It is generally believed that the greater the role of economic factors in sport, the greater the impact of law in sport. (1) This is also true of Community law. (2) In her speech delivered on 28 November 2003, Viviane Reding, then the EU commissioner for sports matters, announced that the elimination of doping in sport is to become one of the priorities in the Community's policy. (3) Such a declaration raises the question of the legal grounds that might lie at the EU anti-doping policy, or of the extent to which Community law might influence the anti-doping laws and regulations adopted by international sports federations, or of the relationship between WADA (World Anti-Doping-Agency) and EU policy, regarding the fight against doping going on today.
Legal sanctioning of doping at the international level--historical background
The battle against doping in sport that had been fought until late 1990s under the auspices of the International Olympic Committee was not successful. Poor international collaboration rendered the unification of procedures or jurisdiction impossible. (4) Despite the existence of an international legal document that addressed the problems of doping in sport, which took the form of the Anti-doping Convention of the Council of Europe No 135 issued on 16 November 1989 and ratified by the government of Poland on 1 November 1990 (5), it soon turned out that it was not an instrument capable of resolving the technical complexities (or technical problems) encountered in the fight against doping in sport. (6) The unquestionable advantage of having the Convention, however, is the fact that it triggered off mechanisms that broadened awareness of, and interest in the problem of doping in sport. (7)
The impulse that had significantly accelerated the efforts to develop effective ways of eliminating doping worldwide--and therefore also within the Community--were the doping scandals that came to light during the Tour de France race in 1998, when substances known for their doping characteristics were found in the samples taken from the Festina team. It was then that both the Council of Europe and the European Union resolved to take measures that would decidedly fight doping in sport.
At the Vienna summit in December 1998, the Council of Europe expressed its concern about the growing number and scale of doping scandals in sport. Those concerns were later reflected in the so called Community Plan to Combat Doping in Sport. That document had laid the grounds for a large-scale information and education campaign. The Council underlined the necessity of joint action at the Community level and obliged the European Commission to investigate the existing anti-doping laws in member states. (8) Further, basing on the opinion of the European Group of Ethics, the European Committee announced mobilisation of all Community instruments that might contribute to the elimination of doping in sport. At the same time it was agreed that the protection of sportsmen's rights was a higher goal of the world-wide anti-doping policy that should involve the harmonisation of doping rules and procedures, as well as disciplinary sanctions and the determination of a uniform list of illegal products and methods, giving priority to the health of the sportsmen through exercising anti-doping controls and checks also at times between competitions. The document failed, however, to specify on what legal grounds the European Union could base its intended action.
Legal grounds of the Community anti-doping policy
The EC founding Treaties and subsequent reforming treaties" do not contain any provision that would regulate stricte sports issues". Consequently, the classification of sport, and therefore the anti-doping policy as an area of EU activity, is not at all clear." Doping in sport is a multi-dimensional phenomenon and therefore the European Commission, in seeking to combat it, reaches for legal instruments which are also available in other policies. …