C Explanatory memorandum
by Mr Büchel, rapporteur
1 Introduction
1. The manipulation of sports
competitions not only constitutes a major threat which tarnishes
the reputation of sport and curtails sport values but has also become
a dangerous playground for transnational organised crime, including
feeding terrorism. Strong political will and efficient tools are
needed to fight against it in a serious and comprehensive manner.
2. Over five years have passed since the Council of Europe Convention
on the Manipulation of Sports Competitions (CETS No. 215, Macolin
Convention
Note) was opened to signature and ratification.
To date only 7 member States - Norway (2014), Portugal (2015), Ukraine
(2017), Moldova (2019), Switzerland (2019), Italy (2019) and Greece
(2020) - have ratified the Convention; 31 countries have signed
it, including a non-member State, Australia. However, 10 member
States
Note have
so far ignored the Convention for one reason or another.
3. The ratification process has been seriously hampered by Malta’s
veto on the European Union’s ratification because of a contested
definition in the Convention, which hits on its national interest
in gambling revenues.
4. This years-long deadlock situation must come to an end. The
Macolin Convention entered into force on 1 September 2019 and the
Follow-up Committee will soon start functioning as the monitoring
body within its agreed mandate and scope of action. This makes it
ever more important to actively promote its ratification and implementation,
as a necessary step to uphold sports integrity and ethics. Together
with many stakeholders, I believe there are no valid legal grounds
under EU law to Malta’s veto. The matter is purely political and
needs a political response.
5. On 21 November 2019, the EU Council meeting of sports ministers
agreed to “examine ways, together with the Commission, to solve
the deadlock with regard to the Council of Europe Convention on
the Manipulation of Sports Competitions, which entered into force
on 1 September 2019, in view of enabling the EU and all its Member
States to complete their respective ratification processes and accede
to the Convention as soon as possible”. I welcome this development
and hope it will be followed by concrete steps.
6. The time to act is now: be it for the European Union, its
individual member States, or the remaining 16 member States of the
Council of Europe who are not bound by the EU standstill and whose
representatives voted unanimously for the Assembly’s
Resolution 1876 (2012) on the need to combat match-fixing, which cautioned
not to regard match-fixing as a minor offence and called for the
“introduction of a binding international legal instrument and of
a stable co-operation platform to preserve sport’s integrity and
values?”.
Note
7. Unfortunately, the deadlock within the EU is also diverting
attention from a number of matters of utmost urgency that require
swift collective targeted action of the various stakeholders involved,
such as the need for introducing a robust and trustworthy sports
betting integrity regulatory framework, creating efficient and legally binding
data exchange and intelligence sharing mechanisms, developing effective
protected reporting systems in sport or settling the various issues
related to transparency and conflict of interest.
8. In the chapters below, I intend to analyse the severe consequences
that any further delays in finding an institutional solution within
the EU bodies might bring, and to propose various avenues for consideration
by both the European Union and the member States. Furthermore, I
endeavour to look beyond the ratification of the Convention and
suggest some lines of action for the various stakeholders.
9. In the course of preparing this report, the committee held
three hearings and I carried out two fact-finding visits: to Switzerland
in May 2019 and to Brussels and Strasbourg in February 2020. I wish
to thank all the organisations and persons I met during those visits,
and in particular Ms Mariya Gabriel, EU Commissioner for Innovation,
Research, Culture, Education and Youth; Mr Alexander Čeferin, President
of the Union of European Football Associations (UEFA), Mr Andreas
Zagklis, Secretary General, International Basketball Federation
(FIBA); Mr Vangelis Demiris, Cabinet member of Mr Margaritis Schinas,
Vice-President of the European Commission for Promoting our European
Way of Life; Ms Thérèse Blanchet, Director General of the Legal
Service of the Council of the European Union; Mr Lucio Gussetti,
Director of the Legal Service of the European Commission and Mr Yves
Le Lostecque, Head of Sport, DG for Education, Youth Sport and Culture of
the European Commission; and Mr Matthias Remund, Director of the
Swiss Federal Office of Sport, for their open and constructive discussions.
Note I
also wish to thank the many experts who took part in the committee hearings.
Note Finally,
my special gratitude goes to Ms Gabriella Battaini-Dragoni, Deputy
Secretary General of the Council of Europe for her continuous institutional
support, and to Mr João Paulo Almeida, Olympic Committee of Portugal,
Mr Philippe Vlaemminck, Pharumlegal, Mr Jörg Polakiewicz, Director
of Legal Advice and Public International Law, Council of Europe,
and the team of the Children’s Rights and Sport Values Department
of the Council of Europe for their valuable contributions to drafting
this report.
2 Lack of political response to the growing
threat
10. Cheating in sport and manipulation
of sport competitions have existed since the dawn of times
Note and have been embedded in the world
of sports ever since. It is the advent of new technologies and expansion
of the online sports betting market along with widespread betting
opportunities, regulatory vulnerabilities and low awareness within
a booming sports market that have heralded a new and increased dimension
to this threat through illegal betting markets and organised crime.
11. Betting-related competition manipulation is a huge menace
to sports integrity. Today it directly implicates organised crime
and increasingly transnational criminal networks. According to Europol,
betting and money-laundering related sports corruption is among
the main illegal activities of criminal groups. All main organised criminal
groups in Europe
Note have illegal activities
in the betting and sport sectors.
NoteNote It is estimated that 82% of global
sports bets are illegal
NoteNote and more than 80% of those operators
that do have a licence, are licensed in low-oversight gambling havens
– in Europe, many in Malta.
12. Sports betting is not to blame per se. Nor is the possibility
to place bets worldwide allowing people to engage in real-time betting
in competitions held anywhere across the globe to be condemned.
What is of concern is the rapid proliferation of the illegal and
sometimes suspicious online betting operators (though formally legal)
mostly licensed by weakly regulated gambling havens operating on
a cross-border basis in jurisdictions where they have no license;
and this phenomenon makes the manipulation of sports competitions the
biggest single threat to the integrity of international sport.
13. The above, coupled with a number of weaknesses in the governance
of sport, co-operation between public authorities, the sports movement
and betting operators and fragile regulation of sports betting markets in
many jurisdictions, has opened enormous opportunities for potential
low risk and high-profit gains. Online betting allows operators
a great degree of anonymity, notably the Darknet, and the ability
to swiftly move operations from one regulatory regime to another
if pressure is applied by the authorities. It is relatively cheap and
simple to set up a betting website, providing a perfect means to
both fund other criminal enterprises and to help launder the proceeds.
Note
14. The profits are enormous: the amount wagered illegally on
sports betting varied between 340 billion and 1,7 trillion USD in
2017.
Note
15. Betting and betting-related manipulation of competitions is
also expanding across sports – whereas only a decade ago, football
took 98% of the bets, today a huge number of betting operators offer
bets on more than 50 different sports, with football representing
only 65% of the betting market
.Note Football, tennis and cricket have traditionally
been the target fields of competition manipulation; however, today
basketball, handball, ice hockey and volleyball and increasingly
also competitions with minors and many other sports (table-tennis,
badminton, hockey, snooker, e-sports, etc) appear to be in the radar
of fixers.
16. The same expansion is also reflected in the alerts on suspicious
betting activities. The GLMS statistics reveal that of the 579 alerts
concerning Europe in 2019, football received 450, basketball 62,
ice hockey 22, tennis 16, volleyball 5, handball and table tennis
4, e-sport 3 and badminton 2.
Note These are just
some figures that show the magnitude of the problem today. No country
could fight alone against this expanding phenomenon.
17. However, the manipulation of sports competitions is not only
international or betting-related; it touches absolutely every level
of sports practice – from grassroots to high performance level –
in multiple forms. Therefore, as laid down in the preamble of the
Macolin Convention, public authorities have a responsibility to protect
the integrity of sport and for that purpose make sports organisations,
governmental bodies, law enforcement, prosecutors, betting operators
and data providers work closely together in order to prevent, detect,
and prosecute perpetrators and offenders. This is a huge and complex
task – as much at local and national as at international level.
18. Given the enormous financial flows feeding corruption and
crime, and considering the magnitude of the risks it represents
to society and to sport, the fight against the manipulation of sports
competitions - including organised crime infiltration into the sports
sector and all the threats that this entails to public order, gambling consumers
as well as responsible betting operators - must be considered a
priority issue both at national and international level, for it
concerns the very fabric of sports values. If these values are undermined,
they also undermine the values of the European societies: democracy,
the rule of law and human rights.
3 Challenges
to the ratification of the Macolin Convention
19. The Macolin Convention is definitely
the most advanced and comprehensive international-level initiative to
meet the challenges of fighting sports-betting-related criminal
risks. It aims to prevent, detect and sanction competition manipulation
as well as to improve information exchange, national and international
co-operation between relevant stakeholders involved in sport and
in sports betting, whistle-blowers protection, education and prevention,
capacity building, conflict of interest measures against illegal
sports betting, robust reporting systems, etc. Its implementation
will be of pivotal importance for keeping sport safe, credible and
socially valued, and yet, its ratification process has seen a succession
of difficulties.
20. These difficulties stem at least in part from objective elements
of complexity, such as the need for the involvement of numerous
stakeholders, considerable human and financial resources, substantial
legislative amendments, setting-up national platforms and mechanisms
that would guarantee the implementation of its provisions. The pressures
from the lobby of betting operators was probably an additional obstacle.
However, it is clear that Malta has to date been successful in preventing
more than half of the member States of the Council of Europe, through
the interpretation of the EU internal regulations, from joining
a treaty duly adopted under the Council of Europe Statute. This
is a challenge for the co-existence of the European Union acquis and the Council of Europe’s
unique treaty-based system. We need to find the right answer to
this challenge, also in the spirit of the institutional co-operation
that the 2007 Memorandum of Understanding between the Council of
Europe and the European Union is intended to promote.
3.1 Malta’s
blocking position
21. Malta, whose economy is heavily
dependent on betting revenues, claims that the definition of “illegal sports
betting” goes beyond the scope of the Macolin Convention and does
not contribute to the fight against match-fixing. At the EU level,
it also argues that, contrary to the overwhelming case law of the
Court of Justice of the European Union (CJEU), betting services
should benefit from free movement under the Internal Market rules
whereby a service licensed in one member State should be accepted
in all others. However, it is perfectly clear from the jurisprudence
of the CJEU that the principle of mutual recognition is not applicable
in this area.
22. Article 3.5.a of the Convention defines illegal sports betting
as “any sports betting activity whose type or operator is not allowed
under the applicable law of the jurisdiction where the consumer
is located”. This definition indeed bears consequences to the Maltese
gaming sector, since the majority of Maltese-registered online gaming
companies take bets in a wide variety of countries.
23. There is an international consensus on the fact that betting
companies that want to operate legally cannot disregard the legislation
of the jurisdiction where their customers are located. However,
Malta challenged this principle at all stages of the preparation
of the Convention. At its adoption by the Committee of Ministers,
Malta requested a vote and was outvoted. Thereafter, it filed in
July 2014 a request for opinion with the CJEU under article 219
(11) of the Treaty of the Functioning of the European Union (TFEU)
with a view to clarifying whether the Convention and in particular
the definition of “illegal sports betting”, read in conjunction with
the Convention’s betting provisions (articles 9 and 11), was compatible
with the EU Treaties. It withdrew this request a year later arguably
in anticipation of an unfavourable CJEU ruling. The case law of
the CJEU includes over 40 preliminary rulings on gambling, which
support that this definition does not cause any issue under European
law. The problem is not a legal but a purely political one, and
it needs to be handled as such. The Macolin Convention is legally
neutral, and the vested interests of one single member State should
not prevail on the general interest, common to all the others.
24. After the change of government in Malta and having received
some indication of a possible new openness of the Maltese authorities
to end the deadlock, I met on 29 January 2020 with the Maltese Permanent Representative
to the Council of Europe in Strasbourg, Ambassador Joseph Filletti.
I received no indication that Malta was considering lifting the
current veto at the Council of the European Union. However, Ambassador Filetti
confirmed that the Maltese authorities were preparing a new proposal,
which they intended to submit to the competent Group of Rapporteurs
of the Committee of Ministers (namely the GR-C) for consideration.
This discussion took place on 10 March 2020.
25. The Maltese authorities’ suggestion would be to amend the
Macolin Convention to “clarify” the definition of “illegal sports
betting” following the procedure of article 38 of the Convention,
Note once
the Follow-up Committee has assumed its functions. To date, Maltese
authorities have not communicated a precise text to me or to the
Committee of Ministers. However, the idea - as explained orally
- would be to state that, for the purposes of the Convention, an
illegal sports betting activity is one that is related to the manipulation
of sports competitions.
26. I believe it would be anomalous and unwise to open a procedure
under article 38 of the Convention just shortly after the coming
into effect of the latter and even more so on an issue that was
amply debated during its negotiation. Amendments to a convention,
if any, should build on the experience gained through its implementation
and be aimed at strengthening the system and at ensuring its consistency
with evolving situations, but certainly not at weakening it. Instead,
any text following the Maltese approach would deactivate the existing
definition of illegal sports betting and significantly weaken the
system established by the Convention, voiding de
facto its Article 11 and reducing considerably the scope
of the exchanges of information referred to by articles 9.1 a) and
12.3. Indeed, it would make the enforcement of criminal laws of
other member States dependent on the proof of a “manipulation”,
thus counteracting any national legislation prohibiting (certain
forms of) betting to protect public order or consumers and hampering
the possibility for member States to implement effectively their
own gambling laws and policy.
27. Furthermore, engaging in a formal amendment procedure could
lead some States to suspend the ratification process thus curtailing
a positive dynamic that was difficult to initiate. This would paralyse
the effective implementation of the Convention and, in addition,
set an unfortunate precedent, which would challenge the decision-making
process of the Council of Europe, create an imbalance between EU
and non-EU member States and pave the way to other possible challenges
against new Council of Europe conventions after their adoption.
This is not acceptable.
28. I recall here the Assembly’s
Recommendation 2114 (2017) “Defending the
acquis of
the Council of Europe: preserving 65 years of successful intergovernmental
co-operation” which ends with the call on Council of Europe member
States “to abstain from any voluntary action which would result
in the weakening of the intergovernmental co-operation which has
contributed so much for many decades to effectively uniting the European
continent”.
29. That being said, I must recognise the positive steps the Maltese
government and parliament have taken in the fight against the manipulation
of sports competitions. In 2019, following the entry into force
of the “Prevention of Corruption in Sport Act” in the previous year,
the Maltese Parliamentary Secretariat for Sport decided to unify
the approach to integrity in sport by creating a single agency as
of 2021 to deal with anti-doping, anti-match-fixing, legislation
and investigation and policy and education. This new body will also represent
Malta in the Group of Copenhagen, which I read as a positive sign
of the Maltese authorities towards the ratification of the Macolin
Convention.
3.2 The
positions of the European Union institutions
30. At the European Union level,
the main obstacle to ratification is not a regulation that can be
amended, but a pending decision of the EU Council, which is blocked
following a legal opinion by the EU Council legal services.
31. The Macolin Convention is considered as a “mixed-competence
treaty”, which involves some "exclusive EU competences"
Note and some “shared competences”
Note and
upon these grounds should be ratified by both the European Union
and the EU member States. The EU Council is expected to authorise
the European Union to sign the Convention.
32. Due to a duty of loyal co-operation, stemming from Article
4(3) of the Treaty of the European Union, the EU member States should
refrain from ratifying the Convention until an agreement is found
on an EU signature. A controversial legal opinion by the European
Union Council legal services (2015) reportedly concludes that the
decision to allow the EU to sign mixed-competence treaties requires
a “common accord” that is a unanimous consent of all member States
to be bound by the Convention with respect to their national competences
before the Council could proceed with the adoption, by a qualified
majority, of decisions concerning the Union. This is what Malta
has been arguing about.
33. Most EU member States are not ready to ignore this legal opinion
or to overrule it. Nor have any of the member States, the Commission
or the European Parliament been ready to seek an ultimate clarification
from the CJEU in this specific case. They are now waiting for the
CJEU Opinion on the Council of Europe Istanbul Convention
Note requested recently by
the European Parliament to clarify the question on the conclusion
of a mixed competence treaty and the application of a common accord
requirement.
Note All the same, member States appear to be
annoyed by Malta’s blocking of the ratification of the Macolin Convention.
Nonetheless, from an institutional perspective, owing to this requirement
of unanimity, they feel enabled to prevent the signature by the
European Union of a mixed-competence treaty proposed by the European
Commission.
34. The relevant case law of the CJEU has held that the adoption
of a decision authorising the European Commission to negotiate a
multilateral mixed-competence agreement on behalf of the European
Union marks the start of a concerted EU action at international
level. As soon as a matter is discussed within the EU institutions,
the member States are obliged to refrain from acting individually.
Note However,
there are also strong arguments against this position. Advocate
General Maduro in the case of Commission v. Sweden C-246/07 stated
that member States “must not be caught in a never-ending process,
in which a final decision by the Union is postponed to the point
of inaction. If that proves to be the case, a decision should be
deemed to have been taken and MS should be allowed to act”.
35. The European Commission disagrees with the “common accord” approach
of the European Council and deems that the decision should be taken
by a qualified majority, as specified in Article 218(8) TFEU, which provides
that the EU 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. The Macolin
Convention covers fields to which the ordinary legislative procedure applies.
Note In this respect the EU Council
decision on conclusion should be subject to qualified majority voting pursuant
to Article 218(8) TFEU.
36. In simplified terms, it appears that both EU institutions
agree on using a qualified majority for voting on the EU’s accession
to the Macolin Convention; however, the Council requires the prior
consent of all its member States bound by the Convention and the
European Commission would recommend a direct qualified vote.
3.3 Possible
avenues to end the European Union stalemate
37. It is not my role to take a
stand on the European Union applicable provisions and their interpretation. However,
from a political perspective, I would suggest that an arguable legal
solution should be preferred to an alternative legal approach which
leads to a stalemate benefiting only one EU member State. With the coming
into force of the Macolin Convention and the imminent launch of
the Follow-up Committee in autumn 2020, the European Union has every
interest to break the deadlock and accelerate its accession to this
Council of Europe treaty. I believe this would be the right course
of action and hope that this will be their decision.
38. If, however, no breakthrough is found quickly enough with
Malta, we should strongly encourage other EU member States to follow
the example of Portugal, Italy and Greece and to ratify the Convention
without waiting for a positive decision from the EU Council. It
may be argued that in the case of treaties involving shared competences
that are “inextricably linked”, the duty of loyal co-operation would
entail that neither the Union nor its member States can go ahead
individually and become a party. Indeed, this is the foundation
of the deadlock situation that Malta wishes to maintain; however,
the practice in this area does not seem to be univocal. The European
Commission could in theory open an infringement procedure against
those countries which could decide to go for the ratification; but
it has no good reason to do so. The Commission does not seem in
favour of the stalemate, it has not reacted when Portugal decided
to ratify and have not deemed appropriate to do it after the ratification
of two other EU member States. As far as I am aware, a growing number
of governments are considering bypassing the EU Council decision
and ratifying the Convention. If a few more member States would
take that decision, I trust that many others would follow suit.
3.4 Co-existence
of the Council of Europe treaty-making procedures and the European
Union acquis
39. The persisting stalemate inevitably
evokes the question of the European Union participation in Council of
Europe treaties. Under the 2007 Memorandum of Understanding, the
Council of Europe and the European Union have developed a “strategic
partnership” based on three pillars: political dialogue, co-operation
projects and legal co-operation. The Memorandum of Understanding
recognises that “legal co-operation should be further developed
with a view to ensuring coherence between European Union law and
the standards of Council of Europe conventions”.
40. The very nature of the EU law and its distinct legal order
raises complex legal issues for any treaty-making in the Council
of Europe. On the European Union side, there are concerns not to
compromise its own normative acquis,
the autonomy and supremacy of the EU law and the EU’s legislative
process. For the Council of Europe, it is important to preserve
its long-standing practice of inclusiveness and participation, on
an equal footing, of all Council of Europe’s member States in the
drafting, implementation and monitoring of common European standards.
41. Due to the increase of EU competences under its Maastricht,
Amsterdam and Lisbon treaties, almost all Council of Europe conventions
nowadays contain at least some provisions falling within exclusive
EU competence and would thereby require to be treated as “mixed-competence”
treaties. To require consensus by the European Union and all its
EU member States for the conclusion of a particular Council of Europe
treaty would mean in practice – as is the case today with the Macolin
Convention – that a single Council of Europe member State that is
also a member of the European Union could prevent more than half
of the Council of Europe member States from joining a treaty duly
adopted under the Statute. Such an outcome not only affects the
treaty-making procedures within the Council of Europe, but it may
also contradict principles of both international and EU law. Applicable
procedures under article 218 TFEU foresee decision-making by qualified majority
and not by unanimous agreement of all EU member States. From an
international law point of view, it may be considered to invoke
the concept of “good faith”.
42. It would also be important to clarify the position of the
European Union and its member States in follow-up and monitoring
bodies set up under Council of Europe treaties. The adoption of
certain of their decisions may fall under article 218 (9) TFEU and
thus require decisions in the EU Council before the EU member States may
adopt them in Strasbourg. What are the consequences in the case
that the EU Council does not adopt a certain position when it is
required to do so under article 218 (9) TFEU? Would the fact that
the EU Council could not agree a position mean that EU member States
vote as they please, or would it paralyse the entire process in
the treaty body in question? These are EU internal matters, which
nevertheless have the potential to affect the functioning of the
Council of Europe mechanisms.
43. In 2017, the Assembly in its report of the Committee on Rules
of Procedure, Immunities and Institutional Affairs entitled “Defending
the
acquis of the Council
of Europe: preserving 65 years of successful intergovernmental co-operation”
Note (Rapporteur: Mr Tiny Kox, Netherlands,
UEL) highlighted the need to “clarify the rules covering the entire
process of drawing up or revising conventions to take greater account
for example of the needs of non-member States and of the European
Union’s executive powers so as to avoid any blocking of the process
of preparing and ratifying conventions”.
44. Furthermore, in its
Recommendation
2114 (2017), the Assembly called upon the Committee of Ministers to
prepare “an analysis of the desirability of a European Union–Council
of Europe memorandum of understanding on the participation of the
European Union in Council of Europe conventions which could provide
for general operating rules (such as voting rights, speaking rights,
reporting, and financial arrangements)”.
45. I regret that the Committee of Ministers has not so far followed
this recommendation by the Assembly and I urge them to revisit the
idea of either concluding a specific Memorandum of Understanding
or adopting a statutory resolution in order to clarify those incompatibilities,
which are already proving harmful to the credibility of the Council
of Europe treaties.
4 The
dangers and consequences of further delays in the ratification process
46. The five years of unnecessary
delays in the ratification process have already resulted in a number
of negative evolutions, which risk diluting the essence of the Macolin
Convention.
47. At the political level:
- The
political impasse has brought some stakeholders to use aspects of
the Convention, which has led to a proliferation of partial solutions,
at times responding to the most urgent problems, but failing to establish
a systematic, collaborative and consistent process.
- The political stalemate has had a detrimental effect in
some member States that have ratified the Convention but have experienced
a slowdown in setting up their formal national platforms or in a comprehensive
implementation of the provisions of the Convention pertaining to
the adoption, enforcement and compliance of domestic law relating
to the manipulation of sports competitions.
- The delay between the adoption of the Convention and its
entry into force has led certain stakeholders to consider that some
of the issues could be re-opened for debate, notably the definition
of illegal sports betting, as required by Malta.
- Some stakeholders have convinced themselves that it may
even be possible to avoid ratifying the Convention and that implementing
its principles would suffice.
48. At the legal level:
- More
than 30 National Platforms exist today. Through the so-called “Group
of Copenhagen”, the Council of Europe has established an informal
co-operation framework that is helping these platforms to align with
the Convention provisions. However, international co-operation to
enforcing law and order and taking legal action against organised
crime cannot be done on the basis of informal arrangements only; it
requires a binding legal framework that only the Convention can
offer.
- The Convention is intended to provide a legal basis to
the exchange of information (including personal data), which are
crucial for effective criminal enquiries and pursuits. In the absence
of ratification, a lot of useful information might become unavailable
for investigation and prosecution.
49. This is a dangerous game, which plays into the camp of manipulators
and criminal networks who thrive on legislative and operational
loopholes and profit from the lack of a common front. Partial solutions
are no solutions. The fight against competition manipulation can
only be dealt with effectively if a large number of States ratify
the Macolin Convention and take the necessary measures to set up
strong, independent and professional multidisciplinary national
platforms, proper monitoring systems, sanctioning measures, awareness
and education programmes and adequate international co-operation
moving from the good will of a few stakeholders working in silos
to the capacity and effectiveness of an independent network system
able to provide a global response to a global threat as laid down
in the preamble of the Convention.
5 Moral
commitment by the Council of Europe institutions
50. The much delayed coming into
force of the Macolin Convention makes me wonder whether the Council of
Europe fully employed all the avenues to resolve the difficulties
connected with the EU accession and pulled all efforts to spur the
accession of non-EU member States to the Convention. The last Conference
of the Council of Europe Ministers responsible for Sport, held in
Tbilisi in November 2018, stressed “the importance of the rapid
entry into force of the Council of Europe Convention on the Manipulation
of Sports Competitions” (paragraph 23) and invited the Committee
of Ministers to “call upon the member States that have not done
so yet, to sign and ratify the Council of Europe Convention on the
Manipulation of Sports Competitions” (paragraph 24.d.).
Note However, this
was (and is) not sufficient.
51. We might wish to call upon the EU Council’s ministers to end
the deadlock at the EU level; but our priority should be to place
sport competition manipulation far higher on the political agenda
of the Council of Europe itself and of its member States.
52. Our Assembly has its own role to play to reach out to lawmakers
on sport manipulation issues and to raise awareness on the benefits
of ratifying and efficiently implementing the Convention. This would
require stronger responsibility and commitment from individual parliamentarians
and parliaments, but also synergies and pooling of good practice
through an inter-parliamentary forum for awareness and discussions.
53. At a committee hearing on 25 June 2019, the Deputy Secretary
General of the Council of Europe, Ms Gabriella Battaini-Dragoni,
underlined that with the then six ratifications and another 31 signatures,
most member governments had done their homework. The ball was in
the camp of national parliaments who should ratify this important
Council of Europe treaty. However, I fear that sport issues lie
even lower on national parliaments’ agendas, being often hidden
in diverse parliamentary committees and rarely getting the attention they
deserve (mostly only as reaction to scandals in the media). I therefore
strongly support the idea that the Assembly should organise an inter-parliamentary
conference, bringing together the chairs and rapporteurs of all
relevant parliamentary committees of national parliaments of the
Council of Europe member States in order to highlight the importance
of overcoming the obstacles related to the ratification and implementation
of the Macolin Convention.
54. We should also bear in mind Assembly
Resolution 2199 (2018) “Towards a framework for modern sports governance”,
Note which regretted that there was too
little co-ordinated parliamentary action or international parliamentary
partnership that would allow parliamentarians to have a credible
stakeholder voice in the current debate on sports governance and
integrity outside the scope of individual reports.
55. Time is precious. The Council of Europe should seize the momentum
of the recent entry into force of the Macolin Convention and the
imminent launch of the Follow-up Committee to reach out to all its
member States through a strong political advocacy campaign.
56. Over the two years that I have followed this file, I have
been impressed by the dedication and the amount of work that the
responsible Council of Europe secretariat has put into doing the
preparatory work for setting- up the structures, polishing concepts,
facilitating the setting-up of national platforms, running the KCOOS+ (Keep
Crime out of Sports) outreach project with different stakeholder
groups. All this has been done with extremely limited human resources.
I appeal to the Organisation to provide adequate resources that
would enable much wider advocacy and putting in place a proper communication
strategy on the Convention within and beyond the Organisation, carrying
out monitoring under the mandate of the new Follow-up Committee
and expanding the highly valued KCOOS+ project.
Note
6 Looking
beyond the ratification of the Macolin Convention
57. The Convention’s Follow-up
Committee will start working in autumn 2020. Albeit small in its
initial composition (possibly seven parties to the Convention),
it will have to not only agree on its terms of reference and rules
of procedure, but it will also have to take many bold decisions
that will have a long-term effect. This committee will be the first
and a unique standard-setting body to give a global response to
tackle sports competition manipulation, the role of which will be
to resolve many pending issues through multi-stakeholder dialogue
and to guide the different energies into finding innovative solutions.
58. Unfortunately, not all well-functioning National Platforms
of the Group of Copenhagen will be able to participate in the work
of the Follow-up Committee from the outset. Article 30.3. of the
Convention grants the right to the Follow-up Committee to invite,
by a unanimous decision, any State which is not a Party to the Convention,
any international organisation or body, to be represented by an
observer at its meetings. They will, however, participate without
the right to vote. Signatory parties cannot automatically participate
in the deliberations either. This highlights even more the benefit
for the 31 signatory States to ratify the Convention in order to
fully participate in joint decisions.
59. As the leading multi-stakeholder body, the Follow-up Committee
should be encouraged to go beyond its statutory functions and devise
a global strategy on fighting sport competition manipulations. An
effective fight against sport competition manipulation functions
on the principle of connected vessels, linking several policy areas,
notably betting/gambling, sport, law enforcement and data protection.
These areas are normally working in silos and would rarely connect
to one another. The lack of comprehensive expertise is precisely
one of the reasons why it is so difficult for countries to implement
or to ratify the Convention.
60. Awareness, education and training, prevention and capacity
building - from grassroots to high performance sport - have been
consensually outlined by governments, experts and sport governing
bodies as well as non-governmental sport associations
Note as priorities to safeguard the integrity
of sport and protect competition stakeholders from various sorts
of manipulation of sports competitions. I have identified additional areas
that are not directly covered by the Convention, which appear to
me to be of particular concern, without which there can be no effective
fight against corruption and manipulation in sport possible. I hope
these issues, as presented below, can be raised during the first
encounters of the new Follow-up Committee.
61. First, the improvement of sports betting integrity regulatory
policies, including responsible gambling, protection of minors and
vulnerable people, protection against gambling addiction, consumer
education and protection (in particular minimising misleading advertising
and unfair commercial practices), preventing money laundering and
the fight against crime in general, and indicating ways of how to
overcome these significant challenges.
62. Several member States have recently moved forward to amend
their betting and gambling legislation to impose restrictive measures
to tackle these issues in several key dimensions as advertising,
sponsoring, compliance with research, education and awareness on
gambling related harm by licensed operators.
Note However,
these are national measures, which risk having considerable enforcement
challenges to regulate online services that are intrinsically cross-border
in nature and therefore having very limited jurisdictional reach of
national regulators. The global threat needs global responses.
63. At the European Union level, gambling falls under the principle
of subsidiarity, which means that it is regulated at national level.
Co-operation between national regulatory authorities, including
on enforcement, is pursued within the framework of the Co-operation
Arrangement concerning online gambling services concluded in 2015.
Leading online gaming and betting operators comply with the European
Committee for Standardisation (CEN) Workshop Agreement on Responsible
Remote Gambling Measures (CWA 16259: 2011).
Note Also, the World Lottery Association
(WLA) and European Lotteries (EL) have elaborated extensive corporate
social responsibility (CSR) and security certification rules including
responsible gaming standards. The EL has also adopted a strong ethical
code on sports betting and a commitment to fund sports. Nevertheless,
this remains a self-regulatory mechanism.
64. The Assembly’s
Recommendation
1997 (2012) on the need to combat match-fixing recommended the Committee
of Ministers to study “the possibility of harmonisation of European
legislation on sports betting, taking account of the legislation
and prerogatives of the European Union, and drawing up guidelines
in this respect”.
Note Although
overall harmonisation is in today’s context not a desired option,
I would suggest that our Assembly could look again into the idea
of drawing up some specific guidelines on sports betting integrity.
65. The second issue of concern is that of conflict of interest.
Sports integrity services play a pivotal role to monitor and alert
suspicious, irregular and illegal sports betting. These services
have been provided through, amongst others, a business model where
commercially driven companies acquire the data rights from the sports
rights holders and monetize these through substantial commercial
contracts with betting operators, regulators and sport organisations,
whilst using the provision of integrity services as a leverage in
such a deal.
66. The opacity around this business model poses serious issues
for independent and neutral integrity services demanding for more
clarification and guidelines on potential conflicts of interest
and misuse of inside information for these companies pursuant to
article 10 of the Convention for sports betting operators, notably when
integrity services represent a minor part of substantial data contracts
later commercialised to a wide array of stakeholders.
67. I therefore strongly recommend particular remedies and guidelines
towards a clear separation between sports integrity service providers
and sports data and sports betting data providers.
68. My third big concern is advertising of gambling and sponsoring
events or teams by gambling operators. As was said in one of our
committee hearings, if the visible advertising of betting operators’
logos on the outfits of sporting teams was no longer permitted,
we would already see a big change in mentality. Indeed, several jurisdictions
have prohibited gambling advertising, mostly as a prevention measure
against addiction. Nevertheless, sports betting revenues represent
a significant commercial stream for the sustainability of the European
dimension of sporting development that cannot be overlooked, notably
when bookmakers set partnerships to support sports. National lotteries
also play a very important although often a very different role, by
providing support for example with the allocation of funds to good
causes.
Note Such
support programmes should consider clear provisions to hold sport
organisations and competition stakeholders accountable to deliver
education and training sessions on sports integrity and apply regulations
for combating manipulation of sports competitions.
69. It is a similar situation with sponsoring of sport by gambling
operators which generates conflicts of interest and allows the sponsoring
companies to get inside information and which can influence the
teams and fans. It would be unwise to impose a full ban on sponsoring.
Rather, a clever approach is needed, compelling betting operators,
as lotteries already do through the ethical code on sports betting,
to impose mandatory provisions on the sponsoring agreements with
sports organisations on education, prevention and training on sports
integrity, namely manipulation of sports competitions. These kinds
of strategies would also strengthen the collaboration between these
two worlds on the issue of integrity moving the current short-term
financially driven relation to a broader collaborative partnership
where money and revenues are not the single issue at stake.
70. These are some tangible recommendations that the Follow-up
Committee could bring up to bridge the gap between gambling and
sport towards a global response to tackle competition manipulation
as a major threat not only to sport but also to sports betting integrity
and vulnerable people protection.
7 Conclusions
71. This report would not be fair
without acknowledging the numerous achievements that both individual countries
and the multi-stakeholder co-operation have already made in the
spirit of the Macolin Convention. Examples include collaboration
in the KCOOS+ and the Group of Copenhagen (GoC) of National Platforms, which
has grown from six initially participating countries in 2016 to
31 today. The Memorandums of Understanding signed with FIFA and
UEFA have also strengthened co-operation with sports governing bodies in
this area. A particular mention in this context should be made of
the FIFA Women’s World Cup France 2019™ (FWWC): an unprecedented
number of stakeholders took part in the “FWWC Integrity Taskforce”
in order to closely co-operate and protect the integrity of the
FWWC. Under the auspices of FIFA, the Council of Europe, the GoC,
Interpol, law enforcement agencies, betting regulators, all relevant
French authorities, Sportradar and GLMS participated in this taskforce.
I hope that a similar multi-stakeholder setup will also be applied
to monitor the UEFA EURO2020 in autumn 2020.
72. I hope to hear the above-mentioned organisations, the International
Olympic Committee (IOC) and other partners, including non-profit
associations, advocate the Convention at every possible occasion
within and beyond the European borders, and to see that no bid to
host a major sporting event is granted to a country that does not
abide by the provisions of the Convention or to a sports federation
that does not live up to the new IOC Olympic Movement Code on the
Prevention of the Manipulation of Sport Competitions.
73. However, our partners need public authorities to be fully
on board. The problems of infiltration of organised crime into sport
and betting related manipulation of sport competitions are wildly
expanding and any further delays just contribute to aggravate the
problems. The Macolin Convention has entered into force and the
Follow-Up committee will be established soon: it is time to act
now.
74. Malta should stop seeking new legal nuances and sincerely
aim at joining the Convention to defend its positions as a fully-fledged
member from within the Follow-up Committee.
75. I would urge the European Union institutions to put the ratification
of the Convention higher on their political agendas. The EU Council
should take a bold political decision to proceed with a direct vote
on the ratification by a qualified majority. In parallel, we should
encourage the EU member States to ratify without delay and join
the Follow-up Committee from its outset. This is the right way to
concretise the commitment that all of them had expressed throughout
all the drafting process and with the adoption of the Macolin Convention.
76. Also, the Council of Europe statutory bodies must place the
issue much higher on the political agenda, starting by dedicating
at least part of the forthcoming 16th Conference
of Ministers responsible for Sport in November 2020 on underlining
the swift ratification of the Macolin Convention and investing appropriate financial
and human resources into advocacy and a proper communication policy
for the Convention. Furthermore, the Committee of Ministers should
be urged to come back to the issue of a European Union – a Council
of Europe Memorandum of Understanding on the participation of the
European Union in Council of Europe conventions, as recommended
by the Assembly in 2017.
77. Our Assembly should contribute to the process by organising
an inter-parliamentary conference, which would involve relevant
parliamentary committees in all member States to share experiences,
exchange knowledge and best practices and to discuss how to overcome
the various national obstacles.
