The application of EU law to sport

Abstract

In spite of all the benefits that sport presents for the public in general, the history of direct EU involvement in the sphere of sport is relatively new. The adoption of the non-binding Declarations on Sport in Amsterdam and Nice were the first steps in the evolution of EU sport policy. They presented the Commission with opportunities to promote sports policy and clearly evidence the fact that the Member States were instrumental in the establishment of an EU sport policy. The next important development was the adoption of the White Paper on Sport, defined as the EU's first comprehensive strategic initiative on sport and offers useful guidance to all parties within the sphere of sport, with special reference to the specificity of sport. With the entry into force of the Treaty of Lisbon, sport was added as an EU competence, in a similar context to education and culture. Prior to the adoption of the Lisbon Treaty, the EU had no authority to develop a sports policy and acted in respect of other policies having an impact on sport. Which EU laws and regulations are applicable to sport is highly debatable as sport does not operate under similar provisions as other policy areas and in this regard the ECJ has played a vital role in establishing which rules are applicable. The EU considers itself flexible enough to be able to counter the specificity of sport and maintain a balance between sporting rules and Treaty provisions. In early judgements the ECJ dealt mainly with the principles of freedom of movement and non-discrimination and held that sporting rules are subject to EU law only when constituting an economic activity. The ECJ also established the concept of the 'sporting exception' which has been surrounded by scepticism with different lines of thought emerging. Thereafter, the ECJ had to deal with the legality of regulations set by sport governing bodies under competition law with the introduction of the proportionality test based on a case by case analysis. Member States have developed distinctive elements within their organlsatlonal structures which the EU has no Intention of modifying or to interfere in the organisation of sporting events within the Member States. Sport is usually structured on a system similar to a hierarchal pyramid with sport associations enjoying relative autonomy. Co-operation in the field of sport is difficult with a myriad of disciplines and parties involved and the reluctance to revolutionise existing structures. Sport associations maintain that an element of legal uncertainty is present in the link between EU law and sporting rules which essentially diminishes their autonomy. The EU notes that structured dialogue, cooperation with Member States and social dialogue are important elements for future collaboration. The relationship between sport governing bodies and the EU is considered as a clear example of the role of outside actors in the EU decision making process.