Transcript Remote gambling: the EU legal framework

Remote gambling:
the EU legal framework
Evelyn Heffermehl
Member of the Brussels Bar
ULYS
[email protected]
Warsaw
Friday, 18 November 2005
Remote gambling: the EU legal
framework
Which legal framework are we talking about?
(1) The EC Treaty
 article 50 EC Treaty: services are provided for
remuneration
 Article 49 ECT: freedom to provide services within
the Community
 Article 46 ECT: discriminatory restrictions ok if
public policy, public security, public health.
Remote gambling: the EU legal
framework
(2) The ECJ case-law
 Schindler, Zenatti and Läärä cases (1994-1999): non discriminatory
restrictions ok if
 Justified by imperative reasons of general interest: to curb harmful effects of
gambling
 Necessary and proportionate: must guarantee the achievement of the objective
pursued and not go beyond what is necessary.
 The Gambelli and Lindman cases (2003): limitation of possible 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
Remote gambling: the EU legal
framework
(3)Secondary EU law and initiatives of the Commission











E-commerce directive (2000): second report awaited 2005
Ensure free movement of information society services
Internal market clause
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
Proposal for a Directive on Services in the Internal Market (Jan 2004)
Country of Origin principle (//internal market clause)
Gambling excluded from COP
Remote gambling: the EU legal
framework
(3)Secondary EU law and initiatives of the Commission
 Gebhardt report on the services directive (April 2005)
 Complete exclusion of gambling
 To finance public budget
 To protect society at large
 MS have the right to impose restrictions on cross-border provision
of services to maintain social order and consumer protection
 Mutual recognition & Country of Destination
 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
Remote gambling: the EU legal
framework
(3) Secondary EU law and initiatives of the Commission
 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 cases
 Vote on Gebhardt report postponed until 21 November
2005
 EP’s plenary will probably vote in January 2006
Remote gambling: the EU legal
framework
(4)National case-law after Gambelli
 Very diverging, sometimes conflicting
 Decisions from the Supreme and Constitutional courts in Germany, the
Netherlands, Italy, France and others
 Germany
Supreme Court and Constitutional Court question the legality of
German gaming policy
 The Netherlands
Conflict between summary proceedings and main proceedings decisions
 Italy
Supreme court decision leads to ECJ referrals
District Court of Rome refuses to enforce Italian gaming
restrictions to a UK licensed bookmaker
Remote gambling: the EU legal
framework
(4)National case-law after Gambelli: Germany
 Landgericht München, 27 October 2003
 Held that the local gaming monopoly was not adopted and maintained
for reasons of public order, but mostly for tax reasons
 Not justified to impose on an Austrian licensed bookmaker an
obligation to obtain an additional German license: COP
 German Supreme Court, 1 April 2004
 Editor of an online newspaper cannot be held liable for inserting a link
to an Austrian licensed bookmaker
 Court questioned consistency of German gaming policy with Gambelli
 Referred to the LG decision
Remote gambling: the EU legal
framework
(4)National case-law after Gambelli: Germany
 German Federal Constitutional Court, 27 April 2005
 Doubts on the compatibility of the German cross-border
gaming restrictions (arti.248 StGb) with the requirements
of European law
 Necessity of in concreto analysis of the compliance of
these national restrictions with EU law and of the risks of
cross-border gambling for society
 Referral to the ECJ almost inevitable in e-gaming cases
 Questioned the proportionality of criminal repression
against gaming activities duly licensed in another MS
Remote gambling: the EU legal
framework
(4)National case-law after Gambelli: Germany
 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 but oral hearing
seems to indicate that there will be a liberalisation
of the German gaming market
Remote gambling: the EU legal
framework
(4)National
case-law after Gambelli : The Netherlands
 Supreme Court 18 February 2005: Summary proceedings
Maintains the exclusive rights of De Lotto and Holland Casino
 Court of Arnhem, 2 June 2004: Main proceedings, interim judgment
 Proof of a consistent gaming policy required
 Doubts on consistency with EU law
 Court of Arnhem, 31 August 2005
 Dutch online gaming restrictions consistent with EU law
 Foreign bookmakers must stop offering online services to Dutch
citizens
Remote gambling: the EU legal
framework
(4)National case-law after Gambelli: Italy










Supreme Court April 2004
Gaming restrictions compatible with EU law
Larino District Court, 2004
Referral to the ECJ: Court questions the consistency of gaming
restrictions with EU law by referring to the Supreme court’s decision
Other courts have also referred to the ECJ
Decisions awaited
Rome District Court, February 2005
Refused to enforce gaming restrictions to a UK licensed bookmaker
Italian law is not applicable to remote gaming operations
No infringement of the exclusive rights of the national operator
Remote gambling: the EU legal
framework
(4)National case-law after Gambelli: France
 TGI Paris, 8 July 2005
 Pari Mutuel Urbain 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
 Delocalization of gambling not easy: see Regulation
44/2001
Remote gambling: the EU legal
framework
(5) Conclusions and forecasts
 Diverging post-Gambelli case-law points out the need for a
Community act in the field of gambling
 Act would probably be sector specific (see exclusion of gambling
services from the Gebhardt report)
 Swiss Institute’s report will serve as a basis for a future EU act
 The number of complaints to the Commission on national gambling
restrictions have increased significantly
 Distortions are likely to increase as Great-Britain and Malta adopt a
more liberal approach towards online gambling
 ECJ referrals decision
 Second review of the e-commerce directive