Editor's note: Marine Montejo is a graduate from the College of
Europe in Bruges and is currently an intern at the ASSER International Sports
Law Centre.
The result of the Brexit referendum on 23
June 2016 took the European Union (almost) by surprise. A lot has been said and
written about the impact of the United Kingdom leaving the EU. As in all other
areas, the British sport sector will also face the effects of the modification
of the relationship between the EU and its (probable) former Member State, the
UK. It is nearly impossible to foresee all consequences as the UK has not even
triggered article 50 TFEU yet to officially start the exit negotiations.
However, as the UK position toward the EU will change in any case, this two-part
blog aims to examine the main practical implications of such an exit for the
UK, but also for the EU, in relation to the actual application of EU law in
sport and the EU sport policy.
Unless stated otherwise, the use of the
terms Brexit in this blog should be understood as a complete exit of the UK
from the European Union. This blog focus in particular on this worst case
scenario and its consequences for UK sport. However, it is highly improbable
that the future Brexit negotiations with the EU will end up without some kind
of special agreement between the two parties the first of which being an EEA
type of agreement with full access to the internal market and applicability of
EU law.
The first part of this blog will examined
the consequences for UK sport in terms of access to the EU internal market and
the applicability of free movement principles. The second part is focused on specific
impacts with regard of others domain of EU law for professional and grassroots
UK sport.
Part 1. EU free movement and the internal market
The EU internal market and its free
movement of people declination was at the centre of the Brexit referendum. The potential consequences for the Premier League and
professional footballers have been commented upon thoroughly elsewhere. Yet, Brexit’s impact is not restricted to British
sport’s leading product, such as the Premier League, nor solely the freedom of
movement provisions.
The controversy: free movement of sportspeople
The right to free movement is one of the
fundamental freedoms guaranteed by the EU to its citizens and it is at the core
of EU treaties. It means that any direct or indirect discrimination based on
nationality is prohibited (article 18 TFEU), leaving EU citizens free to
exercise their right to move freely and reside within the territories of the 28
EU Members States (article 21 TFEU). These rights apply to both professional
and amateur sportspeople, and Brexit will have consequences for them whether
they are British citizens or from other Members States.
First, in relation to professional and
semi-professional sportspeople, when looking for example at consequences of
Brexit on the Premier League, it is the principle of free movement of workers
(article 45 TFEU) that is at stake. It should be noted that Brexit will impact
not only footballers but also all professional athletes that are considered as
“workers” within the meaning of the Treaty. In this context, “workers” means
those who are gainfully employed (as stated in 1976 by the European Court of
Justice - ECJ - in the Donà and Mantero case, 13/76). These athletes might be rugby or
basketball players in a professional clubs or cyclists in a team to give a few
examples. Also, other individuals associated with sportspeople may rely on the
provisions of free movement of workers, such as doctors, physiotherapists, stable
staff, coaches or administrative staff.
Free movement also currently applies to
professional and semi-professional sportspeople that are not “workers”. Freedoms
of establishment (article 49 TFEU) and provision of services (article 56 TFEU) apply
to athletes that are self-employed (for example tennis players, sailors or
horse riders) or to instructors, coaches, or physical trainers. Sports agents
may also rely on both freedoms if they are established in another of the EU’s
Members States and/or if they are providing their services during a player
transfer for example. To illustrate these provisions with genuine practical
cases, you may want to think of a UK tennis player that has established himself
in France for training purposes for a long period, or of Italian professional
horse rider coming to the UK to provide a couple of hours of training for a
master class. These situations are much more common than one believes and
Brexit might have an important impact on significant number of people working
in the sport sector.
At the time of writing it is impossible to
know (or even guess) how events will unfold or what the future position of the
UK toward the EU will be after Brexit negotiations. The impact will have to be
assessed depending on whether and, if so, how the UK will have access to the
internal market. A few UK sports officials have raised their voices to recall,
for example, the strong position of British football in Europe and asked for
exception regimes for their players. Without intending to sound pessimistic, EU
officials have already made it very clear that the UK may not pick and choose
how they access the internal market and it is difficult to see how a “sport
exemption” regarding free movement of athletes may be granted against any other
sectors. A solution might be to implement national UK legislation giving free
access to professional players to the UK labour market. A problem will however
remain regarding free access to the EU market for UK players as, in that case,
there is no obligation for the EU to grant reciprocity. If the professional and
semi-professional sport sector in the UK (and in the EU as well for UK players)
wishes to still be able to recruit athletes that are EU citizens after the exit
as easily as it was before Brexit, it should advocate for an EEA agreement (“EEA type” - which seems inconsistent with the intended aims of
the referendum as, in this situation, the UK would retain its access to the
internal market but would give up its voting rights).
In the worst case scenario of a complete
exit from the EU, is there any good news for UK sport? British sports federations
will be able to implement rules entailing direct discrimination, including
introducing quotas of players based on nationality or favouring their own
athletes which is, for now, completely forbidden under EU law. On the other
hand, the return of visas and work permits between the UK and the EU might
lessen the level of competition in national championships as it will hinder
exchanges of athletes on both sides. It is quite unsure that this is the best
option for British sport. Moreover, one should remember that non-discrimination
is also granted to sportspeople coming from non-EU countries under the terms of
agreements between the EU and third countries (Igor Simutenkov C-265/03). For example, under the terms of the Cotonou
Agreements, it is impossible to impose nationality based quotas for sportsmen
from Africa, the Caribbean and the Pacific Group of States provided the player
entered the territory of one of the Member States legally, which is a strict
condition. This principle implies that a player coming from one of the
countries covered by that agreement is not considered as a “foreign” player if
quotas for such players are in force in that sport (this is the case for Rugby
Union for example). It also means that the UK not only has to renegotiate its
relationship with the EU but with all other non-EU countries that are, for now,
covered by these association or partnership agreements. British sport will need
to be cautious about it.
It should also be noted that Brexit will
lead to the end of the mutual recognition of professional qualifications (see directive 2005/36). This principle applies in the sport sector as well
whenever the possession of a diploma is legally required; Member States cannot
refuse to permit EU citizens from other Member States to participate in a
profession if they hold a recognised qualification from their country for working
in that profession unless there are substantial differences in the level of
qualification or duration of training. This applies to coaches (i.e. ski
instructors) or doctors in the sport sector for example. Another very specific
example is the European professional card (directive 2013/55/EU, applicable from 18 January 2016) that has been
implemented for mountain guides (and physiotherapists) and allows for a simple
and rapid recognition of professional qualifications. Consequences might be
less important where an international sports governing body sets up its own set
of qualifications (think about the UEFA Pro Licence for football coaches).
Free movement provisions likewise apply to
amateur athletes. Based on a combined reading of articles 18, 21 and 165 TFEU,
EU citizens who participate in an amateur sporting activity by using their
right to free movement should not be discriminated on grounds of nationality. It
is, once more, nearly impossible to currently illustrate the impact of Brexit
with tangible facts but it means that free movement of EU citizens who are
amateur athletes will be affected while coming to or from the UK for
competition or training purposes. Furthermore, in terms of injuries or accidents
while training or competing, it should be recalled that Brexit may affect the
European health insurance system. This system gives every EU citizens access to
state-provided healthcare during a stay in any of the EU countries under the
same conditions as people insured in that country.
Finally, it should be mentioned that Brexit
may impact upon the sport sector as it has links to EU citizenship. A complete
Brexit will entail that sports supporters cannot travel as freely between the
UK and the EU as they used to. Again, a return to a strict visa policy seems unlikely
but giving up EU citizenship will have consequences on border and passport
controls and on the organisation of sport events in the UK. The UK and the EU will
also no longer be entitled to the cooperation organised against violence and
hooliganism within the EU (Council Decision 2002/348/JHA, security at international football matches), or, at
least, not in the same terms.
The underlying problem: free movement of goods
Free movement of goods is an essential
element of the single market (articles 30, 34 and 35 TFEU) and it provides for
the prohibition of measures that restrict trade between Member States,
including not only customs duties and quantitative restrictions on imports and
exports but all equivalent measures. Sports clothing and materials are covered
by these provisions. We shall probably enter a period of uncertainty but the
future of trade relations between the UK and the EU will be at the top of the
agenda as soon as the negotiations start. Also, in order to facilitate free
movement, European standards for sporting purposes goods have been set up by
the European Committee for Standardization – n°136 - (full list of standards here). This probably exposes the EU to the bureaucratic
suspicion but these harmonisations are necessary to facilitate trade between
the EU and to ensure a common level of consumer safety. UK/EU negotiations on
Brexit will surely and primarily focus on trade agreements which hopefully will
lower the risk of a return to full quotas and tariffs obligations. Nonetheless,
trade between the UK and the EU will suffer as much in the sport sector as for other
sectors and, again, an EEA type agreement would be welcome for both parties.
One specific category of goods is important
for the sport sector, namely the circulation of civil firearms. EU sport
shooters have access to a European firearms pass under directive 91/477/EEC on the control of the acquisition
and possession of weapons. This means that they
can cross EU internal market borders without prior authorisation in order to
attend competitions and trainings. Brexit will withdraw the possibility of
obtaining that pass which may result in more red tape for sportspeople at the
borders.
Finally, free movement also concerns horses
which under EU law are qualified of “goods intended for sporting purposes”.
This term is used to refer to the set of directives regulating the movement of
and trade in equidae at the EU level. Three different directives are in force
and may be impacted by Brexit. In turn, this will have severe consequences for
the UK as the horse sector, whether for competition or horseracing, is really
strong. Identification requirements – name, genealogy and victories – are established
by EU law (directive 90/427/EEC and regulation 504/2008/EC) under strict animal health conditions and “regional”
quarantine principles in case of disease (directive 2009/156/EEC). Trade of horses and participation in competitions
within the EU is subject to non-discrimination and equal treatment principles
between horses without distinction based on the Member States of origin (directive
90/428/EEC). This principle applies to the rules of competition,
the judging and the prizes awarded for that competition. Some exceptions
regarding specific stud-book, regional or traditional competition are possible.
Finally, it should also be noted that a European Community code relating to veterinary
medicinal products exists to implement the
free movement of veterinary products and to prevent animal doping. Re-entry of registered
horses for racing, competition and cultural events after temporary export to
non-EU countries is also regulated (directive 93/195/EEC). The UK horse sector will have to change its habits (see,
for example the reaction of British horseracing authority to the Brexit vote) after Brexit and the movement of
horses with the EU will be more difficult as a consequence. However, as a
former EU Member State, the UK will certainly negotiate a favourable agreement
with the EU even though obligations concerning the arrival from and return to
their home countries outside the EU of sport horses is already regulated. Additionally,
it will be possible to negotiate bilateral agreements.[1]
The impact of Brexit regarding the rules of
the internal market is important and goes further than just football and the
Premier League. The push for a trade agreement with access to the EU internal
market here has a special importance for UK sport as for the EU. Otherwise, a
complete Brexit will surely end up in a difficult step backward alongside a complete
reorganisation of national rules.
[1] Such an agreement – Tripartite Agreement (TPA) – already exists between France, the United Kingdom
and Ireland.