The European Commission adopted in 2007 a White Paper on Sport, which was its first comprehensive initiative on sport. The White Paper was focused on the societal role of sport, its economic aspects and its organisation in Europe. This paper covered extremely controversial issues such as transfers of players and TV rights. Originally, the EU had no role on sport affairs, and there was no need for that. The Commission has stressed, “sport activity is subject to the application of EU law” as “competition law and Internal Market provisions apply to sport in so far as it constitutes an economic activity.” However, the Lisbon Treaty has given EU competence in this area. At the time, when the White paper was adopted, the Commission has made clear that it was just waiting for the Lisbon Treaty to enter into force to propose concrete proposals for further EU action. The Lisbon Treaty has given the EU a new competence on sport.
Sport is one of the so-called areas where the Union shall have competence to "carry out actions to support, coordinate or supplement the actions of the member states". This is one of the areas where the Member States should have exclusive competence but the Union provides support or co-ordination. EU has now competence for coordinating sports policies. This means that the EU will interfere by directing British sport policy.
The new legal basis allows the Union to adopt measures for developing the European dimension in sport. According to Article 165 (4) the Council, acting by QMV, and the European Parliament through the ordinary legislative procedure (co-decision), “shall adopt incentive measures” aiming at contributing to the “promotion of European sporting issues”, including “promoting fairness and openness in sporting competitions and cooperation between bodies responsible for sports, and by protecting the physical and moral integrity of sportsmen and sportswomen, especially the youngest sportsmen and sportswomen."
It should be mentioned that the Commission has been funding preparatory actions in the field of sport. In 2009-2010 it provided around €6.5m to support 40 sport projects aimed at promoting health, social inclusion, volunteering, access for the disabled, gender equality and the fight against doping. Twelve new projects will be launched in 2011 to prevent doping in amateur sport and fitness, promote social inclusion, and foster volunteering in sport, for a total amount €2,5m.
The European Commission has recently adopted a Communication entitled “Developing the European Dimension in Sport.” The Commission recalls “Different aspects of the sport sector are covered by different Treaty provisions,” and “the Lisbon Treaty … calls for action to develop the European dimension in sport (Article 165 TFEU).”
In this Communication, which builds on the 2007 White Paper on Sport, the Commission presents several proposals covering three main areas: the societal role of sport, its economic dimension, and the organisation of sport. For each chapter the Commission proposes a nonexhaustive list of possible actions to be carried out by the Commission and the Member States. The Commission is aiming at strengthening sport in Europe by proposing action at EU level on areas, which it believes will be of added value both for the sport sector and Member States and cannot be sufficiently dealt with by Member States acting alone.
The Communication´s proposals will be discussed by the Council and European Parliament then the Commission will put forward concrete legislative proposals.
The Commission acknowledges that doping prevention and sanctions remains a responsibility of sport organisations and Member States. Nevertheless, according to the Commission the EU should become a signatory of the Anti-Doping Convention of the Council of Europe. The Commission wants, therefore, to propose a draft mandate for negotiations on EU accession to the AntiDoping Convention. Moreover, the Commission in order to strengthen EU action in the area of anti-doping proposes to “examine the most appropriate way to reinforce measures against trade in doping substances by organised networks, including if possible through criminal law.” One could wonder whether the Commission is planning to propose criminal sanctions for doping in sport.
The Commission also wants to develop and implement with the Member States “security arrangements and safety requirements for international sport events, including pan-European training and peer review projects for police officers regarding spectator violence.”
It is important to mention that the Council Decision on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, incorporates in the framework of the European Union the main provisions of the Prum Treaty. In order to prevent criminal offences and to maintain public order and security for major events with a cross-border dimension such as big sport events and Council summits, Member States are able to share personal data if there are circumstances given reason to believe that the data subjects will perpetrate a crime at the event or creates a threat to security.
Moreover, as regards social inclusion in and through sport, the Commission is planning to develop standards for accessibility of sport, leisure and recreation organisations, as well as promote the participation of people with disabilities in European sporting events. The Commission is also willing to support cross border projects to promote women's access to leadership positions in sport.
The Commission pointed out that Member States have different regulatory approaches in areas relating to intellectual property rights, particularly “regarding the extent of property rights for the organisers of sport competitions in relation to the events they organise,” and “the issue of image rights in sport.” The Commission will launch a study aiming at analysing sport organisers' rights and image rights in sport from the EU legal framework perspective. The Commission will focus its attention on sport-related intellectual property rights.
The 2007 White paper also addressed “the relationship between the sport sector and sport media” as television rights are the main source of income for professional sport in Europe. The Commission recommended “to sport organisations to pay due attention to the creation and maintenance of solidarity mechanisms.” In the present Communication, the Commission reiterates its position that “the commercial exploitation of professional sport should be accompanied by strong redistribution and solidarity mechanisms” considering the collective selling of media rights as “a good example of financial solidarity and redistribution mechanisms within sports.” It has, therefore, recommended, to “sport associations to establish mechanisms for the collective selling of media rights to ensure adequate redistribution of revenues, in full compliance with EU competition law while maintaining the right of the public to information.” The Commission is planning to “explore ways to strengthen financial solidarity mechanisms within sports.” The Premier League should decide how to sells its TV rights in the UK, this is a domestic issue and consequently the European Commission should not interfere.
The Commission pointed out that “Sport is financed in various ways by public authorities in all EU Member States” and recalled that “State aid is in principle incompatible with EU law, unless one of the derogations in Article 107 TFEU is applicable.” Moreover, it stressed “a new aid needs to be notified in advance to the Commission … and can only be awarded after the Commission has issued a favourable decision.” The Commission will, therefore, monitor, more closely, the application of state aid law in the field of sport.
As regards the organisation of sport, the Commission stressed that “the specific nature of sport … is now recognised by Article 165 TFEU.” The Commission pointed out that sporting rules are sport organisations responsibility nevertheless they “must be compatible with EU law.” According to Commission “sport has certain specific characteristics” however “it cannot be construed so as to justify a general exemption from the application of EU law.” Obviously, the Commission, and ultimately the ECJ, decide whether sporting rules are compatible with EU law.
The Commission stressed, again, that “In the area of professional sport, rules entailing direct discrimination (such as quotas of players on the basis of nationality) are not compatible with EU law” and “rules which are indirectly discriminatory (such as quotas for locally trained players), or which hinder free movement of workers (compensation for recruitment and training of young players), may be considered compatible if they pursue a legitimate objective and insofar as they are necessary and proportionate to the achievement of such an objective.”
It should be recalled that in May 2008 the European Commission published a study on the UEFA rule of ‘home-grown players’ under which clubs participating in the Champions League and the UEFA Cup are required to have a minimum number of ‘home-grown players’ in their squads. The European Commission has supported UEFA’s rule, which does not impose nationality quotas, and it took the opportunity to criticised FIFA’s plans.
The Commission is planning to assess the consequences of rules on home-grown players in team sports in 2012.
As regards transfer rules and the activities of sport agents, the Commission pointed out the “discrepancies in the way the activity of agents is regulated by public authorities and private bodies in Europe” and believes “that the time has come for an overall evaluation of transfer rules in professional sport in Europe.”
It is important to recall that the European Parliament has already adopted a resolution calling for the creation of a European licensing system for sports agents. Unsurprisingly, the European Commission could not agree more. According to Euractiv Androulla Vassiliou said that "the EU can play a coordinating role and help to ensure a harmonised approach to the issue of agents (…)" In fact, the European Commission is already planning to use Article 83 as a legal basis whereby it can harmonise criminal law.
The Commission is planning to organise a conference to debate possible ways for EU institutions and sports organisations to improve the situation concerning the activities of sports agents. Nevertheless, the Commission is already considering regulating sports agents.
The organisation of sport should be kept at the organisations' level. The Commission cannot forget that the EU competence over sport is limited. The Commission has not presented yet concrete legislative proposals but one could say that the commission is already overstepping the limits of the subsiarity principle. The Commission has already in mind to introduce measures that would restrict the autonomy of sports.