The Specificity of Sport: Sporting Exceptions in EU Law

Article excerpt

The classical and still and ever current central (legal) question in the debate on the position of sport in the European Union is whether sport is "special", whether it deserves specific treatment under European Law and to what extent and why. In other words should sport be exempted from the EC Treaty? It is the discussion on what is called in the jargon the "specificity of sport" and the "sporting exception". (1) In this article the general framework which the EU institutions developed regarding the specificity of sport, is dealt with. What are in fact the basics in this respect? Which sporting exceptions concerned have been accepted and which not and why? What is the result of a comparison of exceptions and justifications, what is the overall picture of the sport specificity practical application by the Commission as the EU day-to-day executive organ and the European Court of Justice as the EU supreme judicial organ? The cases and issues will be categorised according to whether they concern "internal market freedoms (movement of workers and provision of services) or EU competition law in sport organisational matters.

1. Introduction

Not everybody knows that the European Union has a fairly extensive record in the field of sport. In 2005 the ASSER International Sports Law Centre published a book containing some 900 pages of selected legal and policy documents (resolutions of the European Parliament, decisions of the European Commission, memoranda, jurisprudence of the European Court of Justice, etc.) and another 900 pages were put on the Centre's website. (2) The EU has dealt with a wide range of subjects since the so-called Walrave case in 1974. The Book provides a detailed insight into what could be called the acquis communautaire sportive ("EU Sport Acquis") for the present and future (candidate) Member States. Apart from texts of a general policy character, specific subjects concern Boycott, Broadcasting, Community Aid and Sport Funding, Competition, Customs, Diplomas, Discrimination, Doping, Education and Youth, Freedom to provide services and of movement of workers, Olympic Games, State Aid, Tax, Tobacco Advertising, Trade Marks, Vandalism and Violence. (3)

The classical and still and ever current central (legal) question in the debate on the position of sport in the European Union is whether sport is "special", whether it deserves specific treatment under European Law and to what extent and why. In other words should sport be exempted from the EC Treaty? It is the discussion on what is called in the jargon the "specificity of sport" and the "sporting exception". (4) In this article I will deal with the general framework which the EU institutions developed regarding the specificity of sport. What are in fact the basics in this respect? I will deal with the following items: 1. the initial position of sport in the European (EC and EU) Treaties; 2. The 1997 Declaration on Sport in the Treaty of Amsterdam; 3. The Helsinki Report on Sport and the 2000 Declaration on Sport in the Treaty of Nice, 4. Close reading the references - general and specific - to the Declarations on Sport (Amsterdam, Nice) regarding the 'specificity of sport,' in the jurisprudence of the European Court of Justice and the decision-making practice of the Commission, (5) 5. The 2007 White Paper on Sport, 6. The specificity of sport in the White Paper, and finally 7. "Sport" in the Constitutional Treaty (Constitution for Europe) and the Reform (Lisbon) Treaty, and 8. Specificity of sport in the 2011 White Paper-plus. 9. An overview of the practice of application regarding the "sport specificity" concept in the European Commission's decision-making and the European Court of Justice's jurisprudence before and after the Lisbon Treaty, in which an explicit "sport provision" (Article 165 TFEU) is incorporated (for the first time in the history of the EC/EU basic treaties), is added. Which sporting exceptions concerned have been accepted and which not and why (cf. …