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«February 2014 Review of the Balance of Competences between the United Kingdom and the European Union Culture, Tourism and Sport © Crown copyright ...»

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Council Directive 93/7/EEC on the return of cultural objects unlawfully removed from the territory of a Member State, 1993.

Council Regulation 3911/92/EEC on the export of cultural goods, 1992.

European Council, conclusions on Preventing and Combating Crime Against Cultural Goods, EU (2011).

HMG, The Balance of Competences Between the UK and the EU, Single Market: Free Movement of Goods Report, published in parallel.

18 Review of the Balance of Competences between the United Kingdom and the European Union: Culture, Tourism and Sport

1.17 EU rules on copyright are of relevance to the library sector. The Rental and Public Lending Directive enables libraries to lend out books to the public, subject to certain safeguards and payments for authors.17

1.18 The Transatlantic Trade and Investment Partnership (TTIP) currently being negotiated by the EU and United States has revealed some tension between the EU’s trade and cultural agendas.

The free trade agreement could add as much as £100bn to the EU economy (£10bn annually to the UK economy) and the UK has consistently pushed for as comprehensive and ambitious a mandate as possible. However, a number of Member States successfully argued, as with all previous EU trade agreements, that it is necessary to exclude audio-visual services from the agreement in order to protect European culture. The UK maintains that it is wrong to limit the agreement’s scope at this stage. The European Commission is able to propose the inclusion of audio-visual at a later stage of negotiations and the Government will work with the sector to identify potential benefits to doing so. The exclusion of audio-visual does not include intellectual property. Please see the Balance of Competences report on trade and investment, which will be published alongside this report.18 Tourism

1.19 It was not until 2009 that TFEU conferred on the EU a specific supporting competence in relation to tourism. As with culture, harmonisation in this sector was excluded, and whilst both the EU and national governments could act, action by the EU did not prevent national governments from acting as well. The EU has not yet adopted any regulatory or legislative measures under Article 195 TFEU. However, it has launched a number of policy proposals with the objectives of supporting and promoting EU tourism.

1.20 The EU’s 2010 Communication on Tourism identified four priorities for action:

• Stimulating competitiveness;

• Promoting sustainable, responsible and high-quality tourism;

• Consolidating Europe’s image as a collection of sustainable, high-quality destinations; and

• Maximising the potential of EU financial policies for developing tourism.19

1.21 In 2012, the EU published an implementation plan for these priorities, and to capitalise on Europe’s common heritage.20 Plans included an ICT and tourism platform to support the tourism sector in using new information technology, and the development of a Consumer Markets Scoreboard to measure consumer satisfaction with services such as transport, accommodation, travel and package tours.

1.22 The EU is also keen to encourage an extension to the tourist season, improve professional skills and provide up to date, comparable data on tourism across the EU.

1.23 In July 2012, the Commission consulted on the development of a European Tourism Label for Quality scheme.

Directive 2006/115/EC of the European Parliament and of the Council on rental right and lending right and on certain rights related to copyright in the field of intellectual property, 2006.

HMG, The Balance of Competences Between the UK and the EU, Trade and Investment Report, published in parallel to this report.

Commission Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Europe, The World’s No 1 tourist Destination – A New Political Framework for Tourism in Europe COM (2010) 352, June 2010.

Commission Communication, Ensuring a Successful Implementation of the Tourism Communication COM

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1.24 In the international field the EU cooperates with international organisations, including the European Travel Commission, the World Tourism Organisation and the Organisation for Economic Co-operation and Development (OECD), and with non-EU countries to promote European Tourism under implied exclusive competence powers. The EU is currently working on a draft joint statement with the Chinese National Tourism Administration.

Other Areas of EU Competence Affecting Tourism

1.25 While the EU’s new specific competence on tourism is of relatively short standing, the EU has acted in the field of tourism for a number of years. For example, in 1986 a Council decision established a consultation and co-operation procedure in the field of tourism under which Member States exchange information and co-operate in the provision of services to tourists.21 This was adopted using the residual legal base (now Article 352 TFEU), on the basis that tourism contributed to general Community objectives such as economic activities. A further decision in 1992 set out the Community Action Plan to Assist Tourism. This had a budget of €15m which was adopted under the same legal base, recognising that tourism makes a contribution to the progress of the idea of European citizenship.22

1.26 There are also a wide range of EU competences, outside the specific tourism competence, that have a very significant impact on the tourism sector, including free movement, immigration, the Single Market and transport. For example, the Court of Justice of the European Union (ECJ) case law has long recognised the right of EU citizens to travel to other EU countries as tourists and as recipients of services.23 This has now been enshrined in the Free Movement Directive 2004/38/EC as a right for all EU citizens to enter and stay in another EU Member State for up to three months.24

1.27 In relation to non-EU visitors, the UK has adopted a special position under the EU Treaties, meaning it can chose whether or not to participate in EU measures relating to justice and home affairs, including immigration. Although most EU countries have signed up to the Schengen Agreement, which includes arrangements whereby a non-EU national issued a visa by one Schengen country can travel to other Schengen countries on that visa, the UK has not opted into the areas of the Schengen Agreement concerning visas and border control. Successive UK governments have believed that in the interests of national security and of controlling immigration, the UK is best served by maintaining its own independent border checks and visa systems. This means that non-EU visitors must apply for a separate visa if they wish to visit the UK. The benefits – and costs – of this decision are discussed in further detail in the Balance of Competences report on asylum and immigration.25

1.28 The EU has a shared competence in relation to transport and harmonised laws affecting, for example, air travel, which will impact the Tourism sector. For example, the Denied Boarding Regulation protects air travellers in the event of delays. There is similar legislation Council Decision 86/664/EEC establishing a consultation and cooperation procedure in the field of tourism, 1986.

Council Decision 92/421/EEC on a Community action plan to assist tourism, 1992.

Luisi and Carbone v. Ministero del Tresoro, Cases 286/82 and 26/83 [1984] E.C.R. 377.

Directive 2004/38/EC of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, 2004.

HMG, The Balance of Competences Between the UK and the EU, Asylum and Immigration Report, published in parallel to this report.

20 Review of the Balance of Competences between the United Kingdom and the European Union: Culture, Tourism and Sport for rail, bus, coach and ferry travel.26 Please see the Balance of Competences report on transport which will be published alongside this report.

1.29 Some measures under the freedom to provide services provisions of the Treaties apply directly to the sector, and include, for example, the 1990 Package Travel Directive, which protects consumers booking pre-arranged package holidays so that, for example, they will always be able to return home even if a tour operator goes into liquidation. Over the years, the development of the internet and the emergence of low-cost air carriers have revolutionised the way in which people organise their holidays. A growing number of people now arrange their holidays themselves. These changes in the travel market mean that less people are booking traditional package holidays, and so the numbers protected by the Directive have fallen. The EU is currently reviewing its legislation on package holidays. Please see the Balance of Competences report on the Single Market: Services, which will discuss this further.27 Sport

1.30 As with tourism, it was not until the 2009 Treaty of Lisbon that a specific supporting competence in relation to sport was conferred on the EU. However, the Declaration on Sport annexed to the 1997 Amsterdam Treaty emphasised the social significance of sport, and in particular its role in forging identity and bringing people together. Like culture and tourism, harmonisation in this sector is excluded under Article 165 TFEU, so whilst both the EU and national governments can act, action by the EU does not prevent national governments from acting as well. The EU has not yet adopted any regulatory or legislative measures under this specific competence, but has developed a series of priority actions in this area.

1.31 In 2011, the EU issued a Communication on developing the European Dimension in Sport and since 2009 has made funding available to support studies, conferences, seminars, networks and best practice on the basis of the priorities set out in the EU Commission’s 2007 White Paper on Sport.28 29

1.32 The Communication established the EU’s interest in developing activity in the following


• The societal role of sport including anti-doping, training and qualifications, enhancing health and social inclusion;

• The economic dimension of sport including sustainable financing, the application of EU State aid rules to Sport and regional development and employment; and

• The organisation of sport including the promotion of good governance, the specific nature of sport, the free movement and nationality of sports persons, transfer rules and activities of sports agents, co-operation with third countries and the CoE.

Regulation 261/2004/EC of the European Parliament and of the Council establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, 2004.

HMG, The Balance of Competences Between the UK and the EU, Single Market: Services Report, published in parallel to this report.

Commission Communication to the European Parliament, the Council, the European Economic and Social

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1.33 Under the Treaty of Lisbon, the EU was expressly given external competence in relation to sport. For example, the CoE is working on a Convention against the Manipulation of Sports Competitions, to help tackle match-fixing. The UK is participating alongside the European Commission and others in the negotiations.30 Other Areas of EU Competence Affecting Sport

1.34 Long before the development of the new specific competence on sport the EU was active in this area and there are a wide range of other EU competences that impact on the sector.

1.35 This is particularly true of the field of professional sport, which has been influenced by ECJ case law relating to the free movement of persons. The landmark case of Bosman changed the way in which sport club teams signed footballers and other professional sports players from other EU countries.31 The Bosman Case In the Bosman case, the ECJ ruled that transfer fees for out-of-contract players, directly affecting a footballer’s access to the employment market in another EU country, were an obstacle to the free movement of workers, and thus unlawful. Footballers are therefore free to move on to other clubs once their contracts have expired. The Court also ruled against limits on fielding EU footballers from other Member States in club teams meaning that football clubs in the EU can sign any number of European players.

1.36 In addition to the Bosman ruling, various judgments have ruled on the interaction between sport in the context of free movement rights and competition law. So while the ECJ has applied free movement principles to the sector, it has nonetheless recognised that in certain circumstances – such as where sporting activity is wholly non-professional, or national teams are competing in national events – Member States may impose certain restrictions.32 Similarly, competition law has been applied to national sports associations and international bodies in respect of their economic activities, such as selling tickets or broadcasting rights, while taking into account the social significance of sport in the need to ensure fair sport competitions and the need to ensure reasonable access to tickets for everybody.

1.37 The sports sector is also subject to EU rules on broadcasting, under the services chapter of the Single Market. In particular, the Audiovisual Media Services Directive contains specific provisions enabling Member States to ensure that specified events of national The Commission is participating under negotiating mandates given in two decisions of the Council: the first decision was based on the elements of the Convention relating principally to freedom of establishment and freedom to provide services under Articles 50 and 56 TFEU (where the EU shares competence with the Member States) as well as those dealing with sport under Article 165 (where the EU only has supporting competence). The second decision was based on Articles 82(1), 83(1) and 87(2) TFEU, which relate to judicial cooperation, criminal offences and police cooperation. These articles all fall within Title V of the TFEU in respect of which the UK (as well as Ireland) has an opt-in. The UK has not chosen to opt-in, meaning the UK has not authorised the EU to negotiate in those areas of the Convention on its behalf.

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