European Union
The European Union (EU) is a transnational organisation established to reach certain goals and uphold values. Bringing together European states, creating an “internal market”, and establishing economic and monetary union are its principal aims.[1] The EU has the power to set policies, pass norms, decide on these norms, and execute the preceding. The organisation performs these roles through various institutions, such as the European Council, the Council of the European Union, the European Commission (EC), the European Parliament, and the Court of Justice of the European Union (CJEU).[2]
Although the internal market seems to be the focus of the EU, with its specific norms for the free movement of capital, services and workers and their application,[3] culture and sport also appear within the list of competencies of the EU. According to the Treaty on the Functioning of the European Union (TFEU), the EU may support, coordinate or supplement the actions EU member states concerning former.[4] Crucially, the EU cultural policy and norms emphasise the “cultural and creative sectors”, which include video games.[5] Likewise, sport has a special place in the EU as it aims to “contribute to the promotion of European sporting issues, while taking account of the specific nature of sport, its structures based on voluntary activity and its social and educational function”.[6] The CJEU has the potential to impact European and World sport through, as in the case of the famous Bosman ruling by the then-European Court of Justice.[7] Moreover, the EU has made clear its view of sport, as well its governance and legal aspects, by adopting documents, such as the White Paper on Sport.[8]
Esports, video games and the EU: the norms
The reason why the final paragraph of the previous section touched upon the policy, norm, culture and sport aspects of the EU is that in 2022, the European Parliament passed a resolution on esports and video games following a report by its Committee on Culture and Education (CULT).[9] Having regard of a multitude of EU norms, including the TFEU articles on culture and sport mentioned above, the resolution went on to emphasise the growing importance of the video games sector in Europe. Relatedly, the resolution considered esports to be a part of the video games sector, along with the culture and media sectors. The crux of the matter is that the document indicated that “esports differ from sports in that they are digital by definition” and that “esports and sport are different sectors”.[10] In a sense, the resolution divorced the “sports” aspect of esports from its “electronic” aspect.
Generally, the 2022 resolution is both hopeful and careful as to esports and video games’ place in the EU. The hope derives from the fact it recounted the possible educational, cultural, economic, and societal effects of esports and the video games sector. The claim that “the video game sector is an important industry for discovering and developing new creative talent” is also crucial for the economic dimension of the EU. Nevertheless, video game addiction and toxic behaviour appear as possible negative outcomes in the resolution. Likewise, much-criticised points, such as gender stereotypes in video games, working conditions in the video games industry, mental health, and safety of the workers, as well as loot boxes and safeguarding children, found themselves a place in the resolution.
Esports, video games and the EU: the possible legal issue
The previous section noted that the EU considers esports and sports separate activities. Notwithstanding the recognition of the potential of virtual versions of sports in the resolution mentioned above and the International Olympic Committee,[11] the European Parliament does not consider esports a sporting activity. Without speculating as to reasons why this is the case, it can be claimed that this stance indirectly coincides with the views of the CJEU on sport, but it also has the potential to clash with it. Considering whether the English Bridge Union can be deemed a sport association and thus be exempt from certain taxes in the United Kingdom, the court indicated that to be recognised as a sport, an activity must include a physical element that is not negligible.[12] The legal problem is that the virtual versions of sports where players have to replicate the physical movements of their real-life counterparts engage in a physical activity. Such esports activities do include a physical element that is not negligible. Then, one might ask: a) What would the legal status of an association that organises esports activities based on the virtual versions of a given sport that replicates the physical element be?; b) would these esports players be legally sportspersons?; and, c) would these activities be counted as sports for legal purposes?
Nonetheless, the CJEU presented a limitation to the prevalence of the physical element in the interpretation of an activity. The court underlined that even where there is no physical element in an activity, an activity can be a sport for legal purposes if it is ingrained in the history and culture of the relevant member state.[13] This point creates and issue for esports activities because the European Parliament resolution maintained that “esports is still a young phenomenon”.[14] Hence, unless a member state expressly recognises esports as a sport through its norms,[15] legally, esports would remain as a video game-related activity rather than a sport. This situation can result in esports not enjoying the advantages that the persons and entities engaging in sporting activities do.[16]
When one takes an EU law-sensitive perspective, it can be noticed that esports’ position before the law is unclear. On the one hand, in view of the official stances of the European Parliament and the CJEU, most esports activities would have difficulty convincing the legal authorities that they are sports. Moreover, the difficulty in defining esports and its elements exacerbates the problem.[17] Yet, video games and the esports activities based on them are evolving. At times, they are trying to replicate sports. Consequently, while esports may not enjoy the advantages of being a sport in some EU member states or before the EU, the future may change the legal situation. Through its competences over the internal market, culture or sport, the EU might aim to harness the power of esports and mitigate its downsides.
[1] Consolidated Version of the Treaty of the European Union, art 3. <https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12016M/TXT> accessed 16 September 2024
[2] European Union, ‘Types of institutions and bodies’ <https://european-union.europa.eu/institutions-law-budget/institutions-and-bodies/types-institutions-and-bodies_en> accessed 16 September 2024
[3] Consolidated version of the Treaty on the Functioning of the European Union, arts 21 and 101-109 <https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12012E/TXT> accessed 16 September 2024; Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EE <https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32004L0038> accessed 15.09.2024; EU, ‘Court of Justice of the European Union’ <https://european-union.europa.eu/institutions-law-budget/institutions-and-bodies/search-all-eu-institutions-and-bodies/court-justice-european-union-cjeu_en> accessed 16 September 2024
[4] ibid, Consolidated version of the Treaty on the Functioning of the European Union, arts 6 and 167.
[5] Regulation of the European Parliament and of the Council establishing the Creative Europe programme (2021 to 2027) and repealing Regulation (EU) No 1295/2013, art 2(2) <https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52018PC0366> accessed 16 September 2024
[6] Consolidated version of the Treaty on the Functioning of the European Union (n 3) art 165
[7] Case C-415/93 Bosman [1995] ECR I-4921
[8] White Paper on Sport {SEC(2007) 932} {SEC(2007) 934} {SEC(2007) 935} {SEC(2007) 936} <https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A52007DC0391> accessed 16 September 2024
[9] European Parliament resolution of 10 November 2022 on esports and video games (2022/2027(INI)). <https://www.europarl.europa.eu/doceo/document/TA-9-2022-0388_EN.html> accessed 15.09.2024; Report on esports and video games (2022/2027(INI)) <https://www.europarl.europa.eu/doceo/document/A-9-2022-0244_EN.html> accessed 16 September 2024
[10] ibid, arts R and 28
[11] ibid, art. 34; International Olympic Committee, ‘IOC makes landmark move into virtual sports by announcing first-ever Olympic Virtual Series’ (22 April 2021) <https://olympics.com/ioc/news/international-olympic-committee-makes-landmark-move-into-virtual-sports-by-announcing-first-ever-olympic-virtual-series> accessed 16 September 2024
[12] Case C-90/16 The English Bridge Union v. Commissioners for Her Majesty’s Revenue & Customs [2017] ECLI: EU: C: 2017: 814, para 27
[13] ibid, para 28
[14] Resolution on esports and video games (n 9), art Q
[15] T Shinohara, The Role of the European Union for the Governance of the Esports Society? [2024] 1:1 Sports Law and Governance Journal 1, 10
[16] C Abanazir, ‘E‑sport and the EU: the view from the English Bridge Union’ [2019] 3:4 The International Sports Law Journal, 102–113
[17] Shinohara (n 15) 3-6
