. The reforms made by the Treaty of Lisbon change this. But they do not change it much.
The key to Article 165’s legislative potential lies in its tightly confined terms. The Parliament and Council, acting in accordance with the ordinary legislative procedure, may adopt ‘incentive measures’—although harmonization of national laws is excluded—and the Council too may adopt recommendations. This is a power that goes beyond the EU’s previous remit. Anything that goes beyond nothing is something. For the first time sport is subject to explicit reference within the Treaties establishing and governing the EU. Given the fundamental principle that the EU possesses only the competences conferred upon it by its Member States, the novelty achieved by this express attribution in the field of sport counts as immensely constitutionally significant. But the legislative competence is written with caution in order to preclude the EU adopting a dominant role which would infringe the privileges of the Member States, and by implication also those of governing bodies in sport. So the EU’s newly acquired competence in fact represents a modest, even meagre, grant made by the Member States.
In this sense, the principle—t hat the EU is granted an explicit legislative competence—is far less compelling than the practice—which is that there is not much of substance or potential to that competence. Moreover, the apparently transformative character of Article 165 is undermined by appreciation of the story told in Chapters 4 and 5, according to which (as a consequence of the internal market project) the EU has long exercised significant influence over the autonomy enjoyed by sports federations operating on its territory.
Exactly what should be the purpose of the legislative competence conferred by Article 165 is presented with a flourish, albeit one that is—again, calculatedly—an ambiguous mix. Union action is to be aimed at ‘developing the European dimension in sport’, which immediately raises the question just what this ‘European dimension’ might comprise. It is questionable whether there is anything distinctively ‘European’ about sport, still less anything specifically EU in character. The identified concerns to promote cooperation between bodies responsible for sports, protect the physical and moral integrity of sportsmen and sportswomen, and to foster cooperation with third countries and competent international organizations are relatively concrete and readily understood. The promotion of fairness and openness in sporting competitions is strikingly less tangible. And the direction in the first paragraph of Article 165 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 is in similar vein aspirationally uncontentious but in detail puzzling. What are these ‘European sporting issues’? How should we understand the ‘specific nature of sport’? And while the ‘social and educational function’ of sport has resonance in some areas, it has little to do with professional sport as a generator of income, even if those engaged in that lucrative activity delight in dressing themselves in such virtuously tailored clothes.
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. But it leaves open the precise nature of that connection. It turns the focus on to precisely how far, and in what way, those special features—that ‘specific nature’—will and should affect the interpretation and application of EU law. In short, the vocabulary introduced by the Lisbon Treaty provides the material with which to frame the discussion about the nature of EU sports law and policy, but it makes no concrete commitments. Therefore what matters most is the elaboration of EU sports law and policy in the shadow of Article 165. Plainly sports bodies will seek to press the virtue of permitting them autonomy though the lens of Article 165 s ‘specific nature of sport’, but the institutions they must impress are the EU’s own, most of all the Commission and the Court. For sports governing bodies, the main anxiety attached to the embrace of conditional autonomy—the strategy of inclusion within the Treaty but accompanied by explicit reference to sport’s special features—i s that any choices will be made on the EU’s terms.