Transcript Remote Gambling Regulatory Intensive

Gambling: recent developments
& likely evolutions in Europe
Evelyn Heffermehl
ULYS law firm
Member of the Brussels Bar
Content
(I)
(II)
(III)
(IV)
(V)
(VI)
Services directive: exclusion of gambling and
consequences
Infringement proceedings against 7 Member
States: what next?
Advocate General’s opinion in Placanica
Swiss Institute report
Quick overview: Italy, Germany, France,
Belgium, EFTA (Norway)
Likely evolutions
Gambling: recent developments
& likely evolutions in Europe
(I) 16 February 2006: exclusion of gambling from
Services directive by EP
• Council maintained the exclusion last week: why?
 Political reasons: gambling
 Timing: Swiss Institute report (likely basis for a
sector specific act?)
 Ongoing infringements
 Other priorities (!)
Gambling: recent developments
& likely evolutions in Europe
• Consequences (1)
• Legal framework unchanged:
Gambling services = services (Schindler)►
article 49 EC Treaty
Possible restrictions for imperative reasons
of general interest (consumer protection,
fight against fraud) + proof of a consistent
gaming policy (Gambelli).
Gambling: recent developments
& likely evolutions in Europe
• Consequences (2)
• No legal certainty: online gambling services still
subject to differing national interpretations & to
Commission case-by-case assessment:
discretionary power to investigate complaints (art.
226 EC Treaty) ► ECJ last resort
• Time consuming: internal market affairs ► 25
commissioners unanimity (rise of competition
complaints?)
• More ECJ cases expected ►preliminary ruling
references (Italy ISP case?)
Gambling: recent developments
& likely evolutions in Europe
(II) 4th April: infringement procedures against 7 MS
 Letter of formal notice sent to Denmark, Finland,
Germany, Hungary, Italy, the Netherlands, Sweden
 Sports betting markets only
 What next? Reasoned Opinion, ECJ last resort
 Likely market opening for sports betting (+
German constitutional court decision, Placanica)
Gambling: recent developments
& likely evolutions in Europe
(III) ECJ Placanica case
• Case referred to the ECJ by national courts due to conflict between ECJ caselaw (Gambelli) & Italian Supreme Court decision.
• Italian legislation confers exclusivity on bets to those who hold a licence from
the State under criminal sanctions (law 401/89)
• Local intermediaries collecting bets for Stanley Intern. Betting sued
• AG referred to Gambelli principles (adequacy, proportionality, nondiscrimination) but went further:
 AG insisted on prohibition of double controls under community law when
company is already subject to tight control in its country of establishment.
 Clarified the non-discrimination aspect and stated that the requirement of
establishment before being granted a licence is discriminatory against
companies established outside.
• ECJ not bound but likely to follow AG conclusions
Gambling: recent developments
& likely evolutions in Europe
(IV) 24th April: release of draft Study on gambling services
in the internal market
 “Evaluate how differing laws in the field of gambling
services impact upon smooth functioning of the internal
market”
 Stakeholders’ meeting held in Geneva & comments sent to
the Swiss Institute
 June 2006: Final version►
 Unlikely basis for a gambling Act: only 20% of
stakeholders have answered.
 Change will also come from other factors
Gambling: recent developments
& likely evolutions in Europe
(V) National overview
• Italy: AAMS decree black lists 684 gaming
operators (national and private): far reaching
• Inconsistent with:
 Notification directive: nullity under ECJ case-law
 Article 43 + 49 EC Treaty, Gambelli
 E-commerce directive: no obligations on ISP to
monitor information
 ECHR : freedom of expression
• Actions at European and national level under way
• LFN sent to Italy concerning restrictive gaming
legislation
Gambling: recent developments
& likely evolutions in Europe
(V) National overview: Germany
• Constitutional court decision, 28 March 2006
 restrictions inconsistent with the Constitution: Court
referred to Gambelli criteria
 leaves up to the legislator the task of drafting new law: 2
alternative scenarios
 Opening of gaming market (de-regulation through
regulation: licences)
 State monopoly: unlikely scenario
 Until then, criminal courts to evaluate the scope of the
provisions punishing illegal gaming: supremacy of
Community law.
Gambling: recent developments
& likely evolutions in Europe
(V) National overview: France (1)
• Main casino operator complaint lodged against the French
state & the FDJ on basis of abuse of dominant position
• FDJ is sole authorized to offer online gambling services
• FDJ is offering more and more casino style games
• Casino operators can’t compete and are discriminated
against
• Abuse consists in:
 the extension of FDJ’s dominant position to the online
gambling market,
 the elimination of competition on a neighbouring market
 the discrimination between casino operators and the FDJ
• To be followed…
• Actions also under way at the national level
Gambling: recent developments
& likely evolutions in Europe
(V) National overview: France (2)
• Decree on the organisation and exploitation of lottery
games imposing obligations on the FDJ such as:
 ensuring the security and reliability of the games and the
transparency of their operation
 controlling the offer of games in view of combating fraud,
crime and money laundering
 preventing gambling addiction
 not inciting people aged under 16 to play.
• Advisory committee for responsible gaming policy created
• Aim: compliance with Gambelli after exclusion of
gambling services from SD
• But decree will not prevent European actions against
France
Gambling: recent developments
& likely evolutions in Europe
• (V) National overview
• Belgium : draft legislative proposal on
games of chance would allow (limited)
number of online licences for betting shops
and land based casino operators
Gambling: recent developments
& likely evolutions in Europe
• (V) National overview
• Important development: EFTA
 Norway brought to the EFTA court by ESA (//
Commission) for violation of the EEA agreement:
gaming machine monopoly contrary to free
movement of services provisions: sole country
brought to Court by European Institution.
 Question: why hasn’t the Commission been
proceeding as severely against MS?
Gambling: recent developments
& likely evolutions in Europe
(VI) Likely evolutions, possible scenarios
• Slow but steady opening of sports betting market
(German decision, Placanica, 7 infringement
proceedings): acceleration of EU scrutiny lately
• European regulatory act still uncertain: Swiss
report final version awaited + tax harmonisation ?
• Likelihood of increase in number of competition
complaint: FDJ example
• Exclusion of gambling services ►only apparent
victory for monopolies
Thank you for your attention
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