Belgian council of state (section administrative law), decision of 15 February 2012

March 21st, 2012 § 0 comments

request for annulment of the resolution of 17 december 2009 by the secretary-general of the department of culture, youth, sports and media of the flemish community concerning the publication of the applicable code (“wada code”) and applicable standards (“the resolution”) as referred to in art. 36 of the regulations of the flemish government of 20 june 2008 (“the regulation”) implementing the decree of 13 july 2007 on medically responsible sports practicing (“the decree”).

Belgium: Unlawful delegation under Flemish Regulation to the Secretary General of the Flemish Community adopting the Code and applicable standards;
Relation between the International Convention against Doping in Sports (Paris 19 October 2005, referring to the WADA Code and International standards) and the Flemish Community;
Direct effect Convention; Violation of fundamental rights (ECHR, BUPO, Belgian Constitution);

Applicants : Elite athletes;

Respondent : Flemish Community;

Intervening Party : Agence Mondial Antidopage, a foundation under Swiss law;

Subject matter:

The applicants are all elite athletes as defined in the Flemish Decree of 13 July 2007 on medically responsible sports practicing (“the Decree”) and as such subject to the so called “whereabout rules”, under which they are obliged to comply with certain rules in view of communication of their whereabouts to the relevant authorities (Flemish authorities, sports association and WADA) (art. 28 Decree).

The Decree defines the Code as the WADA Anti-Doping Code, adopted by WADA on 5 March 2003 in Copenhagen and modifications thereof. WADA is a private foundation incorporated under Swiss law.

Art 36 of the Regulation of the Flemish Government implementing the Decree stipulates:

“The applicable Code and applicable standards and amendments thereof will be published by the administration “ex officio” in the Belgian Official Gazette”.

With reference to art. 36 of the Regulation, the Secretary General of the Department for Culture, Youth, Sports and Media, on 17 December 2008 published the following Resolution:

As From 1 January 2009 will be applicable:

• the WADA Code (Annex 1 to the Resolution);
• The International Standard for Doping Tests (Annex 2 to the Resolution);
• The International Standard for Laboratoria (Annex 3 to the Resolution);
• The International Standard for exemptions for therapeutic reasons;
• The International Standard for Protection of Privacy and Personal Information;

The International Standard for Doping Tests (Annex 2 to the Resolution) gives detailed rules in view of communication of “whereabouts”.

These “whereabouts rules” are new compared to the former rules adopted by the Flemish authorities, which are replaced.

Arguments Applicants:

Applicants submit that article 36 of the Regulation constitutes a unlawful delegation of powers to the Secretary General of the powers attributed to the Flemish Government under article 28, § 3 Decree. The determination of “whereabout rules” which directly concern fundamental rights is far from a “rule of detail” and therefore cannot be subject to such delegation.

The Flemish legislator only has committed itself under the applicable international Convention (International Convention against Doping in Sports, adopted in Paris on 19 October 2005) to comply with the principles adhered in that Convention and not to follow the Code automatically, irrespective of changes in the future.

Applicants fully subscribe the objectives of the WADA Rules, but they oppose the manner in which these objectives are made concrete in the Resolution, which is unilaterally imposed on them by the Flemish authorities.

They oppose especially the so called “full diary”, where they have to communicate in advance precise data for each day of the following quarter, the communication of private data for each day, including non sports related regular activities, the possibilities of being tested 24/24 hours, despite their family life and to their availability for possible testing during 60 minutes at a particular place (to be communicated 3 months in advance).

Applicants also invoke violation of articles 8 ECHR, art. 22 Belgian Constitution, art. 17 BUPO, Flemish Decree and Regulations on medically responsible sports practicing and finally the principles of fairness and proportionality.

Defences respondent:

Because some of the applicants are already subject to UCI Rules (International Cycling Association), including the “wherabout rules” which are subject to the proceedings, they cannot benefit from any annulment of the Resolution of the Secretary-General. They therefore have no interest in applying for annulment.

Some of the applicants are no longer “elite athletes” or are no longer domiciled within the territory of the Flemish Community, so that their application also for this reason, is inadmissible.

The applications for annulment of the Resolution are not admissible since the applicants have not opposed to the Decree and the implementing regulations, adopting the International Convention against Doping in Sports (Paris 19 October 2005), hereinafter also “the Convention”. The Flemish legislator is obliged to apply the WADA Code and the standards in full and unaltered . By adopting the Resolution the Secretary-General just executes this obligation and there is no room for manoevre for the Flemish authorities.

Council of State:

Although some of the applicants have committed themselves – in a relation under private law – towards their sports federations to comply with the WADA Code and the standards, this cannot prevent them to invoke the illegality of regulations which unilaterally are imposed on them by the Flemish authorities, which has as an effect that this code and these standards become part of internal public law. If the right to oppose such unilaterally imposed rules would be denied to applicants, this would have as a consequence that applicants would have to accept all future, including unlawful amendments of such rules, in which case they would not have a right of appeal before the ordinary courts. The fact that applicants could invoke a violation of their fundamental rights before the ordinary courts, which as a consequence of their membership of a private sports organization does not lead to another decision. The applicants would be faced with the argument that they have no interest to oppose such whereabout rules, since they have been imposed by public authorities in anti doping legislation and more in particular the resolution of which the annulment is sought in the present proceedings.

The WADA Code and the International Standards of Doping Controls are as not part of the 2005 Paris International Convention against Doping in Sports (art. 4) and are only attached or referred to by way of information and more in particular do not result in binding obligations for the parties to the Convention.
The signing parties are free to adopt the measures provided that these measures are appropriate measures and compatible with the principles of the Code. Moreover the signing parties may adopt additional measures. Article 2 of the Convention refers in general terms to the violation of applicable requirements on availability of athletes for testing outside competition, including failure to provide information on whereabouts and the missing of testing if based on reasonable legislation, as a violation of anti doping regulations.

Therefore the WADA Code and the standards have not become part “ipso facto” of positive law of the Flemish legal order.

Moreover the Flemish Community has not signed the Convention and therefore the Flemish legislator has not consented to the Convention.

Under article 24 bis of the Decree the Flemish Government has the necessary powers to adopt the appropriate measures as referred to in the Convention. However that does not mean that the Flemish Government does not have any margin of appreciation when adopting these measures neither is it obliged to adopt the WADA Code and the standards in an unaltered way.

Decision Council of State:

The Resolution of 17 December 2008 by the Secretary General of the Department for Culture, Youth, Sports and Media cannot be qualified as a merely executing measure. The Resolution should be qualified as a regulatory measure. The argument by the Flemish Community that art. 46 of the Regulation of the Flemish government refers to “the applicable standard of the Code” and that herewith the WADA Code was made part of the Flemish internal legal order is rejected. First of all given the place and the context of reference to the WADA Code in the Regulation of 20 June 2008, it cannot be assumed that the Code and Standards were implemented which entered into force on 1 January 2009, especially not since WADA, the originator of the Code and Standards is a private association, which has no regulatory powers or to which private association no delegation can take place.

At least what concerns the “where about rules” the Flemish Government should have adopted the relevant anti doping rules explicitly and in an unbiased way in the form of a regulation instead of delegating regulatory powers to the administration under the appearance of “ex officio” publication.

The Resolution also violates formal requirements since regulatory measures should be submitted for advice on compliance with both national and international law to the Council of State.

The Resolution of 17 December 2008 by the Secretary General of the Department for Culture, Youth, Sports and Media is declared null and void.

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