Islj 2009 3-4 - TMC Asser Instituut

Community a new dimension, such as support for the disabled and
the establishment of exchange and training programmes on a
Community scale. 17 In its Helsinki Report on Sport, the Commission
focussed on the reaffirmation and strengthening of the educational
and social function of sport and the clarification of the legal environment
of sport. 18 Moreover, the Commission considered itself as the
defender of the European Sport Model.
The 2007 White Paper on Sport covers three major themes: the societal
role of sport, the economic dimension of sport, and the organisation
of sport. 19 However, both the first and the third themes include
a wide range of ‘sub-themes’. The Commission’s White Paper and its
accompanying documents have two important merits. First, these
documents, and in particular the background document, provide a
correct summary of the application of EC law to sport. 20 Second, the
listing of 53 actions in the Action Plan Pierre de Coubertin provided a
clear indication of the Commission’s future plans in the field of
sport. 21 Contrary to former policy statements, the Commission now
sees itself (and the European Union) with a limited role. 22 This is
illustrated by the repeated use of words like “support”, “facilitate”, or
“promote”, by the lack of any concrete legislative proposals and by the
fact that the Member States and the sports organisations are referred
to as key players. It should also be noted that whereas the
Commission still refers to the European sport model, it stipulates that
“[…] it is unrealistic to try to define a unified model of organisation
of sport in Europe”. 23
Modest results
The results of the direct EU sports policy are thus far rather limited.
In practice, bringing topics on to the EU sports agenda often results
in raising awareness, collecting information, and exchanging best
practices. The ‘concrete outcome’ remains limited to the level of communications,
conclusions, resolutions, reports or declarations. This to
a certain extent reflects the fact that in the past rather vague or unrealistic
goals, such as the preservation of the European Sport Model,
have been put forward. However, even when more concrete targets
were set, they seemed difficult to accomplish. In this regard, reference
can be made to the Commission’s support plan to combat doping. 24
In the aftermath of the 1998 ‘Festina Tour’ the Commission suggested
a three-layer approach: to assemble the experts’ opinions on the
ethical, legal and scientific dimensions of doping; to contribute to the
creation of WADA; and to mobilise Community instruments and
competences relevant to the field of doping. However, the realisation
of this support plan and the development of a comprehensive EU
anti-doping policy in general has proved to be rather troublesome. 25
Nevertheless, the evolution towards a more coherent EU sports
agenda, the establishment of working groups and the Commission’s
new approach in its White Paper seem to have some positive effects.
Whereas the implementation period of the Action Plan Pierre de
Coubertin will continue till the end of the year 2012, it is too soon for
a final evaluation. Yet, the regular drafting of implementation reports
provides a useful overview of the progress made. In practice, reference
can be made to the endorsement of Physical Activity Guidelines and
the adoption by WADA’s Executive Committee of a revised
International Standard following the EU Article 29 Data Protection
Working Party on the World Anti-Doping Agency’s International
Standard for the Protection of Privacy as notable results. 26 Moreover,
the dialogue with the sports federations, in particular the IOC, was
strengthened by initiatives such as the ‘reinvention’ of the European
Sport Forum and the organisation of top-level meetings with the
Olympic Movement. 27
Legal framework and political will
The absence of an express reference to sport in the EC Treaty has
often been put forward as the key explanation for the limited outcome
of the EU’s actions in the field of sport. Admittedly, the lack of
a clear legal (and consequently also financial) basis had effects
inevitably. 28 However, the absence of a ‘sports Article’ seems not the
only reason for the modest results of the EU approach. In practice,
lacking determination or political will seems to be another important
factor. Again, the actions in the field of doping illustrate this. Even if
this issue figured high on the political agenda, in the past, the
Commission openly blamed the Council for failing to back it. 29 As
Lenaerts flawlessly stated (in the field of education), this seeming contradiction
between high level political declarations and the result in
practice can be explained by the fact that “it makes a great difference
to a Member State whether it gives its approval to a “resolution” or
“conclusion”, or it adopts a measure which is going to form part of
judicially enforcable Community law”. 30 Indeed, it is not because a
specific legal basis in the field of sport is absent, that all (legal) action
in the field of doping must be excluded. In reality, links can be found
with public health, education, research, employment and social policy,
and even the functioning of the Internal Market. 31
It is against this background that the sport provisions in the Lisbon
Treaty must be assessed.
Article 165 of the Treaty on the Functioning of the European Union
(TFEU) 32 stipulates the following on sport:
“1.[…] The Union shall contribute to the promotion of European
sporting issues, while taking account of the specific nature of sport,
its structures based on voluntary activity and its social and educational
function.
2. Union action shall be aimed at:
- developing the European dimension in sport, by 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.
3. The Union and the Member States shall foster cooperation with
third countries and the competent international organisations in
the field of education and sport, in particular the Council of
Europe. […]”
The importance of these Treaty provisions lies principally in the fact
that they help to create clarity in the so-called ‘legal environment of
sport’. This insertion of sport in the formal framework of the Treaty
turns it into an official Union policy. For the first time, the EU is
17 Communication from the Commission
to the Council and the European
Parliament, The European Community
and sport, SEC (91) 1438 final.
18 Report from the Commission to the
European Council with a view to safeguarding
current sports structures and
maintaining the social function of sport
within the Community framework,
COM (99) 644 final.
19 European Commission, White Paper on
Sport, COM (2007) 391 final.
20 Communication from the Commission
to the Council, the European Parliament,
the Economic and Social Committee, and
the Committee of the Regions,
Community support plan to combat doping
in sport, COM (1999) 643 final.
21 Commission Staff Working Document,
Action Plan “Pierre de Coubertin”, SEC
(2007) 934.
22 See Weatherill, The White Paper on
Sport as an exercise in ‘Better regulation’,
in Gardiner, Parrish and Siekmann (eds.)
EU, Sport, Law and Policy. Regulation,
re-regulation and representation (T.M.C.
Asser Press, The Hague, 2009), p. 101-
114.
23 White Paper on Sport, above n. 19, p. 12.
24 Communication from the Commission
to the Council, the European Parliament,
the Economic and Social Committee and
the Committee of the Regions,
Community support plan to combat doping
in sport, COM (1999) 643.
25 See Vermeersch, ‘The European Union
and the fight against doping in sport: on
the field or on the sidelines?’, (2006)
Entertainment and Sports Law Journal.
26 Presidency’s Conclusions of the informal
meeting of the ministers in charge of
sport, Biarritz, 27-28 November 2008, p.
1; World Anti-Doping Agency adopts
revised data protection standard and continues
successful dialogue with the EU,
IP/09/733.
27 Report from the EU Sport Forum, organised
by the European Commission,
Biarritz, 26-27 November 2008;
Commission holds second high-level
meeting with Olympic movement,
IP/09/888. See in this respect also
European Council Declaration on sport,
Presidency conclusions, 11 and 12
December 2008, annex 5.
28 Van den Bogaert and Vermeersch, above
n. 2, p. 823.
29 Oral question by Athanasios Pafilis (H-
0249/04), Deep dismay over the use of
drugs at the Olympic Games.
30 Lenaerts, ‘Education in the European
Community law after Maastricht’, (1994)
CML Rev., p. 7-41.
31 Vermeersch, above n. 25
32 Consolidated version of the Treaty on the
Functioning of the European Union,
[2008] OJ C 115/47.
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