on the conclusion, on behalf of the European Union, of the Council of Europe Convention on the manipulation of sports competitions with regard to matters related to substantive criminal law and judicial cooperation in criminal matters

EXPLANATORY MEMORANDUM

1.CONTEXT OF THE PROPOSAL

Match-fixing is widely regarded as one of the major threats facing contemporary sport. Match-fixing undermines the values of sport such as integrity, fair play and respect for others. It risks alienating fans and supporters from organised sport. Moreover, match-fixing often involves organised criminal networks active on a global scale. It is a problem that has now become a priority for public authorities, the sport movement and law enforcement agencies worldwide. To respond to these challenges, the Council of Europe invited parties to the European Cultural Convention during the summer of 2012 to begin negotiations for a Convention of the Council of Europe against the manipulation of sports results. Negotiations began in October 2012 with the first meeting of the drafting group of the Council of Europe.

On 13 November 2012 the Commission adopted "the recommendation for a Council decision authorizing the Commission to participate, on behalf of the Union, in the negotiations for an international convention of the Council of Europe to combat the manipulation of sports results". The Commission's recommendation was transmitted to the Council Working Party on Sports on 15 November 2012. Following discussions in the Council Working Party, the Council split the draft Council decision into two decisions due to the addition of substantive legal bases by the Council, including a legal basis stemming from Part 3, Title V TFEU. One decision on matters relating to betting and sport was adopted by the Council on 10 June 2013. The other decision was adopted by the Council on 23 September 2013 and concerned matters related to cooperation in criminal matters and police cooperation.

On 9 July 2014 the Ministers’ Deputies of the Council of Europe adopted the Convention on the Manipulation of Sports Competitions. The Convention was opened for signature on 18 September 2014 at the Council of Europe Conference of Ministers responsible for Sport. According to its Article 32 (1), the Convention is open to signature of the European Union. Since then a number of parties have signed the Convention, including many Member States.

On 2 March 2015, the Commission presented to the Council its proposals for the Council's decisions on the signing of the Convention on behalf of the Union; (i) a proposal for a Council decision on the signing of the Convention on behalf of the Union with regard to matters related to substantive criminal law and judicial cooperation in criminal matters {COM(2015)86} based on Articles 82 (1) and 83 (1) TFEU; and (ii) a proposal for a Council decision on the signing of the Convention on behalf of the Union with regard to matters not related to substantive criminal law and judicial cooperation in criminal matters {COM(2015)84} based on Articles 114 and 165 TFEU. The explanatory memorandum of these Commission's proposals contained a detailed competence analysis of the Convention. The Commission's proposals were last discussed in Coreper on 11 and 20 November 2015. At this occasion the Presidency concluded that it would not proceed with the file until it had obtained the consent of all delegations.

Against this background, the Union has not yet signed the Convention. The Commission considers that the signature of the Convention should be part of the Union's efforts to participate in the fight against match fixing in conjunction with other tools such as the forthcoming Commission initiative on betting-related match-fixing in line with the 2012 Commission Communication on online gambling, the work of the EU Expert Group on match-fixing, and Preparatory Actions and projects dedicated to match-fixing.

The present proposal concerns the legal instrument concluding the agreement.

2. THE AGREEMENT

Pursuant to Article 1 of the Convention, its purpose is "to combat the manipulation of sports competitions in order to protect the integrity of sport and sports ethics in accordance with the principle of the autonomy of sport". For this purpose, the ultimate objective of the Convention is "to protect the integrity of sport and sports ethics". It does so by taking a number of measures that aim at preventing, detecting and sanctioning the manipulation of sports competitions. In view of that purpose, the Convention also promotes international cooperation and sets-up a monitoring mechanism to ensure that the provisions laid down in the Convention are followed up.

The Convention thereby embodies a multifaceted approach to address the manipulation of sports competitions. Accordingly, measures to be adopted vary in nature and affect different areas of law, with the prevention aspect being pervasive. Other areas of law concerned are substantive criminal law, judicial cooperation in criminal matters, data protection, and also regulation of betting activities.

Most of the provisions on prevention are contained in chapters II and III of the Convention, with Chapter III setting out a number of provisions to facilitate the exchange of information between all interested parties.

Measures in relation to betting services may touch upon the internal market freedoms concerning the right of establishment and the freedom to provide services, to the extent that betting operators exercise an economic activity. As regards Article 3(5)(a) and 11 in particular, the definition of "illegal sports betting" refers to any sports betting whose type or operator is not allowed by virtue of applicable law in the jurisdiction of the Party, where the gambler is located. The term "applicable law" includes EU law. This implies that any right granted by EU law must also be borne in mind and that national law of the Member States has to be in conformity with EU law in particular with internal market rules.

By contrast, Articles 9 to 11 envisage measures that could lead to a certain degree of approximation of laws. For instance, Article 9 of the Convention proposes an indicative list of measures which could be applied by the respective regulatory betting authority "where appropriate" to combat the manipulation of sports competitions in relation to sports betting. Article 10(1) of the Convention states that "each Party shall adopt such legislative or other measures as may be necessary to prevent conflicts of interest and misuse of inside information by natural or legal persons involved in providing sports betting products (…)" (emphasis added). Article 10(3) of the Convention aims at establishing reporting obligations by stating: "Each Party shall adopt such legislative or other measures as may be necessary to oblige sports betting operators to report irregular or suspicious betting without delay to the betting regulatory authority (...)" (emphasis added). Finally, Article 11 of the Convention on illegal sports betting grants even greater leeway to the Parties. It reads: "each Party shall explore the most appropriate means to fight operators of illegal sports betting and shall consider adopting measures, in accordance with the applicable law of the relevant jurisdiction, such as (…)".

This shows that Articles 9, 10(1) and 10(3) of the Convention create a basis for possible harmonisation under Article 114 TFEU, to the extent that betting operators exercise an economic activity. Article 11, which contains even more flexible wording, still involves some degree of approximation of provisions which may also be covered by Article 114 TFEU on the establishment and functioning of the internal market.

In addition, Article 11 of the Convention may also affect services provided from a third country. The measures in question, which concern directly "access" of such services, would be covered by the Union's common commercial policy pursuant to Article 207 TFEU.

Chapter IV concerns criminal law and cooperation with regards to enforcement (articles 15 to 18). Article 15 of the Convention does not impose the overall incrimination of conduct of manipulation of sports competitions, but only certain forms (where they involve corruption, coercion or fraud).

Article 16 concerns money laundering. At Union level, this is regulated by Council Framework Decision 2001/500/JHA, along with Directive 2014/42EU. Article 16(3) of the Convention falls under EU competence and Article 114 TFEU (Directive 2005/60/EC on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing). Chapter V on jurisdiction, criminal procedure and enforcement measures, and Chapter VI on sanctions and measures, contain provisions which accompany the substantive criminal law provisions contained in Article 15 to 18 of the Convention. Article 19 of the Convention (jurisdiction) is an accessory provision to the establishment of the criminal provisions. Articles 20, 21 and 25 of the Convention (investigative measures, protection measures, seizure and confiscation) are criminal procedural measures which may be covered by Article 82(2) TFEU (points (a) and (b)).

Chapter VII concerns international cooperation in judicial and other matters. It is important to note that the Convention does not contain any legal regime that would replace existing rules, and it is therefore without prejudice to instruments which already exist in the field of mutual assistance in criminal matters and extradition. In this context, there is a comprehensive set of instruments at European level in order to facilitate judicial cooperation in criminal matters which would apply either to the different modi operandi of match-fixing or upon criminalization of match-fixing as a new offence in the domestic legal order of the Member States. This would cover Article 26 of the Convention.