Transcript Mobile gambling and European law: what is the outlook for

Mobile gambling and European law:
what is the outlook for operating in Europe?
Thibault Verbiest
Member of the Paris and Brussels Bars
Senior Partner ULYS
[email protected]
(1) How is mobile gambling
regulated in Europe?
(1) The EC Treaty
 Article 49 ECT: freedom to provide services within
the Community
 Article 50 ECT: services are provided for
remuneration
 Discriminatory restrictions ok if public policy,
public security, public health (art.46) or overriding
reasons of general interest + proportionality and
necessity (Schindler, Läära, Zenatti)
(1) How is mobile gambling
regulated in Europe?
(2) Gambelli: limitation of admissible restrictions
 Consistent gaming policy
 Clear guidelines to national courts on how they
should use their discretional power to interpret the
facts of the case
 Country of origin principle
 Proof of clear and present risks for consumers
 Proof of proportionality by submission of
statistical or other evidence
(1) How is mobile gambling
regulated in Europe?
(3)Secondary EU law and initiatives of the Commission
 E-commerce directive: exclusion of gambling services
 Study on gambling services in the internal market
 To evaluate how the differing laws regulating online and
offline gambling services impact on functioning of the
Internal Market
 To evaluate whether those laws restrict the economic and
employment growth associated with gambling services
 Publication of report June 2006 ► sector specific Act?
 Directive 98/48 EC: notification obligation for inf soc.serv.
 Proposal for a Directive on Services in the Internal Market
(Jan 2004): gambling excluded from COP
(1) How is mobile gambling
regulated in Europe?
(3) Secondary EU law and initiatives of the Commission
 Gebhardt report on the services directive (April 2005)
 Complete exclusion of gambling
 Mutual recognition & Country of Destination:
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Country of origin rules do not apply in fields of consumer
protection, environmental protection, labour law
MS may invoke Country of Destination principle if :
Reasons of public interest (social policy)
This interest is not yet protected by provisions applicable to the
service provider in his Country of Origin (equivalence)
These rules are proportionate, generally applicable, businessrelated in nature
(1) How is mobile gambling
regulated in Europe?
(3)Secondary EU law and initiatives of the Commission
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Inconsistency of the Gebhardt report with ECJ case-law
The right of MS to impose restrictions is not absolute:
see Gambelli and Lindman (consistent gaming policy)
Restrictions of cross-border gambling to secure public
revenues is not a justified ground to override the
freedom to provide/receive services (Schindler, Zenatti,
Gambelli)
EP’s plenary will probably vote in January 2006
Gambling services very likely to be excluded
(2) How is mobile gambling
regulated in Member States?
(1)Germany: case-law gambling
Supreme Court, April 2004
Questions the consistency of German gaming
policy with “Gambelli”.
Federal Constitutional Court, April 2005
Expresses doubts on the consistency of the
German cross-border gaming restrictions with EC
law requirements
(2) How is mobile gambling
regulated in Member States?
(1)Germany: case-law gambling
 German Federal Constitutional Court, oral hearing 8 November 2005
 Case relating to the consistency of a provision of the German criminal
code (art.284) with the freedom to exercise a profession (art.12
German constitution)
 Court asked local authorities to act prudently and refrain from too
restrictive actions against local intermediaries while decision pending
 Decision delayed until February 2006: future liberalization of the
gaming market very likely
 Conclusion: no risks involved for (mobile) gaming operators
(2) How is mobile gambling
regulated in Member States?
(2) The Netherlands: case-law gambling
 Administrative Court of Breda, 2 December 2005
 Questions the consistency of Dutch gaming restrictions
with EC law (Gambelli)
 European Commission: critical comments to legislative
proposal extending national casino monopoly to
information society services
 Market deregulation not excluded in mid-term
 But earlier case-law diverging (main proceedings vs
summary proceedings)
 Conclusion: prospects looking brighter but caution
(2) How is mobile gambling
regulated in Member States ?
(3) France: 4 Acts
 1983 and 1907 Act: games of chance unlawful if
 Gaming house
 Open to the public
 Games of chance take place ► ok if skill prevails over
chance
 1836 Act: lotteries unlawful if
 Offer made to public
 Profit
 Stake involved
 Random outcome
 Exception for FDJ and charitable lottery
 1891 Act horse betting: monopoly (PMU)
(2) How is mobile gambling
regulated in Member States ?
(3) France: case-law gambling
 TGI Paris, 8 July 2005
 PMU wins case against Malta established bookmaker
Zeturf
 Debate focused on intellectual property aspects and PMU’s
exclusive rights
 Court did not assess the compliance of French gaming
policy with European law
 Confirmed by Court of appeal, 7 January 2006
French gaming restrictions consistent with EC law
No referral to the ECJ
 Conclusion: high risks for (mobile) gaming operators in
field of sports betting
(2) How is mobile gambling
regulated in Member States?
(3) France: mobile services regulation
 Law transposing the 2002 E-commerce directive (LCEN):
 Service provider liability, e-commerce rules, designation of a
director of publication, service identification etc..
 Consumer law transposing the 1997 Consumer Directive:
 no withdrawal right for authorized gaming services,
liability of the professional party, consumer pre-contractual
obligation of information
 1991 mail privacy law (eg, winning numbers)
(2) How is mobile gambling
regulated in Member States?
(3) France: mobile services regulation
 Postal and telecommunications Code (CPCE):
 Broadcasting regulation (not content reg.)
 Regulatory authority (ARCEP)
 Recommendations (CST & CTA): eg, availability of
games’ rules
 Operators’ civil (art.1382 Civil code; summary
proceedings) and criminal liability (specific gaming
offences: Perben Act 2004, art.121.-7 criminal code, ie,
complicity, art.321-1 crim code, ie, “recel”)► French
courts competent
(2) How is mobile gambling
regulated in Member States?
(4) Belgium
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1999 Games of chance Act: licence required if
stake
chance
Televised SMS games ok under art.3.4 (but not
implemented)
Fixed odd betting not regulated
Sports betting such as pool betting: light sanctions and
little risk of public action
Future Games of chance Act might regulate information
society services
(2) How is mobile gambling
regulated in Member States?
(4) Belgium
 Constitutional Court, March 2004
Partial application of Gambelli
 Case-law promotional game via SMS:
“SMS message nothing more than a technical carrier
used to participate in the game” (no stake involved)
But SMS price must = normal market price, otherwise
►stake►forbidden under 1999 Act
 Conclusion: low risk environment for mobile gaming
operators
(3) Conclusions and forecasts
 Likelihood of a Community Act: Swiss Institute’s report
 Increase in number of complaints to the Commission on
national gambling restrictions: Commission waiting for the
report before it takes any actions against MS
 Tendency clearly shifting towards deregulation: UK,
Germany, Belgium + some new MS (Tcheck Rep, Latvia)+
Mc Greevy’s statements in October
 Grey zones: The Netherlands (unsettled case-law), Italy
(ECJ referrals still pending), Nordic MS (Norway referred
to EFTA court)
 Some “black zones”: France (sports betting), Sweden
 Conclusion: prospects look rather positive in the mid-term
for the mobile gambling industry