Tractatenblad 2016, 158

83 (2005) Nr. 13

A. TITEL

Internationaal Verdrag tegen doping in de sport

(met Bijlagen en Aanhangsels);

Parijs, 19 oktober 2005

Voor een overzicht van de verdragsgegevens, zie verdragsnummers 010871 en 013373 in de Verdragenbank.

B. TEKST

De navolgende in Trb. 2015, 88 opgenomen correcties dienen als volgt te luiden:

„Op blz. 7, in artikel 7, laatste regel, dient de zinsnede „sport authorities” te worden vervangen door „sports authorities”. Op diezelfde bladzijde, in artikel 9, eerste regel en tweede regel, dient de zinsnede „sport organization” te worden vervangen door „sports organizations”.”

„Op blz. 8, in artikel 11, onder a, derde regel, dient de zinsnede „to finance” te worden vervangen door „in financing”, in artikel 12, onder a, eerste regel, dient de zinsnede „the sports organizations”, te worden vervangen door „the implementation by sports organizations”, in de tweede regel dient de zinsnede „to carry out the” te worden vervangen door het woord „of” […] en onder c, tweede regel, dient het woord „to gain” te worden vervangen door „in gaining”.”

„Op blz. 17, in artikel 37, eerste lid, tweede regel, en tweede lid, vierde regel, dienen de zinsneden „the deposit” te worden vervangen door „the date of deposit” en in het tweede lid, tweede regel, dient het woord „this” te worden vervangen door „the”.”

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De Conferentie van Partijen heeft op grond van artikel 34, tweede lid, van het Verdrag, de op 18 november 2015 door het Uitvoerend Comité van het Mondiaal Antidopingagentschap aangenomen wijzigingen van Bijlage II bij het Verdrag goedgekeurd. De geconsolideerde Engelse tekst¹⁾ van Bijlage II bij het Verdrag, zoals laatstelijk gewijzigd in 2015, luidt vanaf 1 januari 2016 als volgt:

Part Two:
Standards and process for granting TUEs

4.0 Obtaining a TUE

• 4.1 An Athlete may be granted a TUE if (and only if) he/she can show, by a balance of probability, that each of the following conditions is met:

  • a. The Prohibited Substance or Prohibited Method in question is needed to treat an acute or chronic medical condition, such that the Athlete would experience a significant impairment to health if the Prohibited Substance or Prohibited Method were to be withheld.

  • b. The Therapeutic Use of the Prohibited Substance or Prohibited Method is highly unlikely to produce any additional enhancement of performance beyond what might be anticipated by a return to the Athlete’s normal state of health following the treatment of the acute or chronic medical condition.

  • c. There is no reasonable Therapeutic alternative to the Use of the Prohibited Substance or Prohibited Method.

  • d. The necessity for the Use of the Prohibited Substance or Prohibited Method is not a consequence, wholly or in part, of the prior Use (without a TUE) of a substance or method which was prohibited at the time of such Use.

  [Comment to 4.1: When a TUEC is deciding whether or not to recognize a TUE granted by another Anti-Doping Organization (see Article 7, below), and when WADA is reviewing a decision to grant (or not to grant) a TUE (see Article 8, below), the issue will be the same as it is for a TUEC that is considering an application for a TUE under article 6, below, i.e., has the Athlete demonstrated by a balance of probability that each of the conditions set out in article 4.1 is met?

  The WADA documents titled “Medical Information to Support the Decisions of TUECs”, posted on WADA’s website, should be used to assist in the application of these criteria in relation to particular medical conditions.]

• 4.2 Unless one of the exceptions set out in Article 4.3 applies, an Athlete who needs to Use a Prohibited Substance or Prohibited Method for Therapeutic reasons must obtain a TUE prior to Using or Possessing the substance or method in question.

• 4.3 An Athlete may only be granted retroactive approval for his/her Therapeutic Use of a Prohibited Substance or Prohibited Method (i.e., a retroactive TUE) if:

  • a. Emergency treatment or treatment of an acute medical condition was necessary; or

  • b. Due to other exceptional circumstances, there was insufficient time or opportunity for the Athlete to submit, or for the TUEC to consider, an application for the TUE prior to Sample collection; or

  • c. The applicable rules required the Athlete (see comment to Article 5.1) or permitted the Athlete (see Code Article 4.4.5) to apply for a retroactive TUE; or

  [Comment to 4.3(c): Such Athletes are strongly advised to have a medical file prepared and ready to demonstrate their satisfaction of the TUE conditions set out at Article 4.1, in case an application for a retroactive TUE is necessary following Sample collection.]

  • d. It is agreed, by WADA and by the Anti-Doping Organization to whom the application for a retroactive TUE is or would be made, that fairness requires the grant of a retroactive TUE.

  [Comment to 4.3(d): If WADA and/or the Anti-Doping Organization do not agree to the application of Article 4.3(d), that may not be challenged either as a defense to proceedings for an anti-doping rule violation, or by way of appeal, or otherwise.]

5.0 TUE Responsibilities of Anti-Doping Organizations

• 5.1 Code Article 4.4 specifies (a) which Anti-Doping Organizations have authority to make TUE decisions; (b) how those TUE decisions should be recognized and respected by other Anti-Doping Organizations; and (c) when TUE decisions may be reviewed and/or appealed.

  [Comment to 5.1: See Annex 1 for a flow-chart summarizing the key provisions of Code Article 4.4.

  Code Article 4.4.2 specifies the authority of a National Anti-Doping Organization to make TUE decisions in respect of Athletes who are not International-Level Athletes. In case of dispute as to which National Anti-Doping Organization should deal with the TUE application of an Athlete who is not an International-Level Athlete, WADA will decide. WADA’s decision will be final and not subject to appeal.

  Where national policy requirements and imperatives lead a National Anti-Doping Organization to prioritize certain sports over others in its test distribution planning (as contemplated by Article 4.4.1 of the International Standard for Testing and Investigations), the National Anti-Doping Organization may decline to consider advance applications for TUEs from Athletes in some or all of the non-priority sports, but in that case it must permit any such Athlete from whom a Sample is subsequently collected to apply for a retroactive TUE. The National Anti-Doping Organization should publicize any such policy on its website for the benefit of affected Athletes.]

• 5.2 Each National Anti-Doping Organization, International Federation and Major Event Organization must establish a TUEC to consider whether applications for grant or recognition of TUEs meet the conditions set out in Article 4.1.

  [Comment to 5.2: While a Major Event Organization may choose to recognize pre-existing TUEs automatically, there must be a mechanism for Athletes participating in the Event to obtain a new TUE if the need arises. It is up to each Major Event Organization whether it sets up its own TUEC for this purpose, or rather whether it outsources the task by agreement to a third party (such as Sport Accord). The aim in each case should be to ensure that Athletes competing in such Events have the ability to obtain TUEs quickly and efficiently before they compete.]

  • a. TUECs should include at least three physicians with experience in the care and treatment of Athletes and a sound knowledge of clinical, sports and exercise medicine. In cases involving Athletes with impairments, at least one TUEC member should possess general experience in the care and treatment of Athletes with impairments, or possess specific experience in relation to the Athlete’s particular impairment(s).

  • b. In order to ensure a level of independence of decisions, at least a majority of the members of a TUEC should have no political responsibility in the Anti-Doping Organization that appoints them. All members of the TUEC must sign a conflict of interest and confidentiality declaration. (A template declaration is available on WADA’s website).

• 5.3 Each National Anti-Doping Organization, International Federation and Major Event Organization must establish a clear process for applying to its TUEC for a TUE that complies with the requirements of this International Standard. It must also publish details of that process by (at a minimum) posting the information in a conspicuous place on its website and sending the information to WADA. WADA may re-publish the same information on its own website.

• 5.4 Each National Anti-Doping Organization, International Federation and Major Event Organization must promptly report (in English or French) all decisions of its TUEC granting or denying TUEs, and all decisions to recognize or refusing to recognize other Anti-Doping Organizations’ TUE decisions, through ADAMS or any other system approved by WADA. In respect of TUEs granted, the information reported shall include (in English or French):

  • a. not only the approved substance or method, but also the dosage(s), frequency and route of Administration permitted, the duration of the TUE, and any conditions imposed in connection with the TUE; and

  • b. the TUE application form and the relevant clinical information (translated into English or French) establishing that the Article 4.1 conditions have been satisfied in respect of such TUE (for access only by WADA, the Athlete’s National Anti-Doping Organization and International Federation, and the Major Event Organization organizing an Event in which the Athlete wishes to compete).

  [Comment to 5.4: The process of recognition of TUEs is greatly facilitated by use of ADAMS.]

• 5.5 When a National Anti-Doping Organization grants a TUE to an Athlete, it must warn him/her in writing (a) that that TUE is valid at national level only, and (b) that if the Athlete becomes an International-Level Athlete or competes in an International Event, that TUE will not be valid for those purposes unless it is recognized by the relevant International Federation or Major Event Organization in accordance with Article 7.1. Thereafter, the National Anti-Doping Organization should help the Major Athlete to determine when he/she needs to submit the TUE to an International Federation or Event Organization for recognition, and should guide and support the Athlete through the recognition process.

• 5.6 Each International Federation and Major Event Organization must publish a notice (at a minimum, by posting it in a conspicuous place on its website and sending it to WADA) that sets out clearly (1) which Athletes coming under its jurisdiction are required to apply to it for a TUE, and when; (2) which TUE decisions of other Anti-Doping Organizations it will automatically recognize in lieu of such application, in accordance with Article 7.1(a); and (3) which TUE decisions of other Anti-Doping Organizations will have to be submitted to it for recognition, in accordance with Article 7.1(b). WADA may re-publish the notice on its own website.

• 5.7 Any TUE that an Athlete has obtained from a National Anti-Doping Organization shall not be valid if the Athlete becomes an International-Level Athlete or competes in an International Event unless and until the relevant International Federation recognizes that TUE in accordance with Article 7.0. Any TUE that an Athlete has obtained from an International Federation shall not be valid if the Athlete competes in an International Event organized by a Major Event Organization, unless and until the relevant Major Event Organization recognizes that TUE in accordance with Article 7.0. As a result, if the International Federation or Major Event Organization (as applicable) declines to recognize that TUE, then (subject to the Athlete’s rights of review and appeal) that TUE may not be relied upon to excuse the presence, Use, Possession or Administration of the Prohibited Substance or Prohibited Method mentioned in the TUE vis-à-vis that International Federation or Major Event Organization.

6.0 TUE Application Process

• 6.1 An Athlete who needs a TUE should apply as soon as possible. For substances prohibited In-Competition only, the Athlete should apply for a TUE at least 30 days before his/her next Competition, unless it is an emergency or exceptional situation. The Athlete should apply to his/her National Anti-Doping Organization, International Federation and/or a Major Event Organization (as applicable), using the TUE application form provided. Anti-Doping Organizations shall make the application form they want Athletes to use available for download from their websites. That form must be based on the template set out in Annex 2. The template may be modified by Anti-Doping Organizations to include additional requests for information, but no sections or items may be removed.

• 6.2 The Athlete should submit the TUE application form to the relevant Anti-Doping Organization via ADAMS or as otherwise specified by the Anti-Doping Organization. The form must be accompanied by:

  • a. a statement by an appropriately qualified physician, attesting to the need for the Athlete to Use the Prohibited Substance or Prohibited Method in question for Therapeutic reasons; and

  • b. a comprehensive medical history, including documentation from the original diagnosing physician(s) (where possible) and the results of all examinations, laboratory investigations and imaging studies relevant to the application.

  [Comment to 6.2(b): The information submitted in relation to the diagnosis, treatment and duration of validity should be guided by the WADA documents titled “Medical Information to Support the Decisions of TUECs”.]

• 6.3 The Athlete should keep a complete copy of the TUE application form and of all materials and information submitted in support of that application.

• 6.4 A TUE application will only be considered by the TUEC following the receipt of a properly completed application form, accompanied by all relevant documents. Incomplete applications will be returned to the Athlete for completion and re-submission.

• 6.5 The TUEC may request from the Athlete or his/her physician any additional information, examinations or imaging studies, or other information that it deems necessary in order to consider the Athlete’s application; and/or it may seek the assistance of such other medical or scientific experts as it deems appropriate.

• 6.6 Any costs incurred by the Athlete in making the TUE application and in supplementing it as required by the TUEC are the responsibility of the Athlete.

• 6.7 The TUEC shall decide whether or not to grant the application as soon as possible, and usually (i.e., unless exceptional circumstances apply) within no more than 21 days of receipt of a complete application. Where a TUE application is made a reasonable time prior to an Event, the TUEC must use its best endeavors to issue its decision before the start of the Event.

• 6.8 The TUEC’s decision must be communicated in writing to the Athlete and must be made available to WADA and to other Anti-Doping Organizations via ADAMS or any other system approved by WADA, in accordance with Article 5.4.

  • a. A decision to grant a TUE must specify the dosage(s), frequency, route and duration of Administration of the Prohibited Substance or Prohibited Method in question that the TUEC is permitting, reflecting the clinical circumstances, as well as any conditions imposed in connection with the TUE.

  • b. A decision to deny a TUE application must include an explanation of the reason(s) for the denial.

• 6.9 Each TUE will have a specified duration, as decided by the TUEC, at the end of which the TUE will expire automatically. If the Athlete needs to continue to Use the Prohibited Substance or Prohibited Method after the expiry date, he/she must submit an application for a new TUE well in advance of that expiry date, so that there is sufficient time for a decision to be made on the application before the expiry date.

  [Comment to 6.9: The duration of validity should be guided by the WADA documents titled “Medical Information to Support the Decisions of TUECs”.]

• 6.10 A TUE will be withdrawn prior to expiry if the Athlete does not promptly comply with any requirements or conditions imposed by the Anti-Doping Organization granting the TUE. Alternatively a TUE may be reversed upon review by WADA or on appeal.

• 6.11 Where an Adverse Analytical Finding is issued shortly after a TUE for the Prohibited Substance in question has expired or has been withdrawn or reversed, the Anti-Doping Organization conducting the initial review of the Adverse Analytical Finding (Code Article 7.2) shall consider whether the finding is consistent with Use of the Prohibited Substance prior to the expiry, withdrawal or reversal of the TUE. If so, such Use (and any resulting presence of the Prohibited Substance in the Athlete’s Sample) is not an anti-doping rule violation.

• 6.12 In the event that, after his/her TUE is granted, the Athlete requires a materially different dosage, frequency, route or duration of Administration of the Prohibited Substance or Prohibited Method to that specified in the TUE, he/she must apply for a new TUE. If the presence, Use, Possession or Administration of the Prohibited Substance or Prohibited Method is not consistent with the terms of the TUE granted, the fact that the Athlete has the TUE will not prevent the finding of an anti-doping rule violation.

7.0 TUE Recognition Process

• 7.1 Code Article 4.4 requires Anti-Doping Organizations to recognize TUEs granted by other Anti-Doping Organizations that satisfy the Article 4.1 conditions. Therefore, if an Athlete who becomes subject to the TUE requirements of an International Federation or Major Event Organization already has a TUE, he/she should not submit an application for a new TUE to the International Federation or Major Event Organization. Instead:

  • a. The International Federation or Major Event Organization may publish notice that it will automatically recognize TUE decisions made pursuant to Code Article 4.4 (or certain categories of such decisions, e.g., those made by specified Anti-Doping Organizations, or those relating to particular Prohibited Substances), provided that such TUE decisions have been reported in accordance with Article 5.4 and therefore are available for review by WADA. If the Athlete’s TUE falls into a category of TUEs that are automatically recognized in this way at the time the TUE is granted, he/she does not need to take any further action.

  [Comment to 7.1(a): To ease the burden on Athletes, automatic recognition of TUE decisions once they have been reported in accordance with Article 5.4 is strongly encouraged. If an International Federation or Major Event Organizer is not willing to grant automatic recognition of all such decisions, it should grant automatic recognition of as many such decisions as possible, e.g., by publishing a list of Anti-Doping Organizations whose TUE decisions it will recognize automatically, and/or a list of those Prohibited Substances for which it will automatically recognize TUEs. Publication should be in the same manner as is set out in Article 5.3, i.e., the notice should be posted on the International Federation’s website and sent to WADA and to National Anti-Doping Organizations.]

  • b. In the absence of such automatic recognition, the Athlete shall submit a request for recognition of the TUE to the International Federation or Major Event Organization in question, either via ADAMS or as otherwise specified by that International Federation or Major Event Organization. The request should be accompanied by a copy of the TUE and the original TUE application form and supporting materials referenced at Articles 6.1 and 6.2 (unless the Anti-Doping Organization that granted the TUE has already made the TUE and supporting materials available via ADAMS or other system approved by WADA, in accordance with Article 5.4).

• 7.2 Incomplete requests for recognition of a TUE will be returned to the Athlete for completion and re-submission. In addition, the TUEC may request from the Athlete or his/her physician any additional information, examinations or imaging studies, or other information that it deems necessary in order to consider the Athlete’s request for recognition of the TUE; and/or it may seek the assistance of such other medical or scientific experts as it deems appropriate.

• 7.3 Any costs incurred by the Athlete in making the request for recognition of the TUE and in supplementing it as required by the TUEC are the responsibility of the Athlete.

• 7.4 The TUEC shall decide whether or not to recognize the TUE as soon as possible, and usually (i.e., unless exceptional circumstances apply) within no more than 21 days of receipt of a complete request for recognition. Where the request is made a reasonable time prior to an Event, the TUEC must use its best endeavors to issue its decision before the start of the Event.

• 7.5 The TUEC’s decision will be notified in writing to the Athlete and will be made available to WADA and to other Anti-Doping Organizations via ADAMS or any other system approved by WADA. A decision not to recognize a TUE must include an explanation of the reason(s) for the non-recognition.

8.0 Review of TUE Decisions by WADA

• 8.1 Code Article 4.4.6 provides that WADA, in certain cases, must review TUE decisions of International Federations, and that it may review any other TUE decisions, in each case to determine compliance with the Article 4.1 conditions. WADA shall establish a WADA TUEC that meets the requirements of Article 5.2 to carry out such reviews.

• 8.2 Each request for review must be submitted to WADA in writing, and must be accompanied by payment of the application fee established by WADA, as well as copies of all of the information specified in Article 6.2 (or, in the case of review of a TUE denial, all of the information that the Athlete submitted in connection with the original TUE application). The request must be copied to the party whose decision would be the subject of the review, and to the Athlete (if he/she is not requesting the review).

• 8.3 Where the request is for review of a TUE decision that WADA is not obliged to review, WADA shall advise the Athlete as soon as practicable following receipt of the request whether or not it will refer the TUE decision to the WADA TUEC for review. If WADA decides not to refer the TUE decision, it will return the application fee to the Athlete. Any decision by WADA not to refer the TUE decision to the WADA TUEC is final and may not be appealed. However, the TUE decision may still be appealable, as set out in Code Article 4.4.7.

• 8.4 Where the request is for review of a TUE decision of an International Federation that WADA is obliged to review, WADA may nevertheless refer the decision back to the International Federation (a) for clarification (for example, if the reasons are not clearly set out in the decision); and/or (b) for re-consideration by the International Federation (for example, if the TUE was only denied because medical tests or other information required to demonstrate satisfaction of the Article 4.1 conditions were missing).

• 8.5 Where a request for review is referred to the WADA TUEC, the WADA TUEC may seek additional information from the Anti-Doping Organization and/or the Athlete, including further studies as described in Article 6.5, and/or it may obtain the assistance of other medical or scientific experts as it deems appropriate.

• 8.6 The WADA TUEC shall reverse any grant of a TUE that does not comply with the Article 4.1 conditions. Where the TUE reversed was a prospective TUE (rather than a retroactive TUE), such reversal shall take effect upon the date specified by WADA (which shall not be earlier than the date of WADA’s notification to the Athlete). The reversal shall not apply retroactively and the Athlete’s results prior to such notification shall not be Disqualified. Where the TUE reversed was a retroactive TUE, however, the reversal shall also be retroactive.

• 8.7 The WADA TUEC shall reverse any denial of a TUE where the TUE application met the Article 4.1 conditions, i.e., it shall grant the TUE.

• 8.8 Where the WADA TUEC reviews a decision of an International Federation that has been referred to it pursuant to Code Article 4.4.3 (i.e., a mandatory review), it may require whichever Anti-Doping Organization “loses” the review (i.e., the Anti-Doping Organization whose view it does not uphold) (a) to reimburse the application fee to the party that referred the decision to WADA (if applicable); and/or (b) to pay the costs incurred by WADA in respect of that review, to the extent they are not covered by the application fee.

• 8.9 Where the WADA TUEC reverses a TUE decision that WADA has decided in its discretion to review, WADA may require the Anti-Doping Organization that made the decision to pay the costs incurred by WADA in respect of that review.

  8.10 WADA shall communicate the reasoned decision of the WADA TUEC promptly to the Athlete and to his/her National Anti-Doping Organization and International Federation (and, if applicable, the Major Event Organization).

9.0 Confidentiality of Information

• 9.1 The collection, storage, processing, disclosure and retention of Personal Information during the TUE process by Anti-Doping Organizations and WADA shall comply with the International Standard for the Protection of Privacy and Personal Information.

• 9.2 An Athlete applying for the grant of a TUE or for recognition of a TUE shall provide written consent:

  • a. for the transmission of all information pertaining to the application to members of all TUECs with authority under this International Standard to review the file and, as required, other independent medical or scientific experts, and to all necessary staff (including WADA staff) involved in the management, review or appeal of TUE applications;

  • b. for the Athlete’s physician(s) to release to the TUEC upon request any health information that the TUEC deems necessary in order to consider and determine the Athlete’s application; and

  • c. for the decision on the application to be made available to all Anti-Doping Organizations with Testing authority and/or results management authority over the Athlete.

  [Comment to 9.2: Prior to collecting Personal Information or obtaining consent from an Athlete, the Anti-Doping Organization shall communicate to the Athlete the information set out in Article 7.1 of the International Standard for the Protection of Privacy and Personal Information.]

• 9.3 The TUE application shall be dealt with in accordance with the principles of strict medical confidentiality. The members of the TUEC, independent experts and the relevant staff of the Anti-Doping Organization shall conduct all of their activities relating to the process in strict confidence and shall sign appropriate confidentiality agreements. In particular they shall keep the following information confidential:

  • a. All medical information and data provided by the Athlete and physician(s) involved in the Athlete’s care.

  • b. All details of the application, including the name of the physician(s) involved in the process.

• 9.4 Should the Athlete wish to revoke the right of the TUEC to obtain any health information on his/her behalf, the Athlete shall notify his/her medical practitioner in writing of such revocation; provided that, as a result of that revocation, the Athlete’s application for a TUE or for recognition of an existing TUE will be deemed withdrawn without approval/recognition having been granted.

• 9.5 Anti-Doping Organizations shall only use information submitted by an Athlete in connection with a TUE application to evaluate the application and in the context of potential anti-doping rule violation investigations and proceedings.

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D. PARLEMENT

De wijzigingen van Bijlage II van 18 november 2015 bij het Verdrag behoeven ingevolge artikel 7, onderdeel f, van de Rijkswet goedkeuring en bekendmaking verdragen niet de goedkeuring van de Staten-Generaal.

G. INWERKINGTREDING

De wijzigingen van Bijlage II van 18 november 2015 bij het Verdrag zijn ingevolge artikel 34, derde lid, op 1 januari 2016 in werking getreden voor alle partijen bij het Verdrag, waaronder het Koninkrijk der Nederlanden.

Wat betreft het Koninkrijk der Nederlanden, gelden de wijzigingen van Bijlage II, evenals het Verdrag, voor het gehele Koninkrijk.

Koninkrijk der Nederlanden

Land	Voorlopige toepassing	In werking	Terugwerkende kracht	Buiten werking
Nederland (in Europa)		01-02-2007
Nederland (Bonaire)		10-10-2010
Nederland (Sint Eustatius)		10-10-2010
Nederland (Saba)		10-10-2010
Aruba		01-09-2008
Curaçao		10-10-2010
Sint Maarten		10-10-2010
Het Verdrag, met Bijlagen en Aanhangsels, gold sinds 01-07-2009 voor de Nederlandse Antillen.

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In overeenstemming met artikel 19, tweede lid, van de Rijkswet goedkeuring en bekendmaking verdragen heeft de Minister van Buitenlandse Zaken bepaald dat de wijzigingen van Bijlage II van 18 november 2015 bij het Verdrag zullen zijn bekendgemaakt in het gehele Koninkrijk op de dag na de datum van uitgifte van dit Tractatenblad.

Uitgegeven de negenentwintigste september 2016.

De Minister van Buitenlandse Zaken, A.G. KOENDERS

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1) De bijlagen bij Bijlage II liggen ter inzage bij de Afdeling Verdragen van het Ministerie van Buitenlandse Zaken en zijn te vinden op http://www.wada-ama.org.