Le Heysel : Une tragédie européenne (Documents, Actualités, Société) (French Edition)

Alternatively, it is not covered by the State aid rules if it falls within the competence of the State in the area of education. In the area of sport, there is a tradition in most European countries that public aid is given to local sport clubs at the local level mostly by municipalities. The sporting, social, cultural and recreational dimensions of amateur sport clubs are important for the public authorities of most Member States, which realise that sport plays an important role in promoting integration and health.

Many small clubs may need to obtain public financing to run efficiently. Given the fact that amateur clubs are generally not considered as undertakings within the meaning of Article 87 1 EC, to the extent that they do not pursue economic activities, subsidies granted to these entities are generally not covered by the State aid rules.

Since professional sport clubs are engaged in economic activities, there is no compelling argument why they should be exempted from the State aid rules. The need to ensure competitive equality between players, clubs and competitions as well as the necessity to ensure uncertainty of results can in fact be guaranteed most effectively by the application of State aid rules, which are meant to establish a level playing field and ensure that States or municipalities that are most willing or able to grant subsidies to their clubs will not disrupt fair competition.

In the field of indirect taxation, Article 93 of the EC Treaty provides for the adoption of provisions for the harmonisation of Member States' rules and a large amount of secondary legislation has been agreed in this area. On 1 January the Sixth VAT Directive[75] was replaced by this new Directive, which codifies the text without changing existing legislation. These rules aim at ensuring that the application of Member State legislation on VAT does not distort competition or hinder the free movement of goods and services.

The common system should, even if rates and exemptions are not fully harmonised, result in neutrality in competition so that within the territory of each Member State similar goods and services bear the same tax burden. For the purpose of point o , Member States may introduce any restrictions necessary, in particular as regards the number of events or the amount of receipts which give entitlement to exemption.

In such circumstances those activities will be regarded as "outside the scope of VAT" activities, meaning that they will also be non-taxable for VAT purposes. The application by Member States of the reduced VAT rate in the field of sport is not always in compliance with Community rules because of different interpretations of the "scope" of the reduced rate. With regards to the different VAT rates applied to "admission fees to sporting events" within Member States, the question of allowing a Member State to avoid a VAT bill for a given sporting event e.

World Cup, Olympic Games is a recurrent issue. The Commission is currently looking into the VAT rules governing public bodies and exemptions for certain activities in the public interest, with a view to modernising those rules in order to achieve a more consistent approach across the EU, avoid market distortions and meet current needs.

This process may have an impact on the special rates Member States are allowed to apply in the areas of "admission to sporting events" and "use of sporting facilities". In the absence of harmonisation, direct taxation remains a competence of the Member States. As a result, different national tax rules affect sports with regard to the taxation of clubs and of players. Different national tax rules can result in divergences e. The income of sportspersons performing their activities in a State other than their residence State is taxed in the State of activity Art.

The applied withholding tax procedure may create some practical difficulties to get overpaid taxes reimbursed, in particular if the sportsman performed activities in several States. The vast majority of sponsorship deals in Europe are found in the field of sport. From a sport point of view, sponsorship makes a significant contribution to many sport activities and is an important source of revenue for sport right holders federations, clubs, teams or individual sportspersons. Event sponsoring is also important. Events such as the FIFA World Cup , the European Championship or the Olympic Games offer multiple opportunities for lucrative sponsorship deals to market brands and develop business.

Commercial sport sponsorship deals are especially significant in professional sport, but sponsoring is also important in the grassroots sector through its supportive role for the development of local or amateur sport structures. It can be especially interesting for the local business sector. In its follow-up to the Green Paper on Commercial Communications in the Internal Market[83], the Commission identified 'sponsorship' as one of the priority areas for an Expert Group set up to examine problems arising from cross-border commercial communications and the objectives, levels and means of protection of public interest objectives of differing national regulations pertaining to them.

As regards sponsorship, the Commission and the Expert Group, which consisted of two representatives appointed by each Member State, looked at the following problems: The Commission and the Expert Group concluded that there was no need for harmonisation in this field. From an "ethical" or societal point of view, sport sponsorship must be seen in connection with policies aimed at protecting the public or the consumer. In the field of public health, Member States have different laws and policies in place that set e.

Some of these areas have been regulated or are currently being addressed at EU level. In view of the fact that the vast majority of sponsorship investment goes into sport, the economic interests of sport need to be taken into account when new policies with an impact on sponsoring are designed.

However, these interests need to be balanced against considerations of public health as well as societal and ethical considerations. As different national rules on tobacco advertising and sponsorship were becoming a barrier to the free movement between Member States of the products and services carrying them, the EU introduced a ban on tobacco advertising and sponsorship in [84] that Member States had to implement by 31 July , with a prolongation until 1 January for the ending of tobacco sponsorship at international sporting events.

In the autumn of , the Commission adopted a Communication setting out an EU strategy to support Member States in reducing harm related to alcohol consumption. The intention is to improve enforcement of current regulations, codes and standards. For both sponsors and right-holders the issue of ambushing of sponsored properties is of increasing concern. Although in most countries the notion of "ambush marketing" is undefined, in its broadest sense it can encompass any kind of marketing activity undertaken around a property by an entity that is not a sponsor, where the entity seeks commercial benefit from associating itself with the property.

There is little legislation in the area of ambush marketing. Where protection is offered, it has been developed through case law as an extension of the applicability of rules on intellectual property, unfair competition and, to a lesser extent, advertising and consumer protection. As a general rule, protection against ambush marketing tactics used within the stadium where a sport event occurs is most efficiently obtained through a well-drafted contract between the sponsor and the event organiser.

However, protection against such tactics used outside the physical location under the control of the event organiser is much more difficult to obtain. There is growing pressure from event organisers, who wish to protect their events and contractual agreements with their sponsors, on governments to introduce specific anti-ambush laws. Any Internal Market problem relating to sponsorship should be addressed in the context of the Commission's policy on Commercial Communications.

The protection of sport-related intellectual property rights has been shaped by case law of the European Court of Justice. Trade marks may consist of any signs capable of being represented graphically, such as a word, logo or colour scheme applied to goods and services. The signs must be capable of distinguishing the goods and services of one undertaking from those of other undertakings. A trademarked product informs the purchaser of the origin of the product, thus marking it as distinct from other products.

At EU level, trade mark law is governed by two instruments: In the sport context, trade marks are used extensively in the sport industry to protect sporting brands, but also by other sporting actors. The Court has given its interpretation of the trade mark directive in cases involving clubs or sporting goods manufacturers.

The use of a sign which is identical to the trade mark at issue is liable to jeopardise the guarantee of origin. The ECJ's findings are important for sport in that it supports trade mark owners and adds clarity to the question of whether a sign is being used as a trade mark or a badge of support.

Moreover, in the field of trade marks, the role played by big sport federations and the IOC in setting guidelines for trade mark identification processes and designs of sports products can be an issue of concern for sporting goods manufacturers. In the field of copyright and related rights, it is mainly the Database Directive[94] that is of relevance for sport as it relates to sports information, such as fixture lists lists of matches and dates owned by leagues and used by sport betting companies.

Regarding the exploitation of databases fixture lists and horse-racing data by bookmaking services, the Court held in these cases that the right-holders cannot claim protection under the Database Directive. Sport-related counterfeiting and piracy[95] have become an international phenomenon with considerable economic and social repercussions.

Counterfeiting activities during major sporting events are a real challenge and can have economic impacts for sport right-holders. The sporting goods industries are particularly concerned by the growing purchase of counterfeit goods over the internet. The protection and enforcement of intellectual property rights is an important issue for sport right-holders, although the sport sector hardly differs from other business sectors in this respect and faces similar challenges. Existing cooperation networks with the Commission for the fight against counterfeiting during major sporting events e.

Although its potential varies according to local specificities, sport can be a tool for local and regional development, urban regeneration or, in some cases, rural development nature sports. Synergies can be identified between sport and tourism and sport can stimulate the upgrading of collective infrastructure e.

Sport is not referred to in the regulatory framework and guidelines for the EU's cohesion policy for the period However, sport-related projects have been previously co-financed by the Structural Funds[96], based on other objectives such as tourism promotion, urban regeneration, economic competitiveness or interregional cooperation. Regional policy instruments can also play a role in preparing and ensuring the sustainability of certain major sporting events. For example, they were used to co-finance investment in transport infrastructure linked to the Olympic Games in Athens in [97], although they were not aimed at financing sport facilities, but rather at improving accessibility generally, with specific benefits linked to the events.

The economic importance of sport has grown dramatically in recent years and continues to grow. As a result, the Commission has had to deal with an increasing number of cases in the area of antitrust related to the sport sector and has resolved these cases either formally through decisions or informally. It has long been established by the case-law of the Community Courts and the decisional practice of the Commission that economic activities in the context of sport fall within the scope of EC law, including EC competition rules and internal market freedoms.

The very existence of an authoritative interpretation of the anti-trust provisions of the Treaty in the context of organisational sporting rules by the ECJ represents a significant contribution to legal certainty in this area. The Community Courts and the Commission have consistently taken into consideration the particular characteristics of sport setting it apart from other economic activities that are frequently referred to as the "specificity of sport".

Although no such legal concept has been developed or formally recognized by the Community Courts, it has become apparent that the following distinctive features may be of relevance when assessing the compliance of organisational sporting rules with Community law:. This interdependence between competing adversaries is a feature specific to sport and one which distinguishes it from other industry or service sectors. There must therefore be a certain degree of equality in competitions. This sets the sport sector apart from other industry or service sectors, where competition between firms serves the purpose of eliminating inefficient firms from the market.

Sport teams, clubs and athletes have a direct interest not only in there being other teams, clubs and athletes, but also in their economic viability as competitors. Traditionally, there is a single national sport association per sport and Member State, which operates under the umbrella of a single European association and a single worldwide association.

The pyramid structure results from the fact that the organisation of national championships and the selection of national athletes and national teams for international competitions often require the existence of one umbrella federation. The Community Courts and the Commission have both recognized the importance of the freedom of internal organization of sport associations.

The preservation of some of these essential social and cultural benefits of sport which contribute to stimulating production and economic development is supported through arrangements which provide for a redistribution of financial resources from professional to amateur levels of sport principle of solidarity. Controversial discussions in the past have never called into question the recognition of these unique characteristics of sport. Rather, they centered on the question of the precise impact of the specificity of sport on the application of EC competition law.

It was argued by some that so-called "purely sporting rules" automatically fall outside the scope of EC anti-trust rules and cannot, by definition, be in breach of those provisions. The Court insisted, on the contrary, that whenever the sporting activity in question constitutes an economic activity and thus falls within the scope of the EC Treaty, the conditions for engaging in it then are subject to obligations resulting from the various provisions of the Treaty including the competition rules. The Court spelled out the need to determine, on a case-by-case basis and irrespective of the nature of the rule, whether the specific requirements of Articles 81 EC or 82 EC are met.

It further clarified that the anti-doping rules at issue were capable of producing adverse effects on competition because of a potentially unwarranted exclusion of athletes from sporting events. In the light of Meca-Medina , it appears that a considerable number of organisational sporting rules, namely all those that determine the conditions for professional athletes, teams or clubs to engage in sporting activity as an economic activity, are subject to scrutiny under the anti-trust provisions of the Treaty.

The landmark Meca Medina ruling has therefore substantially enhanced legal certainty by clearly pronouncing that there exists no such thing as a category of "purely sporting rules" that would be excluded straightaway from the scope of EC competition law. This is not to say, however, that the ECJ has decided not to take into account the specific features of sport referred to above when assessing the compatibility of organisational sporting rules with EC competition law.

Rather, it has ruled that this cannot be done by way of declaring certain categories of rules a priori exempt from the application of the competition rules of the Treaty. In other words, the recognition of the specificity of sport cannot entail the categorical inapplicability of the EC competition provisions to organisational sporting rules but it has to be included as an element of legal significance within the context of analyzing the conformity of such rules with EC competition law.

The second aspect of the Meca Medina ruling contributing to increased legal certainty, apart from clarifying under which conditions EC competition law is applicable to sporting rules, is the establishment of a methodological framework for the examination of the compatibility of sporting rules with Articles 81 EC and 82 EC.

The ECJ spelled out that not every sporting rule that is based on an agreement of undertakings or on a decision of an association of undertakings which implies a restriction of the freedom of action is prohibited by Article 81 1. The ECJ also carried out a proportionality test examining, with a positive result, whether the rules were limited to what is necessary as regards i the threshold for the banned substance in question and ii the severity of the penalties. This demonstrates that the instruments of EC competition law provide sufficient flexibility in order to duly take into account the specificity of sport and illustrates how the distinctive features of sport play an essential role in analyzing the admissibility of organisational sporting rules under EC competition law.

Where these features form the basis of a legitimate sporting objective, a rule pursuing that objective is not in breach of EC competition law provided that restrictions contained in the rule are inherent in the pursuit of that objective and are proportionate to it. The methodology of applying EC anti-trust law, i. Articles 81 EC and 82 EC, to rules adopted by sport associations as set up by the ECJ in the Meca Medina ruling including criteria relating to the specificity of sport can be summarized as follows:.

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Does the rule in question restrict competition within the meaning of Article 81 1 EC or constitute an abuse of a dominant position under Article 82 EC? This will depend, in application of the principles established in the Wouters judgment, on the following factors: Is trade between Member States affected? Does the rule fulfil the conditions of Article 81 3 EC? The significance of the individual steps of this analysis are developed and explained in more detail in the Annex on Sport and EU Competition Rules.

It needs to be underscored that the Meca Medina ruling excludes the possibility of a pre-determined list of sporting rules that are in compliance with or in breach of EC competition law. Apart from the refusal by the ECJ to recognise purely sporting rules as automatically falling outside the scope of the Treaty competition rules or automatically compliant with them it is the requirement of a proportionality test that prevents any general categorisation.

That test implies the need to take account of the individual features of each case. Even for the same kind of rule e. In many if not most cases there are many conceivable shapes and forms of any particular type of rule. This, as well as the interrelation with other rules, the assessment of which is often indispensable to judge the proportionality of a certain regulation as a whole, renders it virtually impossible to comment on the compatibility of certain types of rules with EC competition law in general terms.

Nevertheless, the body of existing case law of Community Courts, relating to the application of Treaty provisions other than the competition rules, as well as the decision-making practice of the Commission concerning Articles 81 EC and 82 EC can assist in identifying the types of rules that may normally be considered not to infringe EC competition rules. These decisions will have to be reviewed in the light of the Meca Medina judgment but they remain relevant inasmuch as they identify objectives that may be recognized as legitimate within the context of carrying out the examination outlined above.

Bearing in mind the proviso that a specific assessment based on the circumstances of each individual case involving, most notably, a proportionality test, is indispensable and that therefore one can only express varying degrees of likelihood of compliance with EC competition law, the following distinction can be made on the basis of existing case law and decisional practice:.

Notwithstanding this tentative classification it needs to be recalled that an individual analysis of every challenged organisational sporting rule on a case-by-case basis is indispensable. The reasoning underlying this categorisation as well as the relevant case law and decision-making practice is specified in the Annex on Sport and EU Competition Rules.

The political debate on sport in Europe often attributes considerable importance to the so-called "European Sport Model". The Independent European Sport Review, for example, identifies several characteristics of sport in Europe which allegedly constitute this model: The European Union has approached sport through its special characteristics. These characteristics enhance the positive values carried by European sport and deserve to be supported. Nonetheless, it must be recognised that any attempt at precisely defining the "European Sport Model" quickly reaches its limits.

Some of the features often presented as "characteristic", such as the system of open competitions based on promotion and relegation, are actually limited to a certain category of sport team sport in this specific case. As a matter of fact, even for team sports the system of open competitions is somewhat mitigated by a licensing system that introduces financial criteria for participation in competitions.

Other sports present in Europe have adopted a totally or partially closed system for participation in professional sport competitions, such as motor-sports or cycling. The relevance of the pyramid structure for the organisation of competitions and of the sport itself is thus greatly reduced. It should be noted that the organisation of competitions also largely diverges from the pyramid structure in other sports, such as golf or tennis. On the other hand, what is often presented as constitutive of a unique "European" model can sometimes apply to the organisation of sport in other parts of the world or even globally.

The European model of sport has been a successful model and many of its elements have therefore been adopted by other countries around the world. New tendencies are challenging the traditional vision of a unified "European Sport Model". Economic and social developments that are common to the majority of the Member States increasing commercialisation and stagnation of public spending on the one hand, and an increase in the number of participants together with stagnation in the number of voluntary workers on the other have resulted in new challenges for the organisation of sport in Europe.

The emergence of new stakeholders participants outside the organised disciplines, professional sports clubs etc. The Commission is fully aware — and respectful — of the autonomy and diversity of sports and recognises that governance is mainly the responsibility of sports governing bodies and, to some extent, the Member States. The autonomy of sport organisations needs to be recognised and protected, within a framework that ensures the implementation of good governance principles such as democracy, transparency and accountability. While different sports may wish to examine their own organisation, the method will need to be adapted to fit the specific situation of each sport.

In the sports world, governance usually refers to reinforced transparency and the introduction of formal rules and procedures in fields which have hitherto been governed in a more informal way. The Commission considers that each sport has its specificities and deserves to be treated differently according to these. The EU will not impose general rules applicable to all European sports. However, EU law will continue to apply to sport, particularly as far as competition, freedom of movement and non-discrimination rules are concerned.

Sport has been historically organised on the basis of the nation-state and competitions between national teams are highly appreciated by citizens. However, regarding access to sport this traditional feature cannot be a reason to discriminate. The Treaties, which establish the right of every citizen of the Union to move and reside freely in the territory of the Member States, prohibit discrimination on grounds of nationality.

Access to sport is a social advantage, and given its high popularity and importance for the social integration of citizens, it cannot remain outside the scope of the fundamental principles of free movement. The application of Community rules on free movement to sport is not dealt with in any specific Community legal provision, but it is the result of established case law of the ECJ.

The Court has ruled that an EU national who legally resides in another Member State has the right to equal treatment in terms of social advantages. Amateur sport must not remain outside the scope of the fundamental principles of free movement. Whereas general access to sport practice and facilities does not seem to be a problem at European level, issues arise concerning membership of clubs for non-nationals, cross-border movement of sportspeople and participation in competitions.

The Commission reaffirms that membership of sports clubs and participation in competitions is an important factor to promote the integration of residents into the society of the host country, and that discrimination against EU nationals in this area must be avoided. In order to analyse discrimination in the amateur sports field, the Commission invited Member States in an expert meeting[] to provide it with the legal texts that govern the relationship between the State and the sport federations and to ensure at national level, together with sport federations, that there are no discriminatory provisions in place - neither in the statutes, nor in the competition regulations.

The Commission suggested that Member States address an official standard letter to national sport federations calling on them to take the necessary steps in order to change provisions where necessary. During consultations with the Member States and the sport movement, the Commission has also often received information about such problems.

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The Commission is thus aware of a number of existing obstacles to the free movement of amateur sportspeople in several Member States. The Commission also had an exchange of views on the result of these actions with Member States under the Luxembourg Presidency in In its interpretation of the principle of free movement for sportsmen, the Court formulated two types of prohibition.

Firstly, the Court prohibited all discrimination based on nationality and declared nationality quotas in sport clubs not in conformity with article Secondly, in order to ensure the full effectiveness of the principle of free movement of sportsmen after the expiry of a contract the Court also condemned obstacles to free movement. One consequence was the end of allowances for a transfer at the end of a contract. The Court has recognised the right of citizens of the Union who are lawfully resident in the territory of the host Member State to avail themselves of Article 12 of the EC Treaty when they are in a situation which is identical to that of nationals and falls within the scope ratione materiae of Community law.

This exception refers in particular to the selection of national teams. In order to be justified, rules of this type defined by sporting organisations may not go beyond what is necessary to achieve the legitimate aim pursued. Limited and proportionate restrictions to the principle of free movement, in line with Treaty provisions and ECJ rulings, can thus be accepted as regards:.

EU law prohibits with some exceptions based on public policy, public health and public security any discrimination on grounds of nationality. It establishes the right for any citizen of the Union to move and reside freely in the territory of the Member States. The Treaty also aims to abolish any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. The same prohibitions apply to discrimination based on nationality in the provision of services.

The interpretation of citizenship clauses to sport matters by the courts has led to the identification of some situations in which discrimination on grounds of nationality is clearly prohibited, or inversely, allowed. Thus, any discrimination on grounds of nationality is prohibited in sport, where sportspeople can be considered to be workers.

The composition of national teams is inherent in the organisation of competitions opposing national teams.

Jean-Philippe Leclaire

Rules concerning the composition of national teams, in particular rules that exclude non-national sportspeople from national teams, have been considered as rules that do not infringe the Treaty's free movement provisions. However, the release of under-contract players to play for national teams has recently been brought to court by some professional football clubs seeking compensation for time spent away from the club or for injuries sustained while on international duty.

Some Member States and sports organisations have signalled their preoccupations with the situation of competitions involving individual sportspersons and leading to the conferment of National Champion titles. On cultural grounds, they are of the opinion that the conferment of such titles should be reserved for nationals of the Member State within which the competition takes place.

A more technical concern is linked to the fact that in some cases, results in a national championship serve as a basis for the qualification of nationals to international competitions or for the composition of national teams. The legality of residency clauses also needs to be examined, as some sports organisations are concerned that some sportspeople can take part in different national championships. Requirements for residence and work permits may be perceived as an administrative hurdle by third-country nationals exercising sport activities in EU Member States.

The measures most likely to bring about direct benefits for third-country workers will be the planned proposal for a directive on rights of migrant workers as well as the planned proposal for a directive on the admission of highly skilled workers both scheduled for the second half of It should be noted that in [] and in [] the ECJ extended the principle of equal treatment to sportsmen from third countries having an Association Agreement with the European Union, because of the existence of non-discrimination clauses in these agreements.

The clauses specifically stated that the treatment accorded by each Member State to workers from partner countries legally employed in its territory, would be free from any discrimination based on nationality, as regards working conditions, remuneration and dismissal, relative to its own nationals. The principle of non-discrimination is reaffirmed in similar terms in the Cotonou Agreement[] between the European Union and 78 African, Caribbean and Pacific countries.

However, no case regarding this Agreement has so far reached the ECJ. The principle of non-discrimination applied in Association Agreements is restricted to workers legally employed in the territory of Member States, and subject to a condition of reciprocity. If the sport involves gainful employment it will be subject to Community law or to the provisions of non-discrimination of the Association Agreements. In its judgments of and the Court affirmed the interpretation taken in its earlier judgments in relation to sports and the importance of the principle of non-discrimination of third-country nationals who are legally employed in the Member States.

These clauses however, do not allow a right to free movement within the European Economic Area. As there is no special regulation for obtaining visas in order to attend sporting events or practice sports during international competitions, the general common visa rules apply for this category of persons. Visa requirements can sometimes affect the participation of third country nationals in international competitions, occasionally leading to disruptions in the structure of competitions.

These measures were justified by the exceptional character of the event and the need to respect the obligations of the host country under the Olympic Charter, in particular the obligation to ensure entry to its territory for members of the Olympic family, but without undermining the essential principles and the smooth functioning of the Schengen acquis. This way the Regulations provided a temporary derogation from the general visa rules of the Schengen acquis , including certain simplifications of the visa issuing procedure and the issuing of the visa in the form of a special number on the accreditation card.

Recently, in the framework of the proposal for a Regulation establishing a Community Code on Visas Visa Code [], which will replace the Common Consular Instructions[], the Commission suggested putting permanent provisions regarding measures envisaged to facilitate the procedures for applying for and issuing visas for members of the Olympic family taking part in future Olympic Games among the rules of procedures in the Visa Code.

In order to facilitate, in the future, this aspect of the organisation of Olympic Games by a Member State while fully applying the Schengen acquis, the specific procedures and conditions to be used will be attached to the Visa Code in an annex, which could be used without the need for lengthy legislative procedures. Furthermore, in order to facilitate people to people contacts, the visa facilitation agreements concluded with Russia and Ukraine and to be concluded with five Western Balkan countries provide for the simplification of documentary evidence for participants in international sport events and persons accompanying them in a professional capacity, who can get the visa free of charge, and — in certain circumstances — for the issuance of multiple-entry visa valid for a longer period of time.

Concerning the crossing of internal borders, in case of a serious threat to public policy or internal security e. The transfer system of players is an example of the specificity of sport. While no comparable phenomenon exists in other economic areas, transfers of players between clubs play an important role in the functioning of team sports and, in particular, professional team sports. Transfer rules aim to protect the integrity of sporting competition and to avoid problems such as money laundering, but they must be in compliance with EU law.

Provisions which preclude or deter a national of a Member State from leaving his country of origin in order to exercise his right to free movement therefore constitute an obstacle to that freedom, even if they apply without regard to the nationality of the workers concerned. The Bosman ruling stated that professional football is an economic activity and therefore subject to EU law.

The Lehtonen case[] implied that certain restrictions on labour mobility may be justified in order to ensure certain important characteristics of sporting competition such as transfer windows. In Nice in December , the European Council gave its support to a dialogue on the transfer system between the sports movement in particular football authorities , organisations representing professional sportspeople, the Commission and the Member States, with due regard for the specific requirements of sport, subject to compliance with Community law.

In , in the context of a case concerning alleged infringements of EU competition law by the FIFA Regulations on international football transfers, FIFA, in agreement with UEFA, undertook to change its existing Regulations on the status and transfers of players on the basis of the following principles[]:. The football authorities will establish and enforce a code of conduct to guarantee that sporting, training and academic education is provided to such players. In , the Commission considered this proposal to be balanced and therefore decided to close its investigation.

Many players but also sport clubs ask for the services of agents to negotiate and sign contracts in an increasingly complex legal environment. In recent years, cases brought before national courts and studies such as the Independent European Sport Review have called attention to some challenges related to this activity. Thus, agents are often subject to differing regulations in different Member States. Some Member States e. France, Portugal have introduced specific legislation on players' agents while in others e.

Belgium, Netherlands, United Kingdom the applicable law is the general law regarding employment agencies, but with specific references to players' agents. As regards the compatibility of federations' rules with EU competition law, even if the restrictions they impose on these sport-related professions are not likely to be considered inherent in the pursuit of a legitimate sporting objective, they may nevertheless be justified under Article 81 3 or Article 82 EC.

There are reports on bad practices in the activities of some agents which have resulted in instances of corruption, money laundering and trafficking in underage players. These practices are damaging for the sport sector in general and raise important governance questions. The health and security of players, and particularly minors, needs to be protected and criminal activities fought against. The European Parliament and stakeholders have called on the EU to regulate the activity of players' agents through an EU legislative initiative.

The European Parliament resolution on the future of professional football "calls on the Commission to support UEFA's efforts to regulate players' agents, if necessary by presenting a proposal for a directive concerning players' agents which could include: It is therefore necessary to further analyse the extent of the problem. More information is needed and the impact of any proposed solution at EU level must be carefully assessed.

There are concerns that the exploitation sometimes also referred to as "trafficking" of young players is continuing. It is reported that an international network managed by agents takes very young players to Europe especially from Africa and Latin America.

The most serious problem concerns children who are not selected for competitions and are abandoned in a foreign country, often falling in this way in an irregular position which fosters their further exploitation. In most cases this phenomenon does not fall into the legal definition of trafficking in human beings, which is a very serious crime and implies the transfer of the child for the specific purpose of forced labour, sexual exploitation or other forms of severe exploitation such as begging. However, the situation of young players taken abroad for sport training and then abandoned without any support[] is absolutely unacceptable given the fundamental values recognised by the EU and its Member States.

It is also contrary to the values of sport. The European Council's Nice Declaration mentions the need for the Community to take into account the protection of young sportsmen and sportswomen. The European Parliament has pointed out in its resolution on the future of professional football that it is "convinced that additional arrangements are necessary to ensure that the home-grown players initiative does not lead to child trafficking, with some clubs giving contracts to very young children below 16 years of age ;" and that "young players must be given the opportunity for general education and vocational training, in parallel with their club and training activities, and that the clubs should ensure that young players from third countries return safely home if their career does not take off in Europe.

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The European Parliament "insists that immigration law must always be respected in relation to the recruitment of young foreign talent" and "calls for action to prevent the social exclusion of young people who are ultimately not selected. The main objectives of the Directive on the Protection of Young People at Work are to ensure that the Member States prohibit the work of children, to ensure that work of adolescents is strictly regulated and protected and to ensure that employers guarantee that young people have working conditions suitable for their age.

The Directive allows Member States to stipulate, subject to certain conditions, that the ban on the employment of children is not applicable, among others, to children employed for the purposes of cultural, artistic, sports or advertising activities, subject to prior authorisation by the competent authority in each individual case. There are indications that the practical enforcement of the Directive is only partial with regard to minors in sport.

This problem needs to be studied and addressed. The protection of minors in sport would also benefit from more effective regulation of the activities of players' agents, better licensing systems for sport clubs, and social dialogue in the sport sector. There have repeatedly been reports about corruption in the sport sector. Although there are EU instruments in place which require Member States to criminalise offences of corruption in both the public[] and the private[] sector, the Commission believes that more can still be done to optimise the effectiveness of these measures in relation to the particular challenges of the sport sector.

It has so far not been possible to tackle this issue through EU mechanisms. The European Parliament considers that "many criminal activities match fixing, corruption, etc. Sport organisations are generally aware of these problems and have for some time been discussing them with governmental actors. The need for sport organisations to be transparent was recognised by participants at the conference "Rules of the Game", which took place in Brussels in In fact, it is one of the key aspects of the conference report.

The problem has also been recognised in a number of reports produced by sport organisations, including the "Stevens Report" on Premier League Transfers. One of the reasons why the Independent European Sport Review was launched was that it identified "a range of problems — such as doping, corruption, racism, illegal gambling, money-laundering and other activities detrimental to the sport — where only a holistic approach between football and the EU and national authorities will be truly effective.

Corruption in the sport sector may frequently be a reality and, given the sector's high degree of internationalisation, is often likely to have cross-border aspects. Corruption problems which have a European dimension need to be tackled at European level. Corruption is particularly damaging for sport as it raises a credibility problem for sport associations. The sport sector cannot tackle the problem alone. Many major sport organisations have come to realise that they need to work more closely with governmental actors, including law enforcement bodies.

Sport organisations should be asked to provide input on how the fight against corrupt practices is addressed, and on how it could be made more effective.

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The development of public-private partnerships both at national and at European level will be of key importance into fighting against problems such as corruption, money laundering and match-fixing. In sport competitions certain criteria must normally be fulfilled as a condition for sport clubs to participate. One of the aims of such criteria is to prevent clubs from dropping out prematurely and therefore distorting the results of the competition.

These criteria, which are set by sport federations or the organisers of leagues, are most often financial, but they also frequently require compliance with certain standards relating to e. The set of criteria to be fulfilled in order to enter a sport competition is often referred to as a licensing system. Licensing systems exist in different sports e. In its report on the future of professional football in Europe, adopted in March , the European Parliament expresses firm support for the UEFA club licensing system and calls on UEFA to further develop this system in compliance with Community law in order to guarantee financial transparency and proper management.

It also considers that "diverging national legislation and licensing criteria in Europe cause an uneven playing field, economically and legally, and this situation seriously hampers fair sports competition between teams in European leagues, and hence also between national teams". Licensing systems represent a compromise between the traditional openness of competitions in Europe, where access is allegedly based only on sporting merits, and the alternative approach of closed competitions in professional leagues, where the "financial" merit is preponderant. Licensing systems thus represent an evolution of the so-called European approach to sport, where sport merit remains the main criterion for a club to be entitled to participate in often highly professionalized competitions while having equally to fulfil a set of minimum financial and management standards.

This should ultimately improve the financial and social sustainability of clubs. Licensing systems generally aim to ensure that all clubs respect the same basic rules on financial management and transparency, but could also include provisions regarding discrimination, violence, protection of minors and training.

The usefulness of robust licensing systems should be acknowledged for professional clubs at European and national levels. Such systems must be compatible with competition and Internal Market provisions and may not go beyond what is necessary for the pursuit of a legitimate objective relating to the proper organisation and conduct of sport.

The principle of proportionality must be respected. Efforts need to concentrate on the implementation and gradual reinforcement of licensing systems. In the case of football, where a licensing system will soon be compulsory for clubs entering European competitions, action needs to concentrate on promoting and encouraging the use of licensing systems at national level. Issues concerning the relationship between the sport sector and sport media television in particular have become crucial as television coverage is the main source of income for professional sport in Europe.

Conversely, sport media rights are a decisive source of content for many media operators and an important factor driving the development of new platforms for the distribution of audiovisual content. Characteristics of the European sport-related audiovisual sector are its constantly changing parameters and adaptations of the rules to different and new actors. The "Television without Frontiers" Directive[] recognises the specificity of sport in the media context and its importance for television viewers. In Article 3a it provides for a possibility for the Member States to take measures to ensure in respect of events regarded as being of major importance to society sport events being one of the foremost examples , that a significant part of the public is not deprived of the possibility of following such events on free television.

The national lists, once notified to the Commission, are verified for their compatibility with Community law and published in the Official Journal. The publication of the lists in the Official Journal triggers mutual recognition of the national lists by other Member States. The new Article 3j of the future Audiovisual Media Services Directive[] proposes a further element to enhance access of viewers to events of high interest for society including sport events: It can be expected that this provision will not only help to foster the right to information of European citizens, but will also contribute to the trans-frontier circulation of sport programmes between Member States.

The application of EC competition rules has a great impact on relations between media operators and sporting organisations and thus on the financing and organisation of sport. The acquisition and sub-licensing of broadcasting rights and the sale of advertising slots constitute examples of activities of an economic nature covered by the provisions of the EC Treaty. The application of the competition provisions of the EC Treaty to the selling of media rights of sport events takes into account that this area has a number of specific characteristics which notably include the following:.

Sport events are mainly of interest if broadcast live. Viewers will not be satisfied with the broadcast of a sport event other than the one which they were expecting. The challenge for sport is to continue to be a driving force for the development of the media sector while at the same time ensuring that sport competitions are not distorted by an unfair distribution of the revenues from the sale of media rights of these competitions and that the different levels of sport participate in the distribution of the proceeds from professional sport organisations principle of solidarity.

The area of sport media rights is particularly sensitive to antitrust violations. Given that a single seller or a joint selling entity may sell all sport media rights on an exclusive basis for an extended period of time to one single operator in a certain market such as pay-TV , other operators in that market are foreclosed from accessing the product, which may result in competitive harm.

Moreover, operators in neighbouring markets such as internet cannot access the exclusively sold rights.

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This may hamper the development of new services in neighbouring markets. The Commission's consistent policy has been that joint selling constitutes a horizontal restriction of competition under Article 81 1 EC. At the same time, the Commission also acknowledges that joint selling creates certain efficiencies and may, under certain circumstances, fulfil the conditions of Article 81 3 EC and therefore not constitute a violation of Article 81 EC.

The Commission remedied the negative effects of joint selling by requiring, e. Moreover, the duration of rights contracts should not exceed three years and unsold rights would fall back for individual exploitation by the clubs. The abovementioned decisions had the effect of opening up media rights markets to broadcasters and new media service providers by making several different rights packages available while safeguarding the social and cultural aspects of football.

This prevented the concentration of all available rights in the hands of a single media operator and ensured that a maximum amount of rights was made available to sports fans. The question if and under which conditions joint selling can be justified on the basis of Article 81 3 has to be examined in the light of the specific circumstances of each individual case. The Declaration of the Nice European Council of December on the specific characteristics of sport and its social function in Europe mentions point 15 that the sale of television broadcasting rights is one of the greatest sources of income today for certain sports.

The European Council stated that moves to encourage the mutualisation of part of the revenue from such sales, at the appropriate levels, would be beneficial to the principle of solidarity between all levels and areas of sport. The joint selling of media rights for sporting competitions may facilitate the redistribution of revenues based on the principle of mutual support and based on the principle that these revenues should be redistributed to all those involved in sport: However, it is important to note that a system of joint selling does not automatically lead to an equitable redistribution of the revenues.

It is the primary responsibility of the national league associations, sport associations and clubs concerned to agree on a form of redistribution that is in line with the principle of solidarity expressed in the Declaration of the Nice European Council. It should be noted that financial solidarity can also be achieved on the basis of individual selling of sports media rights, provided that it is accompanied by a robust solidarity mechanism.

The "Rules of the Game" conference recognised that the "concept of solidarity is key to the development of sport" and "that fair and effective distribution of financial revenues from the sale of commercially valuable rights related to sport events encourages the development of talent and contributes to balanced and attractive competitions. Get fast, free shipping with Amazon Prime.



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