A study on the Lisbon Treaty and European Union sports policy, that was commissioned by the European Parliament to a group of experts headed by prominent Sport&EU members, has been published in October 2010.
The study is the result of extensive research by Sport&EU’s honorary chair, Professor Richard Parrish, Samuli Miettinen (both at Edge Hill University) and Borja García (Loughborough University), in a collaborative effort that was coordinated and managed by Rob Siekmann (TMC Asser Instituut). The study was commissioned in June 2010 by the European Parliament’s Committee on Education and Culture, and was awarded to the proposal presented by the Sport&EU members following an open tender process. In the study the research team analyses the legal and policy implications of Article 165 of the Treaty on the Functioning of the European Union (TFEU), especially with a view to suggest Members of the European Parliament an assessment of different alternatives in the development of this nascent EU sports policy.
The research team was especially given the brief to elucidate the extent to which the new article is likely to modify the current case law of the European Court of Justice and the European Commission in sport-related issues. A second part of the brief was to consider whether the new article could enhance the coherence of EU sports policy and to discuss possible avenues for action within that policy.
The main conclusions of the study are that, in legal terms, Article 165 TFEU is unlikely to modify the position the European Courts in sport-related cases, despite the reference to the specific nature of sport, because a review of the case law clearly reveals that both the Court and the Commission have been very receptive to the specific characteristics of sport in their rulings and decisions to date. Building on that, the research team considers, therefore, that the adoption of guidelines on the application of competition law and freedom of movement provisions to sport will not assist in achieving higher legal certainty for sports organisations.
Thus, the study does not recommend EU institutions to adopt such guidelines and considers the Commission’s approach in the White Paper to be correct. Moreover, the study considers that Article 165 does not contain horizontal clause to act as a constitutional requirement for EU institutions to take into account the specific nature of sport when operating under other legal bases (i.e. other policies). It is unlikely, though, that EU institutions will ignore the political message introduce in the article with the reference to specificity, but there is no legal constitutional requirement.
