Philippe Vlaemminck
Vlaemminck & Partners bvba 2009
Copyright
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Schindler case: C-275/92
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Läärä case: C-124/97
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EFTA Ladbrokes case: E-3/06
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Moral, religious and cultural considerations attached to lotteries
Justify wide margin of discretion for Member States to determine
what is required to protect players and to maintain order in society:
 Manner in which lotteries are operated
 Size of the stakes
 Allocation of profits
Extent of protection: MS can decide whether it is necessary totally or
partially to prohibit activities or merely to restrict them
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Mere fact that MS has opted for a system of protection which
differs from that adopted by another MS cannot affect the
assessment of the need for, and proportionality of the
provisions enacted.
Provisions must be assessed solely by reference to objectives
pursued by the MS concerned and the level of protection it
intends to provide
This case law doesn’t allow a country of origin approach!
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in case the restrictions maintained are found to be lawful: MS
has the right to ban the cross border promotion and
provision of games of chance, no matter whether they are
lawful in the state of origin or not
Even if restrictions are found to be unlawful, MS can still
require a national license in view of the possible differences
in the level of protection desired in the MS concerned (par.
59)
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EFTA Court has not accepted the application of the principle
of mutual recognition, as was brought forward by Ladbrokes
Par.85: “even if the legislation and practice in the home state
of the operator ensures a high level of protection in relation
to the sociological features characterizing that state, this may
not necessarily amount to the same level of protection with
respect to the features characterizing the state where the
services are to be provided”
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ECJ confirmed its previous case law in Schindler, Läärä, etc by
acknowledging yet again the discretionary power of the MS in
the field of gambling
ECJ extended its previous case law on the validity of an
exclusive right in the gambling sector to an exclusive right
system regarding the online provision of gambling services
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Par 67:
ECJ acknowledges that the grant of exclusive rights to operate
games of chance via the internet to a single operator, which is
subject to strict control by the public authorities, may, in
circumstances such as in the proceedings, confine the
operation of gambling within controlled channels and be
regarded as appropriate for the purpose of protecting
consumers against fraud on the part of the operators.
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Most important achievement=ECJ explicitly denied application of
principle of mutual recognition in the gambling sector (par 69): in
the absence of Community harmonization, a Member State is
entitled to take the view that the mere fact that an operator such as
Bwin lawfully offers gambling services via the internet in another
Member State, in which it is established and where it is in principle
already subject to statutory conditions and controls on the part of
the competent authorities in that State, cannot be regarded as
amounting to a sufficient assurance that national consumers will be
protected against the risks of fraud and crime, in the light of the
difficulties liable to be encountered in such a context by the
authorities of the Member State of establishment in assessing the
professional qualities and integrity of operators.
Impact?
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End of gambling hubs like Malta and Gibraltar!
Competent authorities in MS of establishment cannot sufficiently
guarantee the integrity and professional quality of operators
providing their services in another MS
MS of residence of the consumer can maintain its own restrictive
conditions and can legitimately prohibit or restrict the access to
their territory for operators established in other jurisdictions
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Answer to preliminary question doesn’t leave any room for
Interpretation and proportionality assessment: “ article 49 EC does not
preclude legislation of a Member State, such as that at issue in the
main proceedings, which prohibits operators such as Bwin, which are
established in other Member States, in which they lawfully provide
similar services, from offering games of chance via the internet within
the territory of that Member State
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Breakthrough ruling: ECJ didn’t refer matter back to national judge for
interpretation in this specific case – ruled itself that MS is entitled to prohibit
the provision of online gambling services within its territory by an operator
established in another MS
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ECJ ruling in Liga Portuguesa de Futebol Profissional case is not an
isolated ruling: it follows the line of the previous case law related to
gambling services
This time the ECJ denied the application of the principle of mutual
recognition in an explicit way!
Impact on all national restrictive regimes, not only limited to
Portugal!
Guideline for political debate on gambling within EU institutions: no
country of origin approach can be accepted!
Thank you for your attention!
Vlaemminck & Partners bvba
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Avenue Louise 480 (5th floor)
1050 Brussels
Tel + 32 9 787 97 10
Fax + 32 2 787 97 19
Ph.Vlaemminck@Vlaemminck.com
www.vlaemminck.com