Sport Governance and European Integration Abstract This paper is concerned with the issue of interaction between Sport governance, performed by private sporting authorities at the national and trans-national levels, and the dynamics of European integration promoted by the Community institutions. The object of the paper is going to be the functioning of the decision-making mechanism in the European Union (EU) in a specific case study, namely the Sport regulation. A special attention is given to the role played by the European Court of Justice (ECJ), in connection with other EU institutions, in the making of the regulatory framework to apply to the Sport field. This paper will try to make a contribution to the discussion, initiated before the Maastricht Treaty, about the likely process of re-politicization of the integration process, which was expected to happen as a consequence of this highly significant step. The period taken in consideration stretches from the Bosman ruling, December 1995, to the Nice Treaty, December 2000. This paper is a working draft comments and suggestions are welcome Please, Do Not Cite Without Permission The Author wishes to thank Ausra Aleliunaite and John Fairhurst for their help in revising this paper. Earlier versions of this paper were presented at the 2001 ECPR/SGEU Ph.D. Summer School "Governance and Legitimacy of the European Union", Brussels and the 2002 Conference "Sporting Cultures", Sheffield, thanks to the generous support of the Institute for European Studies, ULB, Brussels. Introduction At the beginning of 1990s the intellectual debate of the discipline of European Studies was very much focused on the Maastricht Treaty and its possible impulse for the re-politicization of the European integration process. This paper questions whether this expected re-politicization process actually took place. Hence it does that while focusing on the relations between political and juridical spheres of the EU system, which are posited as interdependent spheres1. This equilibrium has been historically unbalanced for several reasons: - firstly, in the early stages of the European integration, the political instances allowed jurists to take the initiative in shaping the institutional system as well as formulating the initial agenda of the integration dynamics2; - secondly, the differential pace between the complex political governance, adapted to the multi-level and pluralist EU, and the monist legal proceedings, even if time-consuming; - thirdly, the accumulation of capital of legitimacy by the ECJ, in respect to other EU institutions, either through authoritative interpretation of the Treaties or through impartial decisions on sensitive questions. Some recent literature puts at stake the issue of a clear-cut autonomy between political and legal spheres of the EU enterprise3. However, the division between legal and political spheres is retained here as a useful analytical tool to investigate the interplay between the ECJ and, the so-called, inter-institutional triangle of the EU (European Parliament-Commission-Council). Taking a view of the ECJ as a strategic actor4, its activities can be analyzed as the product of a strategic design, which integrates the structure of political opportunities and constraints in its calculations, without always acknowledging it. In this perspective, the functional role of the ECJ is very important to understand. The functions performed by the ECJ in the EU political system are resumed by Dehousse as following5: * overall normative shaping of the EU polity, by its interpretative power upon Treaties; * pervasive influence on behavior of institutional and individual actors determining the EU politics, by its structural position ; * specific impact on policies, in the decision-making process, either through the consequences of its activities or its strategic interaction with other EU institutions. This paper is going to focus on the third aspect, showing some empirical evidence of the ECJ as a policy maker. In this conceptual setting, the ECJ is considered as an important player, which has the capacity to affect other institutions of the system as well as to receive feed-back from them. This capacity could be defined as four-folded, following Dehousse analysis6 : * Political innovation * Political pressure * Judicialization of the political process * Juridical legitimization The objective of this paper is to put in perspective these judicial activities of the ECJ in the Sport regulation, to assess its impact, and to evaluate its influence on the supranational integration path. We chose the regulation of Sport as a case study, because of its capacity to show the potential tension between political and juridical spheres. This capacity is due to the specific status the Sport regulation has in the context of Community competencies in the current state of the European integration process. Not included in the legal reach of the EU Treaties, Sport issues are handled indirectly by the ECJ as well as by the Commission, in the perspective of further integration. Nevertheless, this legal/technocratic drive for building the Common market is blocked by the refusal of the Council either to integrate the Sport into the EU competencies or to define a clear Sport exception. Instead, at the 2000 Nice Summit, the half-way solution of the "spécificité sportive" was adopted. Still focusing on the role of the ECJ, the paper is also trying to shed some light on the topic of the expected re-politicization of the integration process after the Maastricht Treaty. Concerning the political leap which should have been generated by the Maastricht Treaty, the findings regarding the Sport case do not provide clear evidence, in spite of a quite strong mobilization of national actors in the EU institutional playground and a certain amount of political activity from the different EU institutions concerning this subject. The political process is stalled in a status quo deadlock, while the ECJ is re-appraising and adapting its activism to the circumstances of a mature integration process. Theoretical-analytical framework To analyze the development of Sport regulation at the EU level, this paper is relying on a Historical Neo-institutionalist framework, in order to explain how this matter was dealt by EU institutions, and especially by the ECJ. Generally speaking, Neo-institutionalism provides an insightful methodology, integrating law and politics in its account, in order to understand the ongoing development of the European integration7. This theoretical framework focuses on the role of institutions, taken in a broad sense as an ensemble of norms, rules and organizations, on the elaboration of the political process. The historical strand of Neo-institutionalist8 provides interesting insights for understanding internal mechanisms of the EU institutional system. In particular, it is developing arguments about the importance of supranational organizations as autonomous political actors,9 the effects of the wider institutional system of the EU (including rules, norms and established bargaining techniques)10, and an emphasis on the time dimension of policy developments11. Accordingly, the main assumption at work in this paper is that the institutional setting of the EU, made up of a complex network of interdependent organizations and substantive and procedural rules, influences heavily the dynamic evolution of the decision-making process and its generated outcomes. In short, institutional design affects political actors' actions, even in unforeseen ways which are not taken into account by their assumed rational strategies. In the case of the EU, the main characteristics of this system, that are taken into account here, are the importance of the acquis communautaire in shaping further development of European integration and the co-operative relationship and balance between supra-national (ECJ and Commission) and inter-governmental (Council) institutions. On the one hand, it is important to recognize the crucial role played by procedural and substantial rules of Communitarian Law in order to understand the structure of legal opportunities and constraints to which the main actors are submitted. The "acquis communautaire" is integrated in our reconstruction, in order to assess its different interpretations by EU instituions concerned with Sport regulation. This paper accounts for the way in which the EC legal body, taken as a complex whole, intervenes into the EU decision making and influences the possible outcomes. In such a way, this paper is trying to reconstruct the interplay between legal and political dimensions of the EU decision-making. The potential tension between them allows room for entrepreneurial activities of EU instituions, in their strategic patterns. On the other hand, the organizational setting on which the processes of institutionalization take place has to be considered. Formal organizations, like the Commission or the ECJ, develop routines and strategies in order to cope with the institutional environment in which they are embedded12. In this regard, the literature pays very much attention to the so-called "inter-institutional triangle" (European Parliament, Commission, Council)13. This triangular relation is considered as the focus of the political decision making structure, characterized by sharing rather than clear-cut division of powers. In such a system, the entanglement and interference between institutions creates a strong interconnection of the decision-making process14. Taking the point of view of the ECJ, the paper aims at analyzing the penetration of the ECJ into this process, and showing its interaction as well as with other institutions' and actors' strategies, in chronological as well as simultaneous ways. In respect to the literature concerned with the functioning of decision making15, the ECJ appears as a relatively monolithical organism, endowed with well specified powers and competencies, but not involved in the decision-making. At the contrary, this paper regards the ECJ as a strategic actor, acting consistently in the EU political system, and endowed with its own proper agenda concerning the integration process. The ECJ preferences and priorities for this process are assumed to be the outcome of internal (between the individuals inside the ECJ: judges + Advocates general) and external deliberation (amongst the EU legal epistemic community16: lawyers + national judges + academics). Nonetheless, given the methodological difficulties to analyze the ECJ preference formation, this process is not taken in consideration here17. For these reasons, this study treats the ECJ as a unitary actor, even if complex, whose strategy and ultimate preferences are detectable by jurisprudential analysis. The following chapter exploits this analytical grid from an empirical point of view, with the specific case study of Sport regulation. The paper aims at verifying this theoretical systematization and provides some remarks on its application. The case study The case study tackled here is concerned with the issue of interaction between Sport governance, performed by private sporting authorities at the national and trans-national level, and the dynamics of European integration promoted by the Community institutions, according to the provisions of Treaties. This interaction is reconstructed here in order to show the internal tensions and external conflicts which characterized the uneven evolution of Sport regulation at the EU level. In the first part (I), the paper overviews the development of interaction between the EU institutions and private Sport bodies, regarding Sport labour restrictions. The overall context of the EU regulation of Sport is analysed through both its political (Ia) and legal (Ib) aspects. In its second part (II), in the context previously defined, the paper deals with the range of problems raised by the Bosman ruling, from a legal (IIa) and political (IIb) point of view. In its third part (III), the paper gives an account of the subsequent developments until the current stage, with an analysis of the last cases (IIIa) brought before the ECJ and of their political consequences (IIIb), before to assess the implications for the future. The twists of the Sport saga18, to which the famous Bosman case relates, are due, on the one hand, to the contradictions and clashes of the EU institutions' attitudes towards Sport and, on the other hand, to the intricacies and ambiguities of Community Law. Concerning the first aspect, the divergent approaches taken by different EU institutions towards Sport regulation had put inter-institutional interaction regarding this issue into growing strain. The contradictions were revealed by the Bosman ruling, in which the ECJ ruled out labour discrimination practiced by football organizations, vis-à-vis professional sportsmen, which previously received the avail of the Commission and the Council of the EU. This was a signal of deterioration of the working relationship between these institutions, as far as Sport was concerned. Regarding the second aspect, namely the legal complexity of Sport issues at the EU level, one important dimension to be mentioned is the ambivalence contained in the Treaties concerning labour restrictions undertaken by private parties in spite of the Community law principles. This ambivalence is due to the overlap between, and discrepancies within, Arts 39, 81 and 82 EC Treaty. Another important dimension of this legal complexity is the nature and diversity of the means of activation on the part of the institutions in charge of the enforcement of Community Law. This factor contributed to accentuating the different political and legal approaches taken by the EU institutions with regard to the regulation of Sport according to Community Law principles. Part I) Why is Sport regulation at the EU level so difficult? Since the middle of 1980s, following the adoption of the Single European Act (SEA), the EU has gradually become the political framework for European integration. The transfer of the acquis communautaire of the European Economic Community (EEC), adapted to an economic background, to this new political framework found in Sport perhaps its furthest outreach, touching onto symbolic fields where emotive and emotional factors are in play. This development has to be considered in the light of the expansionary logics of European integration, but also that of the simultaneous evolution of professional Sport as a leisure industry. In fact, since the 1970s, the increase in commercial turnover and sponsoring of the professional branches of football, basketball and other disciplines added a strong economic dimension to these sporting activities. This evolution prompted several rulings of the ECJ19, which was called upon to rule on this subject by national courts through the procedure of former Art 177 (now Art 234 EC Treaty). Mainly in this way, the expansive logics of the European integration process included Sport, typically a cultural phenomenon, under the influence of Community Law, basically an economic regulative mechanism. According to the ECJ's interpretation, the EEC and its institutions have no direct competencies in the field of Sport, due to the absence of any reference to this subject in the Treaties. Nonetheless, Sport may enter into the sphere of its activities, if it considered to have an economic relevance. The approach of the ECJ was intended to control and frame Sport practices under the Community's law on free movement and competition. However, the language spoken and approach practiced by the EEC and its law are not totally adequate to deal with Sport. In fact, EEC enterprise has been built around the pursuit of market integration and regulation. Regarding other Community institutions, especially the Commission, Sport matters were treated as a politically sensitive issue. Substantially, the Council and Commission peferred not to intervene in the Sport field, favouring a limited application of Community Law to this sector. Consequently, the policy-field of Sport illustrates a case where it is possible to observe an institutional rift between the Commission and the European Council, on the one hand, and the ECJ, on the other hand, concerning if and how to regulate a field where there are no legal bases in the EC Treaty for direct action at the EU level. a) The political aspects Within this context, the interaction between Sport self-regulation and EU law is marked by both cooperative and confrontational aspects. The historical development of the interaction between Sport governance and European integration indicates that the ECJ was more prone to conflict than the Commission, imposing the full impact of Community law onto Sport authorities. Since the beginning of the 1980s, the Commission and the Council preferred to adopt a benevolent neglect towards Sport issues, subsidizing minor Sport events and accepting major Sport requests. This attitude was outlined in the Adonnino report, presented to the European Council in 1985. Moreover, from the point of view of application of Community Law, under the Delors Commission, the sporting sectors enjoyed a special treatment concerning the implementation of the Common Market. In relation to Sport practices, the Commission adopted a soft approach, seeking to persuade Sport authorities, particularly football bodies, to comply with Community Law. This strategy was not successful, which forced the Commission to use less conciliatory means in the form of a full investigation, the aim of which was to press the football authorities to negotiate a compromise. Afflicted by scarce resources, the Commission preferred an informal settlement, in order to save time and money, and, as far as possible, to preserve itself from pressures and interventions from Member States. In 1991, the Vice-President of the Commission, Mr. Martin Bangemann, declared that a so-called 'gentlemen's agreement' had been reached with football governing bodies. This agreement, referred to as the '3+2' rule20, confirmed the practice of national discrimination in the field composition of professional teams, this practice having already been declared incompatible with Community Law by the ECJ21. In such a way, UEFA minimized the impact of Community Law on professional clubs, by increasing slightly, from 3 to 5, the number of foreign players which would be allowed to be recruited. The football governing bodies justified this exemption by stressing the specialty and exceptionality of Sport self-regulation. This position was mainly supported by the de facto autonomy and self-regulation allowed to Sport organizations in Western Europe, more or less recognized in national legal orders22 . However, other EU institutions were not unanimous on this attitude towards Sport. The European Parliament vocally requested the Commission, before and after this 'gentlemen's agreement', to take the necessary steps to ensure that Sport economic activities complied with Community Law, but its requests were downplayed or ignored, due to the Parliament's lack of competence to deal with the matter23. In addition to this, the ECJ never treated Sport as a special case. The Court was not prepared to place the Sport industry, and in particular the economically relevant football industry, beyond its own jurisdiction. With the 1995 Bosman ruling, the ECJ put in doubt the self-affirmed independence and autonomy of Sport bodies, regarding compliance with the principles of Community Law. The issue was more explosive than ever, because at the moment of the Bosman ruling football organizations were clearly infringing upon more than one area of the EC Treaty, in particular discriminatory rules on the ground of nationality and obstructive practices against the free movement of professional athletes24. Consequently, the Court was involved in the evaluation of the regulatory practices of professional football, which had been authorized by the Commission for political reasons. b) The legal aspects This section deals with the legal intricacies of the regulation of Sport governance at the EU level, with respect to labour restrictions of professional sportsmen who are EU citizens. The problem is two-fold. On the one hand, restrictive and discriminatory labour practices in the private sector are subject to both Art 39 EC and Arts 81/82 EC. Application of these articles requires different legal considerations to be taken into account and results in several points of divergence, which creates a problem of coherence which goes to the very heart of the Treaty. On the other hand, the means of enforcement are different. In fact, these labour restrictions are susceptible to a dual enforcement, either by the Commission, in its capacity as the 'guardian of the Treaties', or by private parties before national courts, relying upon the direct horizontal effect of, for example, Arts 39, 81 and 82 EC. Concerning the first problem, the overlap and discrepancies between Art 39 EC and Arts 81-82 EC, make this issue complex25. In fact, concerning professional Sport, the legal treatment of discrimination on national grounds and obstruction to freedom of movement for workers appear more lenient under competition law than under Art 39 and its related secondary legislation. In respect of free movement, such practices of discrimination and obstruction are prohibited without exception in professional Sport, as it was declared in Dona case26. Conversely, under competition law, however, Sport labour regulations, and especially football league restrictive practices, have the opportunity to be awarded a waiver, in consideration of the particularities of this economic activity. Regarding the second problem, the legal complexities which emerge from the EC Treaty itself have been accentuated by the different means of enforcement which are available to the Commission and the ECJ to address the potential tension which exists between these provisions. In fact, concerning enforcement, there is a remarkable difference between Art 39 and Arts 81/82 from the point of view of the ECJ, in the exercise of its preliminary-ruling jurisdiction (under Art 234 EC), and that of the Commission, in its administrative capacity as 'guardian of the Treaties' (under Art 226 EC). On the Commission's side, there are no legal means by which it is possible to enforce Art 39 directly against private parties. An indirect way is to use infringement proceedings against Member States, based on Art 226 EC, requiring them to legislate against sporting bodies which breach the Treaty. By adopting this approach, the Commission would target indirectly private Sport organizations. In such a scenario, a Member State could be made liable for such activities carried out within its territory, with its more or less tacit assent, by private parties which have adopted measures which are in conflict with Community Law. But if such an action is theoretically possible, it is not very feasible. In practical terms, it is cumbersome and time-consuming, with uncertain results at the end of the process. From the point of view of the Commission, however, direct proceedings against the Sport organizations are possible in relation to competition law, which confers to its DG Competition powers of investigation and enforcement to dispose of these cases. If the Commission takes the view that football bodies are acting in breach of EU competition rules, the DG has power to issue a decision requiring termination of the anti-competitive practices, and, in addition to this, it may decide to impose a fine. However, under the current rules, the use of these powers of investigation and enforcement under competition law is not transparent for private parties who have a vested interest in these proceedings. Once the Commission is informed of possible infringements of Arts 81 and/or 82, by "natural or legal persons who claim a legitimate interest"27, the complainant is not entitled to a final decision. This means that if the Commission decides not to pursue the infringement, for reasons of political considerations or resource shortcomings, the complainant has no other means for redress, except to pursue the matter before a national court. In such an eventuality, private parties may invoke all directly effective provisions of the Treaty in order to challenge the Sport regulations which they consider infringe Community Law; Arts 39, 81 and 82 are directly effective, both vertically and horizontally. Once proceedings have been issued before a national court, the national court "may" (and sometimes "must") refer the case to the ECJ for guidance under Art 234 EC. Even though it is the subject to the national court's filter, this procedure provides access to the ECJ for individuals seeking to challenge Community Law infringements. With respect to competition law, whereas the DG Competition has an expedient use of such "plaintes", the ECJ, because of its role and structure, is called to deliver an answer to all claims about justiciables' rights. Consequently, the pressure exerted over the ECJ by individuals or interest groups is more effective, if carried consistently in line with its jurisprudential principles and doctrine. Part II) Community Sport Politics after 'Bosman' To take a specific case in point, Mr. Bosman, a professional football player unsatisfied with the treatment taken by the Commission with regard to his "plaintes" under Arts 81/82 concerning Sport transfer rules, took the issue before a Belgian court, invoking additionally Art 39. In such circumstances, indirect access to the ECJ was used to circumvent the quasi-judicial path of the Commission based on EU competition rules. However, in reason of the already stated overlap between Art 39 and Arts 81 and/or 82, this action in front of the national court raised the issue of the implications of Treaty intricacies concerning Sport labour restrictions. a) The legal aspects The ECJ was confronted with the questions raised by the Cour d'Appel, Liège: "Are Articles 39, 81 and 82 of the Treaty of Rome of 27 March 1957 to be interpreted as: a. prohibiting a football club from requiring and receiving payment of a sum of money upon the engagement of one of its players who has come to the end of his contract by a new employing club? b. prohibiting the national and international sporting associations or federations from including in their respective regulations provisions restricting access of foreign players from the European Community to the competitions which they organise?"28. Focusing on these questions, the principal aspects of the ruling were both procedural and substantive. Both were dealt with consistently by the ECJ, in accordance with its previous rulings on this subject, and in line with its mainstream jurisprudence29. On the one hand, concerning procedural objections raised during the process, the ECJ confirmed that Sport regulations were subject to Community Law. Firstly, regarding the objectives of the Community, Sport was inscribed within the scope of application of Community Law insofar as it constitutes an economic activity, especially when it provides a gainful employment or a remunerated service, as is the case of professional or semi-professional athletes. Secondly, the private parties involved in Sport disputes were considered able to invoke Community Law principles, if they have direct horizontal effect, which is the case of Art 39, concerning freedom of movement for workers, and Arts 81 and 82, regarding fair competition. On the other hand, considering the substantial aspects of the ruling, the ECJ decided to apply only Art 39 to the issue under scrutiny (the transfer rules and the principle of nationality discrimination on the field) without taking into account competition law, as requested by Mr. Bosman and as suggested by the Advocate General in his opinion. The Court ignored the overlap, giving priority to the Art 39, which is one of the fundamental freedoms guaranteed by the EC Treaty. The Court recognized that the reasons for the Sport associations' transfer rules were legitimate, but it found that the transfer rules were not a proportionate response. More specifically, Art 39 EC, which guarantees freedom of movement for workers inside the EU, precludes the use of transfer rules laid down by sporting associations for professional footballers, who are nationals of one Member State, on the expiry of his contract. According to the ECJ, such rules are likely to restrict the post-contractual freedom of movement of players who wish to pursue their activities30. The ECJ also found, applying Art 39 in combination with Art 43 EC, that the rule laid down by Sport associations under which football clubs may field only a limited number of professional players who are nationals of another Member State (namely the '3+2' rule) was a case of discrimination based on nationality, not justified by "pressing reasons of public interest". The broad line of the ECJ's reasoning was two-folded. Firstly, it is not possible to allow infringements to the principles of the EC Treaty, without imperative reasons which can be justified by the general interest. Secondly, even in this case, the measures taken to attain the legitimate objectives must be proportionate. Concerning the first point, because of football's social dimension, the ECJ recognized the legitimacy of a loose application of Community principles to Sport' organizational rules. Moreover, even recognizing the basically non-economic nature of Sport activities, the Court re-affirmed its competency to rule on conformity with Community Law, of professional and semi-professional sporting activities. Regarding second point, the Court acquiesced in the legitimacy of rules or practices justified on non-economic grounds31:"maintaining a financial and competitive balance between clubs and supporting the search for talent and training of young players"32; but it stated that the mechanisms adopted by the football governing bodies, to pursue these legitimate aims, were not proportionate because the same results could be achieved by adopting measures which had less of an impact upon the free movement of workers33. Considered as a whole, the Bosman ruling did not ignore unilaterally the social significance of Sport or condemn irrevocably its organizational arrangements34. Nonetheless, it undermined the self-assurance and privileges of the football establishment and casted more than a doubt about the legal autonomy of Sport with regard to European integration35. It has to be said that the main issue of legal complexity at stake (i.e. under which Treaty provisions should action by private parties primarily be considered?) was not resolved by the ECJ. In the Bosman ruling, Sport regulations were condemned under Art 39 as the only basis of the judgment and the ECJ did not pronounce itself on the possible application of Arts 81 and/or 82. As a consequence, the Commission was left to pronounce itself on the competition field, but this case was a clear rebuff to its prior conciliatory attitude towards Sport organizations. b) The political aspects Notwithstanding the legal long-term effects of this ruling, the immediate political consequence of the ruling was the radicalization of the relationship between Sport establishments and the European institutions. Legally bound by the ECJ's interpretation of the Treaty, the Commission was called upon to act against the regulations adopted by both FIFA and UEFA. Disavowing its own "gentlemen's agreement", which had been explicitly criticized in the Opinion of the Advocate General and overturned by the ECJ, in 1996 the Commission pressed the football authorities to comply with the ECJ's judgment. The push given by the ECJ and the Commission towards the deregulation of the players' market was met by inertia on the part of the football authorities, which refused to adopt a new regulation which would comply with the criteria laid down by the ECJ; it simply eliminated all existing ones. As a result, the intra-EU mobility of football players increased and, at the same time, so did the contractual power of the professional players vis-à-vis the club, signalled by the rise of the number of transfers and salary levels. This judicial intervention into the Sport field provoked hostile mobilization of mass media around this legal outcome and aroused negative reactions of public opinion, which prompted a response on the part of the EU political institutions. In their reactions, the European Parliament and Council proved to be receptive to the concerns of public opinion. The European Parliament had clearly a more supra-nationalist stance than the Council. The Doris Pack report, issued on June 13 1997, represented a first reaction to the consequences of the Bosman ruling. The report concentrated its attention on the Commission and the Council. In fact, the European Parliament asked for the creation of a Sport Task Force, convening a formal Sport Council, and adding an article dedicated to Sport within the EC Treaty, at the subsequent 1997 intergovernmental conference which was to be held in Amsterdam36. The European Council was also called upon to take a position on this issue by Sport associations and national politicians, such as the Belgian Prime Minister37, who stated that he regretted the ECJ's judgment38. During the preparations for the 1997 intergovernmental conference, the inclusion of a 'Sport exemption' in the Treaty (under the form of an addition to the Art 151, para 4 EC, relating to culture) was discussed and rumours of a political blunt reversal of the ECJ judgment were widespread. The outcome was more modest and a declaration regarding Sport was annexed to the conclusions of the Amsterdam Summit. It was probably more difficult to secure unanimity among the Member States for a bolder move in a matter related to the freedom of movement of workers. The governments' representatives, however, felt the need to intervene on this issue, stressing the social importance of sporting activities and inviting the Commission to associate the Sport governing bodies to the activities concerning Sport governance, but nothing more39. It is noteworthy to that the European Parliament and Council initiatives were not directly chalenging the ECJ, but addressed principally the Commission and its application of Community Law to Sport issues. Following the Amsterdam Declaration on Sport, the Commission took in charge the task of coordinating EU policies affecting Sport and defining the main principles of EU politics on this topic, because of the double impulse of the Council and the European Parliament. In response to the European Parliament's request for a Green Paper on Sport, a Working Paper was produced in 1998, which constituted the first attempt to sketch a panorama of the Commission's activities in this field40 and the first step for coordination41. Moreover, under a precise point of the conclusions of the Vienna European Council, the Sport Unit was required to submit a report on the state of Sport in the Union, from the perspective of preserving the existing Sport structures and maintaining the social function of Sport42. This initiative followed soon after the problems which had troubled European Sport in summer of 1998: the doping scandal in the Tour de France; the threat to UEFA's monopoly of European football competitions; and discussions about the intertwining of property between football clubs and television companies. These were the main topics on which attention was focused. Governments were keen to use the European forum to curb possible destabilization of national and European Sport organizations. The Commission activities were finalized in the so-called Helsinki Report, presented to the European Council in December 199943. Because of the lack of direct EU competencies in Sport, the partnership with national governments and Sport associations was considered as the way forward to provide a comprehensive answer to the changing environment of Sport activities. Within such a framework, the EU envisaged a swift intervention which would seek to maintain the status-quo of the established system44. Part III) Alternative Pathways By reason of the nature and timing of the ECJ's preliminary ruling procedure, under the former Art 177 EC (now Art 234 EC), the continuation of legal developments within the Sport field at first sight seemed to disappear. However, alongside the steps taken by the Commission and Council in favour of the existing Sport structures, the relationship between Sport bodies and the EU were altered profoundly by the enhanced presence of Community Law, which loomed large over internal sporting organizations. In fact, traditionally, the grievances and disputes between the different components of Sport establishments were resolved internally, even if it was possible to discern a trend toward judicialization of these disputes45. However, with respect to disputes concerning Community Law, the resort to external resolution, especially to judicial and administrative bodies, escalated. The reasons for this escalation were ambivalent. On the one hand, the Bosman ruling set an example for sportsmen and sportswomen willing to challenge sporting organizations in the EU's single market. On the other hand, specialized lawyers46 were actively involved in trying to fill the gaps in the application of the legal doctrine to Sport issues47. Particularly promising for litigants was the silence of the ECJ on the application of Arts 81 and/or 82 EC, the ECJ preferring to give priority to the fundamental freedoms guaranteed by the EC Treaty. Two cases were subsequently referred to the ECJ in 1996 by Belgian courts, which demonstrated their willingness to defer to the ECJ questions concerning Sport issues. The ECJ was thus provided with the opportunity to develop its jurisprudential doctrine on Sport issues, in the two cases pursued by Miss Deliège and Mr. Lehtonen, both sportspeople, who sought to challenge other sporting regulations which, it was argued, were in conflict with Community Law48. Aware of the possible consequences of a ruling analogue to Bosman, a majority of Member States entered the judicial debate, arguing against the claimants' case and supporting that of the Sport associations49. In the meantime, a third case concerning Sport was referred to the ECJ in 1998. Mr. Balog, a Czech professional footballer employed in Belgium, tried to extend the reasoning of Bosman (which concerns only EU-citizen players) to the nationals of countries which had signed Partnership Agreements with the EU, such as Turkey, Morocco and the Czech Republic. a) The legal cases The Deliège case sought to enlarge, in depth as well as in scope, the effects of the Bosman ruling, extending the fundamental freedoms guaranteed by the EC Treaty to semi-professional disciplines, like judo50. Invoking the former Art 59 EC (freedom to provide services) and Arts 81 and 82 EC (competition rules), this case challenged the rules laid down by the Belgian judo association to define the composition of the national team for the 1996 Olympic Games in Atlanta, USA. Ms Deliège was a judoka of Belgian nationality, who had achieved excellent results at the international stage. She maintained that the Belgian Judo Federation had improperly frustrated her career development. In March 1995, Ms Deliège was informed that she was not pre-selected for the Atlanta Olympics and, as a consequence, she was prevented from taking part in an international tournament. Two other athletes were selected for the Belgian Olympic team who, according to Ms Deliège, did not obtain noteworthy achievements. On 20 January 1996 Ms Deliège asked the Tribunal de Première Instance, Namur, to block the decision of the Belgian Judo Federation. In those circumstances, the national court referred the following question to the ECJ for a preliminary ruling: "Whether or not it is contrary to the Treaty of Rome, in particular Articles 59, 81 and 82 of the Treaty, to require professional or semi-professional athletes or persons aspiring to professional or semi-professional activity to be authorised by their federation in order to be able to compete in an international competition which does not involve national teams competing against each other"51. The ECJ decided the Deliège case only with reference to the former Art 59, i.e. the freedom to provide services. Under this provision, Ms Deliège was defined as a sportswoman practicing Sport on semi-professional basis, "amateur de haut niveau", providing Sport services, and remunerated on a multilateral basis52. In fact, Ms Deliège's status and her entitlement to use Art 59 was subject to disagreement between the parties. Deliège's argument was that she was practicing judo on a professional basis, or at least semi-professionally. The Federations contended that judo is an amateur Sport within Europe, and in Belgium in particular. The ECJ, following the suggestion of the Advocate-General53, rejected the claimant's claims, and confirmed the discretional nature of the rules defined by national Sport associations to form national teams; the main reason for the ECJ's decision being the non-economic nature of the service being provided. On the one hand, the Deliège ruling embodied the shift of the ECJ from a confrontational to a more compromising stance towards Sport authorities54. The ruling of the ECJ confirmed its power to intervene in sporting issues, as long as they have an economic dimension encroaching on the regulation of the single market55, controlling the respect of Community Law principles and avoiding infringement of the "acquis communautaire"56. On the other hand, this result has to be considered alongside the other case concerning Sport, in order to appreciate the room for manoeuvre the ECJ has provided to Sport organizations. In fact, in the Lehtonen ruling of 2001, the ECJ stated that Sport associations' regulations, which concern the organization of Sport competitions, are subject to the control of national courts, if it is considered necessary. In the Lehtonen case, the claimant argued that the Bosman principle relating to transfer fees on the expiry of contract should be applied to the rules setting fixed periods for the transfer of basketball players in Belgium, relying on Arts 6 EC (discrimination on grounds of nationality), 39 EC (free movement of workers), and 81 and 82 EC (competition). Mr Lehtonen was a basketball player of Finnish nationality. During the 1995/1996 season he played in a team which took part in the Finnish championship, and after the end of the Finnish season, he was engaged by a Belgian team to take part in the final stage of the Belgian championship. The Belgian Basketball Federation informed the team that, if FIBA did not issue the licence of transfer because of the expired transfer period, the club might be penalised and that if it fielded Mr Lehtonen it would do so at its own risk. Despite this warning, Mr Lehtonen was fielded in several matches. Consequently, the club was penalised by the award of the match to the other club, each time it included Mr Lehtonen on the team sheet, and was threatened with being relegated to the lower division if it was repeated. Subsequently, the Belgian team decided not to field Mr Lehtonen. At the end of the championship, Mr. Lehtonen and his Belgian club brought legal proceedings against the Belgian Basketball Federation, concerning the right of Mr. Lehtonen, as a professional player, to be fielded in matches in the first division of the Belgian national basketball championship. The Tribunal de Première Instance in Brussels referred the following question to the ECJ for a preliminary ruling: "Are the rules of a Sport federation which prohibit a club from fielding a player in the competition for the first time if he has been engaged after a specified date, contrary to the Treaty of Rome (in particular Articles 6, 39, 81 and 82), in the case of a professional player who is a national of a Member State of the European Union, notwithstanding the sporting reasons put forward by the federations to justify those rules, namely the need to prevent distortion of the competitions?"57. The ECJ acknowledged that the definition of a transfer period was justified in the light of a legitimate non-economic goal, which is to assure the organization of fair competition58. Nevertheless, the ECJ reminded the national court of its obligation to determine whether the restriction was a proportionate response to the goal59. This was a signal to Sport authorities that their autonomy is not absolute, but that their regulations, having a Community dimension, will need to satisfy the tests of necessity and proportionality60. b) The political aftermath In the two cases considered, the ECJ carried out a subtle operation61. It reaffirmed the principles of Community Law, but pragmatically took into account the political environment. In other words, the 'spécificité sportive', as applied by the ECJ, reaffirmed the supremacy of Community Law, but gave consideration to wider political issues when determining the cases, leaving the established structures and functioning mechanisms of the sporting organizations more or less untouched. This approach was significant from both legal and political points of view. From a legal point of view, the two judgments presented a common approach towards sporting issues, especially because they were delivered, one after the other, in a short period of time and had been written by the same judge-rapporteur. In both cases, the ECJ reaffirmed the principles of Community Law and the competences of its own jurisdiction but, at the same time, pragmatically took into account the specific aspects of Sport. The outcome was not a reversal of principles enunciated in the Bosman ruling and their articulation, but rather a more conciliatory appreciation of the public and social role performed by Sport62. On the one hand, there was a substantial confirmation of the 'acquis communautaire' and its application to Sport. This was evidenced by the ECJ's appreciation of, respectively, what constitutes an economic activity; what constitutes an admissible and proportional deviation from principles of Community Law; and which activities of Sport associations are not inherently within the scope of the EC Treaty. On the other hand, on the substantive matters raised by these two cases, the ECJ took a more conciliatory stance, more in line with the views expressed by the Helsinki report about Sport self-regulation, recognizing explicitly the role of Sport associations in the functional organization of different disciplines63. From the political point of view, the approach of the ECJ had the merit of acknowledging the positions taken by the European Council in this field64. However, the aftermath of the settlement of these two cases was characterized by three major problems, all of them related to the ECJ interpretation of Community Law. Firstly, the pending Balog case was a further menace to the already shattered transfers system of UEFA, extending a Bosman-inspired treatment of professional footballers to the quasi-totality of players of the UEFA member federations. Secondly, the ECJ rulings on Deliège and Lehtonen cases, delivered in April 2000, were an important contribution to the EU political debate which was developing about the regulation of Sport issues, in preparation for the December 2000 Intergovernmental Conference which was being held in Nice. Finally, the questions left unresolved by the rulings of the ECJ was also at the centre of attention. In fact, the ECJ ignored the requests from the claimants to rule on the issue of the compatibility of Sport regulations with competition law65. Concerning the first point, the forecasted preliminary ruling of the ECJ on the case Balog was no less significant than Bosman for football federations. In fact, this judgment was expected to likely extend to all professional players from associated countries with EU (e.g. Czech Republic, Morocco, Turkey) the same rights accorded by the Bosman ruling to football players who were EU citizens. One much awaited event was the Opinion of the Advocate General, expected to be released at the end of March, 2001.66 Regarding the second point, during the political preparations for the Nice Intergovernmental Conference (December 2000), the Commission elaborated on the principle of "spécifité sportive". In fact, the ECJ introduced authoritatively this concept in the debate about the place of Sport within the EU, in order to mediate between two positions: on one side, the requirement that Sport is subject to Community Law principles, and on the other, its complete exemption. The Commissioner Mario Monti, just after the delivery of the ECJ's judgment in April 200067, maintained that it was not possible to include a Sport exemption into the EC Treaty. This remark was clearly addressed against the requests made by national and international Sport associations at the same moment68. After the summer, while the French presidency pursued its agenda, including Sport69, the Commission made again the same point at the European Sport Forum70. Finally, regarding the third point, the application of competition law to Sport, it was an issue which had agitated the relationship between Sport associations and the Commission since the Bosman ruling. In spite of the requests from national courts, the ECJ had avoided the use of competition law to dispose of the Sport case, thus avoiding the complexity of applying competition law to the Sport system. The ECJ placed overall responsibility for such action onto the shoulders of the Commission. Consequently, after the rulings of the ECJ, competition law became the principal battleground for the future application of Community law to Sport, especially from the perspective of the Commission. However, the form and the content of the ECJ's jurisprudence were crucial to shape the further interventions of the Commission, which could hardly restrain from opposing restrictions on labour mobility. The Commission was unlikely to make concessions especially on certain aspects of the acquis communautaire, like freedom of movement, which had been declared a fundamental by the ECJ. However, the malleability and flexibility of Competition Law provides the Community with a certain degree of discretion. In fact, the capacity to concede a waiver or an exemption, under the exclusive preserve of the DG Competition, proved to be the most important element in its strategy toward Sport, as outlined by the Helsinki Report. This fact empowered the Commission to select and differentiate between Sport practices and regulations in their compatibility with competition law, according to the specificities of Sport. Nevertheless, the divide between the social and cultural functions and economic interests performed by the Sport proved to be elusive, as demonstrated by the transfer negotiations between Commission and FIFA. These negotiations lasted from September 2000 until the beginning of March 2001. In summer 2000, following shortly after the end of the football players market, which had been inflated by the European Championship, the Commission turned its attention to the transfer fee system, notifying UEFA and FIFA of the necessity to change its rules. In its view, the transfer regulations restrained freedom of movement and breached competition law71. The football associations were required to shape a new transfer system, which should take into account the interests of professional players and clubs. This ultimatum was reinforced by the threat of financial fines, coupled by a deadline. The different aspects of this situation were tackled at the European Council level. A comprehensive compromise was elaborated in the Declaration on Sport annexed to the Nice Treaty, around the principle of the 'spécificité' of Sport72. On the one hand, this declaration constituted a compromise, in the middle of the difficult final conclusion of the intergovernmental conference, among the member states on the Sport issue, which revealed to be largely in favour of football bodies. In fact, this declaration, encouraged by the German and British governments, supported the Sport federations' autonomy and traditional privileges against the Commission stance. On the other hand, the same declaration also promoted a compromise concerning transfer negotiations73, softening the Commission's negotiating position towards the football governing bodies74. Informal pressures of German and English governments75, as well as the French and Swedish EU presidencies76, contributed decisively to the concrete evolution of these negotiations, which fell short of satisfying the involved football players' trade unions77. Moreover, the result of the transfer negotiation and the pressures of UEFA were crucial to induce Mr. Balog and his Belgian club to find a compromise, negotiated in Switzerland, before the presentation of the Opinion of Advocate-General78. This outcome prevented the preliminary ruling of the ECJ on football transfer concerning nationals of other countries in the EU, which probably would have followed the guidelines of Bosman ruling79. The Nice Declaration on Sport, at the crossroads of previously discussed developments, leaned towards an 'assisted' sporting self-regulation scenario. In such a perspective, Sport governing bodies are submitted to external control of the public authorities in exchange of the recognition of Sport arrangements, which are supposedly conducted in the public interest. Consequently, the Sport own 'constitutionalism' would be recognized, but its self-regulation submitted to external scrutiny from public authorities, national and communitarian. This scenario is shifting attention to the necessity of effective control of Sport activities and it is posing the question about an independent check by ad hoc external regulators and/or public bodies independent from private interests involved in Sport regulation. Currently, the control of Sport practices at the EU level is conducted by the Commission, through its monitoring system of compliance, and by the ECJ, through the preliminary references from national courts. The Commission, especially, has taken a slippery slope, which has conducted it to assume, half-heartily, the function of an external 'regulator' of Sport self-governance. However, the Commission is a regulator of Sport only concerning the control of conformity of Sport self-regulation with EC Law. As it has been maintained elsewhere80, in a larger perspective, the EC's institutions have placed themselves in a position which is susceptible to shape the practical scope of decision-making allowed to Sport. The EC law is providing a permissive framework, within which the Sport actors have considerable autonomy to make any relevant choice about the rules of the game. The objection made by Sport governing bodies against such a perspective is that Sport self-regulation is an autonomous system, which has to be protected by interference from state or supra-state entities, like EC, in order to function correctly. Moreover, the football governing bodies worked hard in order to avoid the possibility that the Commission and the ECJ would apply, in their own competencies, Community Law to football. In accordance with such a position, a point which was often made by Sport officials during the transfer negotiations, is that the influence of Community Law and interventions of EU institutions on Sport matters are interferences in an already self-regulated field. In their view, the special features of the Sport activities are misunderstood by the ECJ and the European Commission and their decisions are both hindering the proper performance by the sporting movement of its social and educational functions and promoting the disruption of the Sport system. However, the positive depiction offered by Sport bodies of Sport governance as a self-sufficient system adapted to the special features of Sport, appeared to Community officials' eyes more or less the confirmation of the "above the law" attitude of the Sport organizations towards the Common Market81. And unfortunately for Sport governing bodies, they had to fight the battle on the EC system's own terms, which conceive the decisions of sporting associations as private acts, subordinate to Communitarian law. In such a context, the argument advanced about the specialty of Sport has never been sufficient in order to make EC institutions treat Sport regulations as 'law' in its own. Firstly, the stated approach of the Commission is to avoid and to prevent a complete transformation of the federative configuration of the Sport system, especially in the more commercialized branches, as football. This position is clear since its Helsinki Report, aimed to preserve the traditional Sports structure and federation functions. The reasons for such a position are principally the conservative approach dictated by the member States and the Commission's hostility to increase its workload with peripheral tasks, outside its core business. In such a scenario, Sports federations have central responsibilities, as they are supposed to already have a good knowledge of their specific regulative business and, moreover, possess the capabilities to make their decisions implemented and respected. Secondly, the Sport mechanisms of self-regulation are, to this day, not particularly known to being democratic and assuring a separation of powers. Moreover, Sport structures have failed, until this moment, to implement principles of transparency and accountability in their functioning, as well as principles of fairness and due process in their disciplinary procedures. Paradoxically the recognition of EU institutions of their regulative function is likely not to pressure Sport governing bodies to implement 'rule of law' and principles of 'good governance', so as they are conceived at the EU level. Theoretical overview of the case study The Sport regulation, as briefly exposed, is quite a special case from a legal point of view, in reason of the not so clear status of Sport in European integration. Consequently, the Sport regulation in the EU has developed in a discontinuous manner, in consequence of visible, punctual emergencies: the Bosman affaire or the transfer boom. The reactive nature of Sport regulation at the EU level was, in my view, the result of the lack of political will to intervene; unless in the case of events and developments that could no longer be ignored by the EU institutions. Nonetheless, according to Historical Neo-institutionalism, the Sport incremental and erratic regulation had an underlying logic, because of the organizational characteristics as well as of the larger institutional configuration of the EU decision-making process. On the one hand, the institutional dimension has its relevance while explaining the underlying logic of the ECJ and Commission's intervention in Sport issues. The actions initiated by professional athletes, in order to defend their interests against clubs and federations, offered the ECJ and the Commission the possibility to extend their influence. Due to number of different factors, the ECJ was better placed than the Commission for such a move. The eagerness of the ECJ to intervene in Sport, contrary to the Commission, is explainable in terms of centrality of the issue on respective agendas and of different organizational mechanisms concerning enforcement of Community Law. Firstly, Sport regulation was and remains peripheral in the Commission agenda, as proved by the agreement of the "Delors college" with football governing bodies in 1991. At the contrary, this question is a sensitive issue for the ECJ, as it is directly related to the principle of the Supremacy of Community Law in the EU system. In fact, this principle is at the very core of the ECJ central role in the legal integration and its defense is clearly in line with maintaining the "acquis communautaire". Secondly, the former art. 177 procedure allows a more certain access, even if submitted to national court's filter, for individuals signaling Community Law infringements, in respect to the Commission's procedure regarding Competition Law infringements. Whereas the DG Competition has an expedient use of such "plaintes", the ECJ, because of its self-stated mission, is called to deliver an answer to all claims about justiciables' rights. Consequently, the pressure exerted over ECJ by specific interest groups is more effective, if only carried consistently in line with its jurisprudential principles and doctrine. On the other hand, the impact of institutional setting on the decision making is explainable, in terms of Historical Neo-institutionalism, by the weight of institutional inertia as well as by the unintended consequences associated to such a move. The first aspect consists essentially of the restriction of free choice. Because of the institutional inertia, the given options are not equally perceived and are not equally attainable by individual and collective actors. This factor does not have deterministic effects, but is weighted on the decisions of the specific case at stake. Because of the capital of legitimacy and consistency of ECJ interpretation of the Treaties, the explicit reversal of the legal decision made by the ECJ was simply not an easy option for the European Council, but a very remote possibility. Member States prefer to press on the Commission, more prone to political pressure, to soften the application of the ECJ rulings. The second aspect relies on the institutional linkage that affects the rational strategies of actors implied in institutional structures. This aspect generates a certain amount of uncertainty about the link between envisaged actions and expected outcomes. A sectorial exception on Sport could have some effects on the overall integration process, encouraging other similar cases and weakening the benefits of the Common Market, to which several governments are committed. All these factors played a role on the EU institutions, which had to deal with Sport regulation and were confronted with fierce reaction of major professional leagues and Sport self-governing bodies in the aftermath of the Bosmans ruling. National and international football organizations lobbied ferociously governments and EU institutions in order to reverse the Bosman ruling and to obtain a political "opting-out" of Sport in respect of Communitarian Law. However, in spite of this strong political and societal resistance, the counter-request for reversing the ECJ judgment was rejected, forcing the football governing bodies to perform a half-hearted adjustment to the Community Law82. The half-way solution on Sport regulation was also determined by the complexity of the EU decision making, especially given the lack of a more than majority consensus on the desirable outcomes. The several brakes that every institution can pull compromised either the progress of the integration process or its regression83. CONCLUSIONS Taking into consideration our original focus, the development of Sport regulation at the EU level, we can say that it gives some insights in the decision-making process of the EU and especially the relation between juridical and political spheres at the current stage of the European integration. The dynamics initiated by the ECJ, with the Bosman ruling of December 1995, highlighted the importance of the current position of the ECJ in the EU political system. Basically, the initiative of the ECJ through its legally-binding ruling, forced other institutions to react and create Sport regulation. Our findings in the Sport case highlight the ECJ great capacity for opening, nurturing and completing the EU decision-making process, in a more consistent and coherent way than that of other institutions. Taking Dehousse's analysis of the ECJ role in the EU decision making84, it is possible to appreciate its impact on the Sport case in four ways: - Firstly, its power to exert some political pressure in respect to the inter-institutional triangle, showed by the consequences of the Bosman ruling. - Secondly, its capacity of inducing the political process to enter in the courts and the interest groups enter in the judicial play to obtain results. - Thirdly, its action of delegitimization of political bargains, as in the case of the "gentlemen's agreement". - Fourthly, its influence in shaping the content of the decision making, supporting some options instead of others, illustrated by the effects of the Deliège and Lehtonen rulings. In sum, this paper is supporting the view that the EU decision-making continues to be highly influenced by the ECJ and the study of the EU governance has to take into account its role. The Sport case confirms the capacities of the ECJ to contribute to the policy making in the EU, but also opens some questions about its evolution. Another lesson to draw from the experience of Sport regulation is that the action of the ECJ on the EU institutional system is not directed one-way. The Sport case shows a certain interaction between EU institutions. Even if the Court is normatively assumed to be an independent organism, that is largely indifferent to other institutions, there is some kind of response that the ECJ is receiving by other EU institutions in response to its interventions. In fact, this case study illustrates some counter-moves from other institutions to neutralize the ECJ impact on the EU decision making process, by: - declaratory, but not legally binding, statements, like the Nice declaration on Sport; - informal political agreements, like the so-called "gentleman's agreement"; - interference in juridical procedures, by applying political pressure on legal actors. In such a way, for instance, the Commission and the Council could operate in order to avoid the case feeding of the ECJ and to escape its control in too much delicate political compromise. In sum, the ECJ role, which proved to have a durable importance in the European integration process since its beginning, had to accommodate itself to the historical conditions of this process, which determined the changing features of ECJ's relationship with other institutions. If at the early stages of the European integration the ECJ experienced a comfortable margin of maneuver, nowadays its freedom is reduced by three main factors85: a new visibility of the ECJ role in the EU system, a growing workload due to its success in such a role, and increasingly critical environment surrounding its activities. Concerning the more general debate about the re-politicization of the European integration process in the aftermath of the Maastricht Treaty, the underlying hypothesis of this paper is that this debate has to take into account the "judicialization of politics". This process is broadly definable as "the expansion of the province of the courts and judges at the expenses of the politicians and/or the administrators"86. This phenomenon, which took place in political systems all around the world, has also influenced the European integration process, reinforcing the position of the ECJ87. A related question to the judicialization of politics, which has definitively some relevance for this case is: "How political institutions take into account the growing power of the judiciary?"88. A possible answer is that they elude this phenomenon by taking decisions that make a difference, but without any legal-binding consequences. 1 According to Joseph H. H. Weiler : "...the interaction of the legal and the political, and the consequent equilibrium, constitute the very fundamental feature of the Community legal structure and political process.", in Idem, The Constitution of Europe, (Cambridge: Cambridge University Press, 1999) p. 109 2 Pierre Pescatore, "Les travaux du "groupe juridique" dans la négociation des traités de Rome", Studia Diplomatica XXXIV (1981), pp. 159-178 3 Renaud Dehousse, " L'Europe par le droit: pladoyer pour une approche contextuelle", Politique européenne 1 (avril 2000) K. Lenaerts, "Some Thoughts about the Interaction between Judges and Politicians in the European Community", Yearbook of European Law 12 (1992), pp. 1-34 4 Daniel Wincott, "A Community of Law ? 'European' Law and Judicial Politics: The Court of Justice and Beyond", Government and Opposition 35/1 (1999), pp. 3-26 5 Renaud Dehousse, La Cour de Justice des Communautés européenne, (Paris: Montchrestien, 1997) 2nd Ed. Cfr. Chapître 3 6 Ibidem 7 Kenneth A. Armstrong, |"New Institutionalism and European Union Legal Studies", in Paul Craig and Carol Harlow (eds.), Lawmaking in the European Union, (Dordrecht: Kluwer, 1996) 8 P. Hall and R. Taylor, "Political Science and the Three New Institutionalisms", PS XLIV (1996), pp. 936-957 9 Scholars started looking at the autonomous political role of supranational institutions such as the Commission, but also the European Court of Justice and the European Parliament. See Dehousse and Majone, "The Institutional Dynamics of European Integration: From the Single European Act to the Maastricht Treaty", in S. Martin (ed.), The Construction of Europe, (Dordrecht:Kluwer 1994), pp. 91-112 10 Garrett and Tsebelis, "An Institutional Critique of Intergovernmentalism", International Organization 50/2 (1996), pp. 269-299 11 Paul Pierson, "The Path to European Integration: A Historical Institutionalist Analysis", Comparative Political Studies 29/2 (1996) pp. 123-163 12 See Mark Cooney, "Legal Sociology and the New Institutionalism", Studies in Law, Politics and Society, 15 (1995), pp. 85-101 13 Clive H. Church, "Teaching about EU Institutions", Journal of European Public Policy 9/2 (2002), pp. 666-675 14 Giandomenico Majone, "Delegation of Power in a Mixed Polity", European Law Journal 8/3 (2002) pp. 319-339 15 Mark Pollack, "Policy-Making in the European Union", The Journal of Politics 60/4 (1998), pp. 1202-1208 16 Concerning this concept, see Peter M. Haas, "Epistemic Communities and International Policy Cooperation", International Organization 46/1 (1992), pp. 1-35 17 See Damian Chalmers, "Judicial Preferences and the Community Legal Order", Modern Law Review 60/2 (1997), especially pp. 165-167 18 C. Harding, "Who Goes to Court in Europe? An Analysis of Litigation against the European Community", European Law Review 17 (1992), pp. 105-125. According to this author: "A saga is a situation where a single policy provokes litigation over a period of time through a series of attacks" p. 120 19 Case C-36/74 Walrave v UCI (1974) ECR 1405 Case C-13/76 Dona v Montero (1976) ECR 1333 Case C-222/86 Heykes v Unectef (1987) ECR 4097 20 According to this compromise, clubs may field 3 'foreign' players plus 2 'assimilated' players. 21 Case C-13/76 Dona v Montero (1976) ECR 1333 22 L. Di Nella, "Il rapporto tra fenomeno sportivo e diritto : osservazioni di teoria generale e di diritto civile, comunitario e comparato", Rivista di diritto sportivo 1-2 (1998), pp. 243-265 J.-P. Karaquillo, Le droit du sport, (Paris: Dalloz, 1996), 2nd ed. C. Miège, Le sport européen, (Paris: Presses Universitaires de France, 1996) 23 Larive Report, PE Doc A2-282/88, 17/2/1988 Parlament européen, Résolution sur la Communauté européenne et le sport, JOC C 205/1994/06/06 p.487 24 For a perspective on the clash between EC Law and Sport regulations, in spite of political arrangements, see N. Parisis, "L'affaire Bosman : chronique d'une confrontation annoncée", Revue de jurisprudence de Liége, Mons et Bruxelles (1996), p. 156 25 S. Weatherill, "Discrimination on grounds of nationality in sport", Yearbook of European Law 9 (1989), pp. 55-92 26 Case C-13/76 Dona v Montero (1976) ECR 1333 27 Regulation 17/62 art. 3(2) 28 Case 415/93, URBSF vs Jean-Marc Bosman (1995) ECR I-4921 29 For a historical review see M. Silvestro, A. Silvestro, "Le sport dans l'Union européenne et l'arrêt Bosman", Revue du Marché Commun et de l'Union européenne 400 (1996), pp. 489-493 30 Para. 101, Bosman ruling 31 Para. 76, Ibidem 32 Para. 105, Ibidem 33 Para. 110, Ibidem 34 S. Weatherill, "Resisting the Pressures of Americanization: the Influence of European Community Law on the European Sport Model", in S. Greenfield and G. Osborn (eds.), Law and Sport in Contemporary Society, (London: Frank Cass Publishers, 2000), p. 164 35 Mario Clarich, "La sentenza Bosman : verso il tramonto degli ordinamenti giuridici sportivi ?", Rivista Italiana di Diritto Pubblico Comunitario, 3-4 (1996), pp. 613-628. For a rebuttal of Sport self-affirmed autonomy, based on conceptions of legal pluralism, see L. Silance, Les sports et le droit, (Bruxelles: De Boeck, 1998) 36 Parlement européen, Résolution sur le rôle de l'Union dans le domaine du sport, J.O. n°200 du 30/6/97 37 Declaration quoted by Roger Blanpain, L'affaire Bosman (Leuven: Peeters, 1996) p. 27 38 On the contrary, the legal commentaries of this ruling were, in majority, rather supportive of the line of reasoning of the European Court of Justice, especially as the Court was defending a major principle upon which the treaty is based. See G. Auneau, "Le mouvement sportif européen à l'épreuve du droit communautaire", Revue Trimestrielle de Droit européen 32/1 (1996), p. 111 39 "The Conference emphasises the social significance of sport, in particular its role in forging identity and bringing people together. The Conference therefore calls on bodies of the European Union to listen to sport association when important questions affecting sport are at issue. In this connection, special consideration should be given to the particular characteristics of amateur sport" Treaty of Amsterdam, Declaration on Sport, p. 136 40 Coopers&Lybrand, L'impact des activités communautaires dans le sport, study realized in 1993 and updated in 1995, which highlighted that 20 DG out of a total of 24 conducted activities having an impact on sport. 41 Commission européenne, Evolution et perspectives de l'action communautaire dans le sport, document de travail, Sport Unit, 29/9/1998 42 European Council Conclusions, Vienna, 11-12 December 1998, Para. 95 43 European Commission, COM (1999) 644 et /2) S. Weatherill, "The Helsinki Report on Sport", European Law Review 25 (2000), pp. 282-292 44 S. Weatherill, op. cit, in S. Greenfield and G. Osborn (eds.), Law and Sport in Contemporary Society (London: Frank Cass Publishers, 2000), pp. 170-171 45 See N. Parpworth, "Guarding the Game : Governing Bodies and Legal Intervention", and J.P. McCutcheon, "Sports Discipline and the Rule of Law", in S. Greenfield and G. Osborn (eds.), Law and Sport in Contemporary Society (London: Frank Cass Publishers, 2000), pp. 69-90 and pp. 115-128 I. Da Silva, "La judiciarisation du football", Pouvoirs 101 (2002), pp. 105-112 46 It is noteworthy to mention the activities of the Bosman legal team to promote several other cases, under which other Sport organizational and logistical structures were challenged. 47 A development forecasted by learned observers at the time of the Bosman ruling : F. Vandamme, "La communauté européenne et le sportif professionnel", Revue du marché commun et de l'Union européenne 398 (1996), pp. 353-357 M. Thill, "L'arrêt " Bosman " et ses implications pour la libre circulation des sportifs à l'intérieur de l'U.E. dans des contextes factuels différents de ceux de l'affaire Bosman", Revue du marché unique européen 1 (1996), pp. 89-117 48 Case 51/96 and C-191/96, Deliége (2000) ECR I-2549 Case 176/96, Lehtonen (2000) ECR I-2681 For a commentary: S. Bastianon, "Sport e diritto comunitario : la sfida continua. I casi Deliége e Lehtonen", Rivista di diritto sportivo 3 (1996), pp. 662-670 49 During the procedure, observations were made by the governments of Austria, Belgium, Denmark, Germany, Greece, Finland, France, Italy, Nederland, Norway, Spain, Sweden 50 N. Parisis, M. Fernandez Salas, "Le sportif individuel au regard de l'arrêt " Bosman " : les ordonnances " Deliége " ", Revue du marché unique européen 1 (1996), pp. 135-153 51 Para 22, Deliége ruling 52 Para. 56, Ibidem 53Para 76, Opinion of the Advocate-General Cosmas, Case Deliége 51/96 and C-191/96 54 M. Thill, " La reconnaissance de la spécificité du sport en droit communautaire ", Europe, n°6 (Juin 2000), pp. 4-7 55 Para. 41, Opinion of the Advocate-General Cosmas 56 Case 51/96 and C-191/96, Deliége (2000) ECR I-2549, Para. 64 57 Case 176/96, Lehtonen (2000) ECR I-2681, Para. 18 58 Para. 53-54, Ibidem 59 Para. 56, Ibidem 60 J.Y. Carlier, "Observation", Revue de jurisprudence de Liège, Mons et Bruxelles (2000), pp. 1381-1394 61 S. Van Den Bogaert, "The Court Of Justice On the Tatami : Ippon, Waza-Ari or Koka", European Law Review 25/5 (2000), pp. 554 62 As repeated again and again by the Helsinki Report on Sport, and widely reported by the press : Agence Europe, "Le Rapport Helsinki", 7/01/2000 Europolitique, "La commission veut redonner au sport sa dimension sociale", 4 Décembre 1999 Le Soir, "L'Europe en héraut du rôle social du sport", 10 Novembre 1999 63 Para. 67, Deliége ruling, 64 The Amsterdam Declaration on Sport was quoted in both motivations to justify the ECJ conclusions: Para. 33, Lehtonen ruling Para. 42, Deliége ruling 65 P. Muniz, "Observation", Revue du droit de l'Union européenne 2 (2000), pp. 441-445 66 This Opinion was never released. 67 Mario Monti, Excerpts of a speech given at Commission-organised conference on Sport, Brussels 17 April 2000, European Commission, Speech//00/52 68 Le Monde, "Le processus visant à revenir sur l'arrêt Bosman est enclenché", 17 Mars 2000 69 Sénat de la République française, Audition de M. Pierre Moscovici sur les conclusions du Conseil européen de Lisbonne, 29 Mars 2000 70 IXéme Forum Européen du Sport, Document cadre pour les discussions du groupe de travail portant sur la spécificité du Sport, Lille 26-27 octobre 2000 71 Financial Times, "FIFA to shake up football transfer fee system", Friday, September 1st, 2000 72 European Council Meeting, Declaration on the specific characteristics of sport, ANNEX IV, Nice, France, 7,8,9 December 2000 See Para 1, outlining the specific characteristics of Sport and its social function in Europe, Para. 7-10 regarding role of Sport federation, Para. 16-17 concerning transfer negotiation and the concluding sentence: "The Community institutions and the Member States are requested to continue examining their policies, in compliance with the Treaty and in accordance with their respective powers, in the light of these general principles." 73 Interview with Ms. Caballero, French Permanent Representation to the EU, Brussels, 10/06/2001 74 Financial Time, "Timeline: Football transfer issue gets defensive", Sunday, 11 March 2001 75 Deutsche Bundesregierung, Declaration commune du Chancelier fédéral Gehrard Schröder et du Premier ministre Tony Blair, Communiqué n°425/00, 10/9/2000 76 Financial Times, "Football authorities score notable victory on transfers", Sunday, March 11th, 2001 77 R. C. A. White, "Free Movement of Footballers", European Law Review, 26/2 (2001), p. 99 78 CJCE, "Communiqué de Presse", n°11/2001, 29 March 2001 The opinion of the Advocate General in charge of the case was already written at this moment but, in reason of the end of procedure, it was not diffused. 79 Even if this speculation is a counter-factual hypothesis, by definition uncertain, it is circumstantially confirmed by the legal doctrine and by the consistent jurisprudence of the Court in enforcement of art. 39. See L. Nyssen, X. Denöel, "La situation des ressortissants de pays tiers à la suite de l'arrêt " Bosman " ", Revue du marché unique européen, 1 (1996) , pp. 119-133 80 S. Weatherill, op. cit., in S. Greenfield and G. Osborn (eds.), Law and Sport in Contemporary Society (London: Frank Cass Publishers, 2000), p. 178 81 Commissioner M. Monti, "Competition and Sport the Rules of the game", Conference on "Governance in Sport", Swissotel, Brussels, 26/02/2001 82 Le Soir, Réponse hésitante de la Fifa, Jeudi, 12 juillet 2001 83 Fritz Scharpf, "The Joint Decision Trap : Lessons from German Federalism and European Integration", Public administration 66 (1988), pp. 239-278 84 Renaud Dehousse, La Cour de Justice des Communautés européenne, (Paris: Montchrestien, 1997) 2nd Ed. Cfr. Chapître 3 85 Joseph H. H. Weiler, The Least-Dangerous Branch: a Retrospective and Prospective of the European Court of Justice in the Arena of Political Integration, p. 212 in Idem, The Constitution of Europe, (Cambridge: Cambridge University Press, 1999), pp. 188-218 86 Torbjorn Vallinder, "When the Courts Go Marching In", in Torbjorn Vallinder, Neal C. Tate (eds.), The Global expansion of Judicial Power, (New York: New York University Press, 1995), p. 13 See also Jerold L. Waldman, Kenneth M. Holland (eds.), The Political Role of Law Courts in Modern Democracies, (Basingstoke: MacMillan, 1988) Donald W. Jackson, Neal C. Tate (eds.), Comparative Judicial Review and Public Policy, (Westport: Greenwood Press, 1992) 87 Mary L. Volcansek (ed.), Judicial Politics and Policy Making in Western Europe, (London: Franck Cass, 1992) 88 Carlo Guarnieri, Pedro C. Malgalhaes, "Democratic Consolidation, Judicial Reform, and the Judicialization of Politics in Southern Europe", in Richard Gunther, P. Nikiforos Diamandouros, Gianfranco Pasquino (eds.), The Changing Role of State in Southern Europe, (Baltimore: John Hopkins University Press, 2001), p. 82 1