Austrian online gambling advert restrictions criticised

European Court of Justice Advocate General Mazak was critical of Austria’s restrictions on internet gambling advertising this week, commenting that these are discriminatory and a potentially concealed total ban for cross-border advertising.

The Austrian Gambling Act had previously banned all advertising for non-Austrian based gambling operators. After its amendment in 2009, in reaction to an infringement procedure initiated by the European Commission, it only allows cross-border gambling advertising if the level of consumer protection in the foreign Member State is at least equal to the Austrian protection.

AG Mazak appears to be of the opinion that this provision is against EU law.

Commenting on the AG’s opinion, Maarten Haijer, Director for Regulatory Affairs at the trade body European Gaming and Betting Association, said:

“We welcome AG Mazak’s opinion also for pointing out that the actual level of protection provided by the operator should be considered. All EGBA members comply with the agreement on Responsible Remote Gambling Measures that was agreed in the context of the European Standardisation Committee.

“The AG confirms that assessing whether consumer laws in different Member States are equal is highly doubtful in practice due to the lack of harmonisation at EU level. It also begs the question why European consumers are still subject to different protection levels. It is time to agree on a common set of European consumer protection rules for gambling.”

In his opinion, AG Mazak commented: “I wish to repeat my doubts as to the possibility of actually comparing the level of protection of gamblers in different legal systems, given the lack of harmonisation in the area of gambling and games of chance, as well as the diversity of national legislation in this area.”

“The system of prior authorisation in question could represent a ‘hidden’ total prohibition of the advertising of foreign casinos,” he said, adding that such a pre-authorisation process leads, ultimately, to discrimination based on the origin of the applicant.

Finally AG Mazak noted that the grant of a permit to advertise gambling in Austria depends solely on the content of the legislation of the Member State, without taking into account the actual level of protection provided by the casino operator.

The AG was basing his opinion on the Hit and Hit Larix case (C-176/11) now before the Court of Justice of the European Union.