Sport, sponsoring and constitutional niceties

Date: 22/01/1998

By Ian S. Forrester QC

BEFORE any Community act is proposed, the European Commission prepares the ground politically. Gone are the days of launching bright legislative ideas cold upon a Euro-baffled world.

In addition, there will be a careful consideration of what legal basis exists in the treaty, since the institutions cannot act without a constitutional basis.

In the old days, arguments about which treaty provision should underpin a particular piece of legislation really related to whether unanimity was required for adoption.

Today, subsidiarity is a more important concern. Subsidiarity was introduced into the treaty as a response to perceived excesses of zeal by the Commission. Article 3b provides that the EU shall take action only if its objectives "cannot be sufficiently achieved by the member states".

There are further complications, due to different levels of sensitivity among the member states about legislative priorities (is consumer protection more or less important than the elimination of trade barriers between member states?), and due to constitutional tensions within the member countries.

A good illustration of legislative muddle was provided when, in order to recruit Green support for the reform of the Belgian constitution, the government of the day promised to introduce eco-taxes.

These were intended to outlaw unecological products, such as throw-away razors and disposable cameras.

In fact, the benefit to the environment was far from clear and the legislation was challenged by Bic Benelux as being contrary to Directive 83/189, which requires the Commission to be notified of all new technical standards.

The Cour d'Arbitrage, which is charged with disentangling such constitutional problems, referred the matter to the European Court of Justice. There, Belgium (timidly supported by the Commission) argued that the measure involved taxation and was thus immune from notification under the directive.

The European Court condemned the legislation, leaving the Greens with little to show for their promise of support.

More recently, the draft directive on tobacco advertising and sponsorship presents a soupy mix of constitutional uncertainties. At EU level, the doubts relate to the appropriate legal base.

The draft is based on Article 100a, a catch-all text for measures "which have as their object the functioning of the internal market". Article 100a was inserted into the treaty by the Single European Act as a means of unblocking the convention that important EC legislation required unanimity, forcing the Community to move at the pace of the slowest member state.

Now, Article 129a provides power for action to pursue a high level of consumer protection but, in the field of health, EC action shall be to support "the policy pursued by the member states". Worse, Article 129 provides that in the field of public health, Council of Ministers' action must exclude "any harmonisation of the laws".

It has to be said that member state health measures have not set consumers aglow with confidence. So the Amsterdam Treaty reworked Article 129a to provide that the Community may "contribute to protecting" consumer health by measures adopted under Article 100a.

Thus it would seem very likely that the draft directive today lacks a sound legal basis, but that one may be introduced by the Amsterdam Treaty. I cannot recollect any past example of legislation being launched with an inadequate legal basis in the hope that the gaps would be cured by a subsequent treaty amendment.

However, further uncertainties await. Is the measure consistent with the slippery principle of subsidiarity? Advertising and sponsorship are very relevant to sport and to culture, and this poses a constitutional problem for member states which have a devolved or federal structure.

For example, sports and culture fall within the competence of the German Länder.

Similar issues can arise in Belgium. Bizarrely, if Flanders, Wallonia and Brussels disagree on an EU proposal, the country abstains.

In Germany, a special mandate from the senate (Bundesrat) is necessary. In each country, special constitutional mechanisms are provided to resolve deadlocks.

It remains to be seen how there will be a reconciliation of the interests of the harmonisers (keen that tobacco-related images will disappear from television screens at a Euro-determined rhythm) and those who favour respect for the rights of sub-national bodies who have interests - and different ones - in culture and sport.

What will be the view of a small sporting federation, faced with losing valuable sponsorship? Will it argue that the principles of subsidiarity (do it locally if possible) and proportionality (in pursuing legislative goals, impose only those burdens which are really necessary) are infringed by the directive? What attitude will the Green coalitions, which feel that tobacco must be extirpated sooner than 2006, take on the issue? What will be the response of the Länder?

Watch this space, gentle reader.

This article reflects the personal views of the author.

Author examines the constitutional uncertainties raised by the draft directive on tobacco advertising and sponsorship in the context of the subsidiarity provisions of Article 3b.