Amateur sport and Union citizenship in the Biffi case: Towards a European sporting citizenship
| Author | Antonio Di Marco |
| Date | 01 October 2020 |
| Published date | 01 October 2020 |
| DOI | 10.1177/1023263X20946539 |
| Subject Matter | Articles |
Article
Amateur sport and Union
citizenship in the Biffi case:
Towards a European
sporting citizenship
Antonio Di Marco*
Abstract
This essay focuses on the relation between amateur sport and Union citizenship, analysing the
recent Biffi ruling of the European Court of Justice. It examines the opinion of the Advocate
General and the Judgment of the ECJ, starting from the established case-law according to which
sport is subject to EU law insofar as it constitutes an economic activity. Taking into account the
possible application of the Treaty in light of the indirect impact on economic activities of the
amateur athlete, the study analyses the legal implications of Article 165 TFUE considering the social
function of sport. Finally, the paper illustrates to what extent the Biffi case represents a simple
clarification of the existing legal relationship, a coherent case-law development, or another seismic
ECJ ruling on sport.
Keywords
European citizenship, amateur sport, non-discrimination, horizontal direct effect, scope of EU law
* Teaching professor at the University of Strasbourg, IEP (Institut d’Etudes Politiques), Strasbourg, France
Corresponding author:
Antonio Di Marco, Teaching professor at the University of Strasbourg, IEP (Institut d’Etudes Politiques).
E-mail: a.dimarco@unistra.fr
Maastricht Journal of European and
Comparative Law
2020, Vol. 27(5) 598–614
ªThe Author(s) 2020
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DOI: 10.1177/1023263X20946539
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MJ
MJ
Sport can be used to replace one identity with another as it functions as a vehicle for assimilation; sport
can be used to perpetuate antagonistic notions of identity; and it may be used to create an international
and all-encompassing identity in place of the national.
1
1. Introduction
Sport has been intended as a means to promote the identity of Europe and its citizens since the
Adonnino Report, which, as is well known, put forward a number of measures to encourage a
sense of belonging among European citizens.
2
This important function of sport in the European
project was distinctly recognized by the Amsterdam intergovernmental conference, which
‘emphasise[d] the social significance of sport, in particular its role in forging identity and
bringing people together’, with ‘special consideration [ ...] to the particular characteristics of
amateur sport’.
3
The social and educational function of sport, widely discussed by several authors,
4
has been the
focus of growingattention from the EuropeanCommission (EC),
5
the EuropeanParliament (EP)
6
and
the Councilof the European Union(CoEU).
7
The Conclusionsof the CoEU of November 2018‘on the
economic dimension of sport and its socio-economic benefits’,
8
for instance, emphasized the role of
1. M. Cronin and D. Mayall, Sporting Nationalisms: Identity, Ethnicity, Immigration and Assimilation (Frank Cass,
1998), p. 7.
2. See the Communication by the Commission to the Council of 29 March 1985, A People’s Europe, COM(84) 446 final,
Reports from the ad hoc Committee. The Adonnino Report has proposed the adoption of the European flag with 12 stars,
a European driving licence, a European anthem, postage stamps with European emblems, standardized postal rates
within the Community and the removal of the ‘Customs’ signs at internal frontiers. On the contribution of Adonnino
report to the role of sport in the European project see, for instance: B. Bogusz, ‘Commercial Freedom and Sport: Has
Sport Lost its Sporting Edge?’, in B. Bogusz, A. Jan Cygan and E.M. Szyszczak (eds.), The Regulation of Sport in the
European Union (Edward Elgar, 2007), p. 159; J. Tognon, ‘L’Unione Europea e sport: evoluzioni e sviluppi di un
rapporto ‘‘particolare’’’,in J. Tognon (eds.), Diritto comunitario dello sport (Giappichelli, 2009), p. 6; L. Colantuoni,
Diritto Sportivo (Giappichelli, 2009), p. 12.
3. Treaty of Amsterdam, Declaration on Sport (n. 29), p. 136.
4. On the identity-social function of sport, in addition to the authors mentioned in the previous notes, see: B. J. Keys,
Globalising Sport. National Rivalry and International Community in the 1930s (Harvard University Press, 2006); R.
Lavermore, ‘Sport’s Role in Constructing the ‘‘Inter-state’’Worldview’, in R. Lavermore and A. Budd (eds.), Sport and
International Relations (Routledge, 2004) p. 16–21; M. Polley, Moving the Goalposts: A History of Sport and Society
Since 1945 (Routledge, 1998); S. Pivato, ‘Identit`asportiva e identit `a nazionale’, 109 M´
elanges de l’ ´
Ecole franc¸aise de
Rome. Italie et M´
editerran´
ee (1997), p. 277–284.
5. The most important and mentioned measures adopted by the EC are the White Paper on Sport, COM(2007) 391 final and
the Helsinki Report on Sport, COM (1999)644 final. However, over the last years, the EC has issued a number of
Communications that concern sport and activities related to it, such as: Europe 2020: A strategy for smart, sustainable
and inclusive growth, COM(2010) 2020 final and Developing the European Dimension in Sport, COM(2011) 12 final.
6. On this point see: EP resolution of 2 February 2017 on an integrated approach to Sport Policy: good governance,
accessibility and integrity, 2016/2143(INI); EP resolution of 19 January 2016 on the role of intercultural dialogue,
cultural diversity and education in promoting EU fundamental values, 2015/2139(INI); EP resolution of 2 February 2012
on the European dimension in sport, 2011/2087(INI); and EP resolution of 13 November 2007 on the role of sport in
education, 2007/2086(INI).
7. CoEU, conclusions of 18 November 2010 on the role of sport as a source of and a driver for active social inclusion, 2010/
C 326/04.
8. CoEU, conclusions of 8 November 2018 on the economic dimension of sport and its socio-economic benefits, 2018/
13764/18.
Di Marco 599
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