UACES Arena: EU Sports Policy after the Lisbon Treaty

Brussels, Belgium

10 November 2010

The latest edition of UACES Arena in Brussels discussed one of the perhaps less known novelties of the Treaty of Lisbon: the inclusion of an article that, for the first time, gives the European Union a direct competence (albeit at the lowest level) in the field of sport. The seminar was timely scheduled; as the European Commission was due to publish around that same date its communication to the Council and the Parliament outlining its policy priorities in the implementation of the new article. Dr Borja García, Lecturer in Sports Management and Policy at Loughborough University, and one of the founding members of the Association for the Study of Sport and the European Union (www.sportandeu.com), presented a legal and political assessment of the new article on sport introduced in the Treaty of Lisbon. His arguments draw on the recent study commissioned by the European Parliament to a team composed of Borja García, Professor Richard Parrish and Samuli Miettinen (both at Edge Hill University). The three authors of the study recently presented their findings to the European Parliament’s Committee on Culture and Education.

Following a brief introduction in which Dr García summarised the 20-year long process that has led to the inclusion of Article 165 in the Treaty on the Functioning of the European Union (TFEU), he first addressed the legal dimension of the new competence on sport. The main question in this respect is whether article 165 TFEU is likely to modify the position of the European Court of Justice and the Commission in the application of EU law to sport. Although external legal analysis can only be confirmed (or refuted) by a ruling of the ECJ itself, it was argued that Article 165 is unlikely to change the way in which both the Court and the Commission apply EU law to sport. The main argument behind that legal reasoning is that a review of the ECJ case law and Commission decisions over the last decade reveals that both institutions have actually been able to tailor the application of EU law to the characteristics of sport as a social and economic sector. Thus, the ECJ and the Commission have already recognised and respected in their decisions the ‘specific characteristics of sport’, which is one of the principles shrined in the new Article 165 TFEU. In consequence, Article 165 is just reinforcing what was a common practice of the Court and the Commission. Further to that, Dr García explained that the research team behind the study had come to the conclusion that the adoption by the Commission of guidelines on the application of Competition policy to sport is not recommended, for they will not greatly assist the quest for greater legal certainty in the regulation of sport by governing bodies.

The second part of the session at The Centre turned to the more political implications of the new article. It is in this field where actually Article 165 can have a greater impact, for it removes any legal uncertainty in the development of a EU sports policy. It is now possible for EU institutions to develop a coherent policy on sport and, more importantly, to fund programmes and initiatives with the interest of sport at heart. It is now the European Commission who has to propose a sports programme for the period 2012-2014. The European Parliament and the Council will then adopt the programme following the ordinary co-decision procedure. But, how is this new programme on sport going to look like?

The Commission is facing severe financial constraints, so it is going to be essentially a small programme. Moreover, it is recommended to focus on a narrow set of priorities to make the new actions really effective and to build a successful sports policy from the scarce resources. If the Commission tries to spread its proposals too much, then it risks to lose critical mass to make an impact with the activities of the new sports programme. The policy priorities that are emerging following dialogue between the Commission and different stakeholders cover a large range of issues. In the session the focus was on those that seem to attract a large agreement and, therefore, are likely to be present in the programme. These refer especially to issues of health enhancing physical education, the development of volunteering is sport and the development of social inclusion in and through sport. There is also a second group of policies where there is a good degree of consensus, but they seem to be lower in the agenda of some stakeholders. These priorities could also be part of the programme. They refer to issues of research in anti-doping, the effects of gambling in sport and the protection and education of athletes, especially those of a young age.

To conclude the seminar, consideration was given to the consequences of the new article for sports governance in Europe. The article seems to recognise and legitimise the role of sport governing bodies, but Dr García reminded that the onus is now on those organisations to earn their right to regulate sport through mechanisms of good governance, which are not always present in sport structures, as the latest scandals surrounding the election of the host for the 2018 and 2022 FIFA World Cup demonstrate. The European institutions are likely to reinforce their role as ‘partner’ of sport organizations, especially through the new programmes on sport, but they have not reluinquished their role as ‘supervisors’, and therefore the scrutiny of sport rules under EU rule is not going to disappear.





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