Abstract
The classical and still and ever current central (legal) question in the debate on the position of sport in the European Union is whether sport is ‘special,’ whether it deserves specific treatment under European Law and to what extent and why. In other words should sport be exempted from the EC Treaty? It is the discussion on what is called in the jargon the ‘specificity of sport’ and the ‘sporting exception.’ In this article the general framework which the EU institutions developed regarding the specificity of sport, is dealt with. What are in fact the basics in this respect? Which sporting exceptions concerned have been accepted and which not and why? What is the result of a comparison of exceptions and justifications, what is the overall picture of the sport specificity practical application by the Commission as the EU day-to-day executive organ and the European Court of Justice as the EU supreme judicial organ? The cases and issues will be categorised according to whether they concern internal market freedoms (movement of workers and provision of services) or EU competition law in sport organisational matters.
This article is an updated and expanded version of Siekmann (2008), pp. 37–49.
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Notes
- 1.
See in particular Parrish and Miettinen (2008).
- 2.
Siekmann and Soek (2005).
- 3.
The White Paper on Sport pays attention to additional marginal, ‘soft law’ themes—also from a sports law perspective—like volunteering, social inclusion and integration, prevention of and fight against racism and violence, the environmental dimension of sport, supporters.
- 4.
See in particular, Parrish and Miettinen (2008).
- 5.
Cf., ‘Close reading’ describes, in literary criticism, the careful, sustained interpretation of a brief passage of text. Such a reading places great emphasis on the particular over the general, paying close attention to individual words, syntax, and the order in which sentences and ideas unfold as they are read. It is now a fundamental method of modern criticism. Close reading is sometimes called explication de texte, which is the name for the similar tradition of textual interpretation in French literary study. In the present, legal research context, ‘close reading’ for example would imply an answer to the question whether the words ‘specificity of sport’ are explicitly used in the decision-making practice the European Commission and the case-law of the Court.
- 6.
ECJ, Case No. C-36/74 [1974] ECR 1405.
- 7.
COM(1999) 644.
- 8.
ECJ, Case No. C-51/96, [2000] ECR I-2549 paras 41–42.
- 9.
ECJ, Case No. C-176/96 [2000] ECR I-2681 paras 32–33.
- 10.
CFI, case No. T-313/02 [2004] ECR II-3291 paras 37–38.
- 11.
ECJ, Case No. C-519/04 P, OJ C 224/8, 2006.
- 12.
Commission Staff Working Document ‘Sport and free movement’, Accompanying document to the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions ‘Developing the European Dimension in Sport’, Brussels, 18.1.2011, SEC(2011) 66/2, p. 6.
- 13.
Case 27398 Joint selling of the commercial rights of the UEFA Champions league, OJ 2003 L 291/25. Paras 131 and 165.
- 14.
A publication of May 2006 by MR José Louis Arnaut, former Portuguese Foreign Minister, at the initiative of the UK Sports Minister and financed by UEFA. See also—in reply to the ‘Arnaut Report’—the ‘Wathelet Report’: Sport Governance and EU Legal Order: Present and Future, by Prof. Melchior Wathelet, Universities of Louvain-la-Neuve and Liège (Belgium) and a former Member of the European Court of Justice, in: The Intyernational Sports Law Journal (ISLJ) 2007/3–4, pp. 3–9 and 10–11. The Wathelet Report was amongst others supported by Professor Stephen Weatherill, Jacques Delors Professor of European Community Law, University of Oxford, United Kingdom; Professor Roger Blanpain, Universities of Leuven, Belgium and Tilburg (The Netherlands), and co-founder and first President of FIFPro; Professor Klaus Vieweg, Director of the German and International Sports Law Research Unit, University of Erlangen-Nuremberg, Germany; and Dr Richard Parrish, Director of the Centre for Sports Law Research, Edge Hill University, United Kingdom. The report was distributed also in its original French language version throughout Europe by means of a press-release of the ASSER International Sports law Centre (T.M.C. Asser Instituut, The Hague, The Netherlands; see: www.sportslaw.nl/NEWS).
- 15.
The Lisbon Treaty (TEU and TFEU) went into force on 1 December 2009.
- 16.
See Weatherill (2010), pp. 11 and pp. 14–17.
- 17.
The Study was executed by the T.M.C. Asser Instituut, The Hague, The Netherlands, and Edge Hill and Loughborough Universities, UK.
- 18.
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions “Developing the European Dimension in Sport”, Brussels 18.1.2011, COM(2011) 12 final, pp. 10–11.
- 19.
See Accompanying document to the White Paper on Sport, pp. 43–44, 47–48.
- 20.
Case 36/74 of 12 December 1974.
- 21.
Case 13/76 of 14 July 1976.
- 22.
Case C-415/93 of 15 December 1995.
- 23.
Olympique Lyonnais, case C-325/08, delivered on 16 March 2010.
- 24.
Case C-51/96 and C-191/97 of 11 April 2000.
- 25.
Case C-117/96 of 13 April 2004.
- 26.
See: Commission Staff Working Document “The EU and sport: background and context”, Accompanying document to the White Paper on Sport, Brussels, 11.7.2007, SEC(2007) 935, pp. 35–37, 38–40, 49 and 55.
- 27.
Case T-313/02, ECR 2004 II-3291, and Case C-519/04, ECR 2006 I-6991.
- 28.
CFI and upheld in appeal by the ECJ: Cases T-193/02 and C-171/05P, ECR 2005 II-209 and ECR 2006 I-37 respectively. See also, Martins (2009).
- 29.
At p. 35, n. 99.
- 30.
Siekmann (2011).
- 31.
Case 37398, OJ 2003 L 291/25.
- 32.
Case 37214, OJ 2005 L 134/46.
- 33.
Case 38173, OJ 2008 C 7/18.
- 34.
Case 36851; IP/99/965 of 9 December 1999.
- 35.
Case 37806 of 25 June 2002.
- 36.
Case 36888, OJ 2000 L 5/55.
- 37.
Council Directive No. 89/552/EEC of 3 October 1989.
- 38.
N.B. The term is explicitly used by the Commission in this context in the Accompanying Document to the White Paper on Sport, at p. 53, para 4.8. Media.
- 39.
Council Directive No. 2010/13/EU, OJ No. L 95 of 15 April 2010, and OJ L 263 of 6 October 2010 (corrigendum). See also, the recent Judgments of the General Court of Justice of the EU of 17 February 2011 in UEFA v European Commission concerning the inclusion of World Cup matches in the national lists of Belgium and the United Kingdom (Cases T-55/08, 68/08 and 385/07).
- 40.
Should two clubs under joint control or ownership meet at a certain stage of the competition, the public’s perception of the authenticity of the result would be jeopardised; in the present case, for example, ENIC’s business interests in the field of the provision of betting services could be seen by some as an obstacle to the development of fair competition on the pitch (para 35 ENIC).
- 41.
Cases C-438/00, C-265/03, and C-152/08.
- 42.
Press releases IP/99/434 of 30 June 1999, and IP/01/1523 of 30 October 2001.
- 43.
Case C-49/07.
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Siekmann, R.C.R. (2012). The Specificity of Sport: Sporting Exceptions in EU Law. In: Introduction to International and European Sports Law. ASSER International Sports Law Series. T.M.C. Asser Press. https://doi.org/10.1007/978-90-6704-852-1_3
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