Proposal for a COUNCIL DECISION 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 not related to substantive criminal law and judicial cooperation in criminal matters
Date: 2017-07-27
Institutions: Directorate-General for Education, Youth, Sport and Culture, European Commission
Subjects: European convention, fraud, gaming, international cooperation, organised crime, ratification of an agreement, sporting event

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   EUROPEAN COMMISSION  Brussels, 27.7.2017  COM(2017) 387 final 2017/0166 (NLE)   Proposal for a COUNCIL DECISION 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 not 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"1.  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.2  One 
decision  on  matters  relating  to  betting  and  sport  was  adopted  by  the  Council  on  10  June 
2013.3  The other decision was adopted by the Council on 23 September 2013 and concerned 
matters related to cooperation in criminal matters and police cooperation.4 

On 9 July 2014 the Ministers’ Deputies of the Council of Europe adopted the Convention on 
the Manipulation of Sports Competitions.5  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. 

to  substantive  criminal 

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 
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 
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 

to  substantive  criminal 

judicial  cooperation 

judicial  cooperation 

law  and 

law  and 

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COM(2012)655 final.  
The Commission issued a statement to the Council minutes in which it disagreed with the insertion of the 
substantive legal basis, see Council document No 10509/13.  
Council  Decision  2013/304/EU  of  10  June  2013  authorizing  the  European  Commission  to  participate,  on 
behalf of the EU, in the negotiations for an international convention of the Council of Europe to combat the 
manipulation of sports results with the exception of matters related to cooperation in criminal matters and 
police cooperation, OJ L170, 22.6.2013, p.62.  
Council  Decision  authorizing  the  European  Commission  to  participate,  on  behalf  of  the  EU,  in  the 
negotiations for an international convention of the Council of Europe to combat the manipulation of sports 
results  as  regards  matters  related  to  cooperation  in  criminal  matters  and  police  cooperation,  Council 
document No 10180/13. 

5  Malta voted against the Convention, and submitted a request to the European Court of Justice for an opinion 

on the Convention pursuant to Article 218(11) TFEU on 11 July 2014 (Opinion 1/14). 

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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,6  the  work  of  the  EU  Expert  Group  on 
match-fixing, and Preparatory Actions and projects dedicated to match-fixing.7 

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.8  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 Convention9, 
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 

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recent 

http://ec.europa.eu/internal_market/gambling/communication/index_en.htm 
By  way  of 
safeguarding-liberties/other-programmes/cooperation-between-public-private/index_en.htm 
Prevention is addressed in Chapters II and III as well as in Articles 27 and 28 of the Convention. 
See also Articles 27 and 28 of the Convention covering general aspects of cooperation.  

example:  http://ec.europa.eu/dgs/home-affairs/financing/fundings/security-and-

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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,10 along with Directive 2014/42EU.11  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).12  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.13  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.14  This would cover Article 26 of the Convention. 

10  Council  Framework  Decision  2001/500/JHA  on  money  laundering,  the  identification,  tracing,  freezing, 

seizing and confiscation of instrumentalities and the proceeds of crime, OJ L 182, 5.7.2001, p.1. 

11  Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and 

confiscation of instrumentalities and proceeds of crime in the European Union. 

12  The directive sets out the framework designed to protect the soundness, integrity and stability of credit and 
financial  institutions  and  confidence  in  the  financial  system  as  a  whole,  against  the  risks  of  money 
laundering and terrorist financing. 
§21 of the explanatory report. 

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14  Council Act of 29.5.2000 establishing the Convention on Mutual Assistance in Criminal Matters between 
the  Member  States  of  the  European  Union,  OJ  C197,  12.7.2000,  p.1;  Council  Framework  Decision 
2002/584/JHA  on  the  European  arrest  warrant  and  the  surrender  procedures  between  Member  States,  OJ 

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Conclusions 

Certain  offences  are  currently  not  covered  by  Article  83(1)  TFEU.    The  Union  has 
competence over the rest, but is exclusive only over two provisions - Article 11 (to the extent 
that  it  applies  to  services  from  and  to  third  countries)  and  Article  14  on  data  protection  (in 
part).15  The remainder is shared or "supportive" competence. 

3. 

THE LEGAL BASIS OF THE PROPOSED DECISION  

3.1. The substantive legal basis  

As far as the legal basis is concerned, it is established case-law that the choice of legal basis 
for an EU measure must rest on objective factors that are amenable to judicial review; these 
include  the  aim  and  the  content  of  the  measure.16    If  examination  of  a  European  Union 
measure reveals that it pursues a twofold purpose or that it has a twofold component and if 
one  of  those  is  identifiable  as  the  main  or  predominant  purpose  or  component,  whereas  the 
other is merely incidental, the measure must be founded on a single legal basis, namely that 
required  by  the  main  or  predominant  purpose  or  component.    By  way  of  exception,  if  it  is 
established that the measure pursues several objectives which are inseparably linked without 
one being secondary and indirect in relation to the other, the measures must be founded on the 
various corresponding legal bases.17  

The substantive legal bases which potentially have relevance here are: Article 16 TFEU (data 
protection), Article 82(1) and 82(2) TFEU (judicial cooperation in criminal matters), Article 
83(1) TFEU (substantive criminal law), Articles 114 TFEU (establishment and functioning of 
the internal market), Article 165 TFEU (sports) and Article 207 TFEU (common commercial 
policy).  

Taken  as  a  whole,  the  objective  of  combatting  the  manipulation  of  sports  competitions 
contains  elements  of  prevention  and  cooperation  which  are  mainly  covered  by  Article  165 
TFEU and elements of cooperation and approximation which are covered by Articles 114 (for 
the non-criminal provisions), Article 207 TFEU (insofar as those provisions relate to access 
by third country betting operators) and Articles 82(1) and 83 TFEU (for criminal matters). 

Insofar  as  the  betting  services  are  concerned,  Articles  114  and  207  TFEU  may  be  relevant, 
depending on whether the services are "intra EU" or not.  It appears that the internal market 
aspect  is  more  prominent  in  the  Convention  as  a  whole,  whereas  the  common  commercial 
policy aspect appears to be present only in Article 11 of the Convention.  However, even if 
Article  207 TFEU  is  not  mentioned  and  considered  ancillary  to  the  internal  market aspects, 

L190, 18.7.2002, p.1; Council Framework decision 2003/577/JHA on the execution in the European Union 
of  orders  freezing  property  or  evidence,  OJ  L196,  2.8.2003,  p.45;  Council  Framework  Decision 
2006/783/JHA  on  the  application  of  the  principle  of  mutual  recognition  to  confiscation  orders;  Council 
Framework  Decision  2008/978/JHA  on  the  European  evidence  warrant,  OJ  L350,  30.12.2008;  Council 
Framework Decision 2009/948/JHA on prevention and settlement of conflicts of exercise of jurisdiction in 
criminal  proceedings,  OJ  L328,  15.12.2009,  p.42;  Directive  2014/41/EU  regarding  the  European 
Investigation Order in criminal matters, OJ L130, 1.5.2014, p.1; Directive 2014/42/EU on the freezing and 
confiscation of instrumentalities and proceeds of crime in the European Union, OJ L 127, 29.4.2014, p.39.  
15  Relevant legislative acts may include Directive 95/46/EC on the protection of individuals with regard to the 
processing of personal data and on the free movement of such data (OJL281, 23.11.1995, p.31.), Regulation 
(EC)  45/2001  on  the  protection  of  individuals  with  regard  to  the  processing  of  personal  data  by  the 
Community institutions and bodies and on the free movement of such data (OJ L 8, 12.01.2001, p.l.) and 
Framework Decision 2008/977/JHA on the protection of personal data processed in the framework of police 
and judicial cooperation in criminal matters (OJ L 350, 30.12.2008, p.60.). 

16  C-377/12, Commission v Council, paragraph 34. 
17 

Ibid, at paragraph 34 of the judgment.  

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Member  States  are  not  competent  to  the  relevant  aspects  which  fall  in  the  common 
commercial policy.  

As regards data protection, it is not the main objective of the Convention and its provisions 
are simply incidental.  Nowadays many Conventions of the Council of Europe will recall that 
data  protection  needs  to  be  respected,  even  if  such  obligations  may  flow  from  other 
Conventions as well (such as Convention No 108 for the Protection of Individuals with regard 
to Automatic Processing of Personal Data), insofar as the Parties to each Convention may not 
be identical. 

As a consequence, for the EU to exercise its competences over the entirety of the Convention 
(excluding the elements over which it would have no competence), the main substantive legal 
bases are Articles 82(1), 83(1), 114 and 165 TFEU. 

It  follows  from  the  intertwined  nature  of  the  Convention,  and  the  fact  that  it  involves 
competences which may be exclusive of the EU and competences not granted to the EU, that 
it is not possible for the Union or the Member States to conclude the Convention in isolation.   

3.2. The procedural legal basis 

Article 218(6) TFEU provides that the Council, on a proposal by the negotiator, shall adopt a 
decision concluding the agreement. 

Article  218(6)(a)  TFEU  provides  that,  where  an  agreement  'covers  fields  to  which  the 
ordinary  legislative  procedure  applies',  the  Council  shall  adopt  a  decision  concluding  the 
agreement after obtaining consent of the European Parliament.  

As shown above, the Convention on the Manipulation of Sports Competitions covers fields to 
which the ordinary legislative procedure applies.  

In  addition,  the  Council  decision  on  conclusion  is  subject  to  qualified  majority  voting 
pursuant to Article 218 (8) TFEU. 

3.3 

Conclusion 

The  legal  basis  of  the  present  proposed  decision  should  be  Articles  114  and  165  TFEU  in 
conjunction with Article 218(6)(a) TFEU.  

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2017/0166 (NLE) 

Proposal for a 

COUNCIL DECISION 

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 not 
related to substantive criminal law and judicial cooperation in criminal matters 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Articles 114 and 165 TFEU in conjunction with Article 218(6)(a) thereof, 

Having regard to the proposal from the European Commission, 
Having regard to the consent of the European Parliament18, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

(7) 

18 
19 
20 

Provisions  on  prevention  are  mainly  laid  down  in  chapters  II  and  III  of  the 
Convention.19 These provisions may potentially be covered, in full or to a large extent, 
by Article 165 TFEU. It is to be mentioned that Article 165 TFEU is only a supportive 
competence which excludes any harmonization measures and does not supersede the 
competences of Member States in these areas.20  

Other measures, notably Articles 9, 10 (1) and (3) and 11 of the Convention contain 
some limited approximation of laws which can be covered by Article 114 TFEU.  

Article  11  may  also  affect  services  provided  from  a  third  country.  The  measures  in 
question,  which  concern  directly  "access"  of  such  services,  are  covered  by  common 
commercial  policy  (Article  207  TFEU).  Member  States  are  not  competent  to  the 
relevant aspects which fall in the common commercial policy.  

Article  14  on  data  protection  comes  under  the  Union's  competence  according  to 
Article 16 TFEU and is also exclusive in nature.  

The  European  Union  is  promoting  the  Council  of  Europe  Convention  on  the 
manipulation of sports competitions, as a contribution to the European Union's effort 
to combat the manipulation of sports competitions in order to protect the integrity of 
sport and sports ethics in accordance with the principle of autonomy of sport. 

In  accordance  with  Council  Decision  [……..]  of  [………]  the  Council  of  Europe 
Convention on the manipulation of sports competitions signed by […] on […], subject 
to its conclusion at a later date. 

Certain  provisions  of  the  Convention  concern  substantive  criminal  law  and  judicial 
cooperation in criminal matters and therefore fall within the scope of Title V of Part 
Three of the TFEU. A separate Decision relating to those provisions is to be adopted 
by the Council in parallel to this Decision. 

OJ C , , p. . 
But see also Articles 27 and 28 on cooperation outside criminal matters.  
See Article 2 (5) TFEU.  

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(8) 

The Convention should be approved on behalf of the Union. 

HAS ADOPTED THIS DECISION: 

Article 1 

The  Council  of  Europe  Convention  on  the  Manipulation  of  Sports  Competitions  is  hereby 
concluded on behalf of the Union. 

The text of the Convention is attached to this Decision. 

Article 2 

The President of the Council shall designate the person empowered to proceed, on behalf of 
the European Union, to the deposit of the instrument of approval provided for in Article 32 of 
the  Convention,  in  order  to  express  the  consent  of  the  European  Union  to  be  bound  by  the 
Convention. 

Article 3 

This  Decision  shall  enter  into  force  on  the  day  of  its  adoption.  It  shall  be  published  in  the 
Official Journal of the European Union. 

Done at Brussels, 

For the Council 
The President 

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