Professor Dr. Ehlermann, Senior Counsel at WilmerHale
and a former Director General of the legal Service of the European Commission. The European Commission has taken a first but important step in fulfilling its role as guardian of the Treaties by opening six new infringement cases andissuing two reasoned opinions againstthe gambling legislation of 7 Member States on 20 November 2013. For a cross border activity that is marked by a combination of a rapid introduction of national legislation and legal insecurity, the importance of ensuring the proper application of EU law cannot be overstated.Between the last gambling infringement action of April 2008 and the recent EC decision to open new cases, the CJEU has developed a substantial body of jurisprudence clarifying the way in which EU law applies to specific aspects of gambling legislation. It is clear that the Commission is taking this new jurisprudence, concerning inter alia establishment requirements, licensing regimes and the consistency of gambling policies, into account. For instance, whereas the 2008 cases only looked at sports betting regulation, the
new cases cover the whole range of gambling offerings. However, the most important and most demanding CJEU requirement, the requirement to have a consistent gambling policy across the board is fully applied to only one Member State.
Licensing procedures and conditions for the (restricted) provision of online gambling are under scrutiny in the letters of formal notice that have been sent to Belgium, Cyprus, the Czech Republic, Lithuania, Poland and Romania. The main concerns relate to unlawful requirements of “establishing a physical presence in the recipient Member State, prescribing a specific legal form on the
basis of national law, requesting prior consent of the authorities in relation to any changes in the shareholder structure or banning foreign capital with EU law”1 . Further, specific enquiries are directed at Belgium in relation to the issue of transparency, at Romania
with regard to coherence issues and at Cyprus as far as authorizations for different operators are concerned, with a special focus on equal treatment of gambling operators.
It is only regarding Sweden that the consistency of a gambling policy is being called into question and CJEU jurisprudence is taken fully into account. The EC finds that “Swedish rules for the establishment of an exclusive right for the offering of gambling services
do not comply with EU internal market rules”2. Two separate infringement proceedings have been opened to enforce compliance with EU law of the monopoly on online betting services and online poker services. The maincontentious point in both cases is the lack of consistency of the restrictive policy pursued by Sweden by means of a monopoly regime in terms of the applicable legislation as well as the unsystematic manner of the application of the said system along with advertising and sponsorship issues.
The EC simultaneously also decided to close the pending infringement case against the Finnish gambling monopoly as, according to the Commission, the legislation is in compliance with EU law. Given the consistency requirement and other stricter requirements that
monopolies need to fulfill due to their severe restriction of the Internal Market freedoms, it is desirable that the Commission provides a more detailed examination on how the Finnish monopoly fulfills the CJEU requirements.
Overall, the renewed interest in enforcing rules on gambling is a good first step. Still, as its intended effect is to create legal certainty and compliance with EU law, the Commission must also be ready to refer Member States to the CJEU. Based on the CJEU jurisprudence, there are several more new procedures that can be reasonably expected to be launched and the Commission can
only be commended to ensure a swift follow up.
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