The Implications of the Recent Jurisprudence of the Court of Justice of the European Union for the Protection of the Fundamental Rights of Athletes and the Regulatory Autonomy of Sporting Federations

Wojciech Lewandowski

doi:10.5334/tilr.193

Abstract

Fundamental rights of the EU are in principle applicable in relations of vertical nature, in which individuals are confronted with the state. However, in relations of horizontal nature, in which both parties are individuals and on equal terms, applicability of the Charter of Fundamental Rights of the EU has been long disputed among scholars. Only recently, in rulings Egenberger and Bauer, the Court of Justice of the European Union has directly addressed this issue. This paper elaborates on the consequences of the Court’s decision for the European sports model, presents reasons for justification of horizontal applicability of fundamental rights of the EU towards sports and proposes a method of applying the framework developed by the Court to conducting sports activity in the EU. Main argument of the Author is that the rules regulating sporting activity, if this activity falls within the scope of the law of the EU, may be subject to assessment of conformity with fundamental rights of the EU thanks to direct horizontal applicability of the Charter, which explicitly results from the recent Court’s rulings.

Highlights

Sport, along with education, vocational training, and youth, is one of the areas listed in Article 6(e) of the Treaty on the Functioning of the European Union (TFEU)[1] in which the European Union (EU) has competence to carry out ‘actions to support, coordinate or supplement the actions of the Member States’
Main argument of the Author is that the rules regulating sporting activity, if this activity falls within the scope of the law of the EU, may be subject to assessment of conformity with fundamental rights of the EU thanks to direct horizontal applicability of the Charter, which explicitly results from the recent Court’s rulings
Of the Fundamental Rights of Athletes and the Regulatory Autonomy of Sporting Federations individuals without any protection of their rights, the Court indicated the solution presented in the case Dominguez[24] that would allow individuals to obtain, if appropriate, compensation from Member States for the sustained loss resulting from the national law not being in conformity with the law of the EU.[25]

Summary

Introduction

Along with education, vocational training, and youth, is one of the areas listed in Article 6(e) of the Treaty on the Functioning of the European Union (TFEU)[1] in which the European Union (EU) has competence to carry out ‘actions to support, coordinate or supplement the actions of the Member States’. Due to their constitutional origins, the discussion on applicability of fundamental rights to disputes between private parties (horizontal applicability) was held among constitutional law scholars at national levels[6] long before fundamental rights emerged in EU legal order after Stauder ruling.[7] the debate around the horizontal effect and applicability of fundamental rights at the Union level was long impeded due to the lack of a defined catalog of binding fundamental rights This changed with the adoption of the Charter of Fundamental Rights of the European Union (hereinafter ‘the Charter’) in 2000, which became binding in 2009.8

The Indirect Horizontal Applicability of the Fundamental Rights in the EU

Arguments for Direct Horizontal Applicability of the Charter

Application of the EU law to Sport as a Matter of Horizontality

Conclusion