Following the declaration on sport annexed to the Treaty of Amsterdam, the Vienna European Council asked the European Commission for reports to the Helsinki European Council. This enquiry, among other things, asked the European Commission to consult sporting organisations before taking decisions.
In May 1999, during the « assises européennes du sport », four seminars will be consecrated to the European Commission main topics, which are:
- the application of European competition rules to sports
- the European sport model (sport and television)
- sport as an instrument of social and employment policies
- the fight against doping.
The European Commission stresses on the fundamental freedoms, in particular freedom of movement (Article 48 of the EC Treaty), on competition policy (Articles 85 and 86 of the EC Treaty) and on the audio-visual sector.
First of all, as regards free movement of persons, one can mention that, in Bosman case, the European Court of Justice (ECJ) confirmed that the free movement principle applies to a professional player who is a national of one Member State and whose contract with a club comes to an end (Article 48 of the EC Treaty).
The ECJ added that it is unlawful to limit the number of professional players who are nationals of other Member States as well as to pay to the former club transfer fees to be employed by a club of another Member State.
According to the European Commission, the European competition rules can also ensure the principles recognised in the Bosman case.
Then, the European Commission is of the opinion that there are two levels of sporting activity. The first level concerns the social and cultural aspect of the sporting activity and therefore in theory the European competition rules do not apply.
The second level comprises a series of economic activities generated by the sporting activity to which the European competition rules apply. Despite this distinction, the application of these rules is not so obvious since these two levels overlap.
The sport features do not warrant an automatic exemption from the European competition rules. The economic activities generated by the sport have to follow general principles such as
- the safeguard of the general interest in relation to the protection of private interests
- the application of the "de minimis" rule and of Article 85 (3) of the EC Treaty
- the definition of a reference market adapted to the sport features.
At present, the European Commission is examining sixty-odd pending cases and some important issues have no response.
These issues are about the creation of new sporting organisations, the ban on organising competitions outside a given territory, the regulatory role of sporting event organisers, the transfer systems applying to team game players, nationality clauses, the agreements governing ticket sales for the 1998 football world cup, broadcasting rights, sponsorship and the prohibition for clubs belonging to one and the same owner to take part in the same competition.
Taking « sporting organisations' » practices as an example, the European Commission noted four categories of rules:
- non application of Article 85 (1) of the EC Treaty, given that such rules are inherent to sport and/or necessary for its organisation;
- prohibition of certain rules if they have a significant effect on trade between Member States;
- rules which are restrictive of competition but which in principle can be exempted, such as rules which do not affect a sportsman's freedom of movement inside the European Union;
- rules which are abusive of dominant position under Article 86 of the EC Treaty, such as the way in which a sportive organisation exercises its regulatory power.
Before final conclusions, discussions with the sport world will be launched at the initiative of Commissioner Marcelino Oreja of the DG X (information, communication, culture and audio-visual).
This article is based and incorporates information provided by the European Commission (Press releases) and is intended for general information. Specialist advice should be sought before acting on it.