EU court confirms online gambling cannot be restricted for economic reasons

The Court of Justice of the European Union (CJEU) has again confirmed the well-established principle that Member States cannot restrict national gambling markets to protect the commercial interests of incumbents or for other economic reasons.

The latest ruling, handed down Thursday, adds that national laws which prohibit cross-border gambling, irrespective of the form in which that activity is undertaken, are in breach of EU law.

The latest case originated in Italy and involved joined plaintiffs under the Biasci et al title (C-660/11ea), in which the Court concluded that national law that bars or restricts cross border gambling activities or that favours the (economic) interests of incumbents over operators licensed in another Member State is against EU law.

The ruling confirms in particular that such restrictions are illegal in terms of Articles 43 EC and 49 EC”  (paragraph 37), and that Member States must refrain “from protecting the market positions acquired by the existing operators, by providing, inter alia, that a minimum distance must be observed between the establishments of new licence holders and those of existing operators.” (paragraph 32)

The Court noted that “the principle of equal treatment, the obligation of transparency and the principle of legal certainty that the conditions of a tendering procedure [..] must be drawn up in a clear, precise and unequivocal way” (paragraph 38)

And the Court once again confirmed its settled Placanica jurisprudence stating that no sanctions may be applied on the basis of provisions which are contrary to EU law (paragraph 28).

The cases at hand are similar to the joined Costa and Cifone cases on which the CJEU ruled on 12 February 2012. In that ruling the CJEU confirmed the Member States’ obligation to ensure full transparency, legal certainty and equal treatment in licensing procedures.

New in the current ruling is the explicit conclusion that a Member State cannot have national legislation that restricts all cross border gambling activities

Maarten Haijer, secretary general of the EGBA trade association, commented; “We very much welcome the Court’s crystal clear conclusion that Member States cannot preclude cross border gambling activities in the EU. It confirms the CJEU’s regulatory “red lines” which member states cannot be allowed to cross. The time has come for the Commission to enforce those red lines in Member States’ national law – if needed through infringement proceedings.”

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