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European Economic Area case-law on games of chance

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Since its land-mark decisions in Schindler (1994) and Gambelli (2003), the Court of Justice of the European Union (CJEU or “Court”) has delivered over 20 judgments on games of chance in the area of the free movement of services and the freedom of establishment. In recent years the Court’s jurisprudence has increasingly dealt with national rules on online gambling.

The Court’s case-law in this field has been developed mainly on the basis of references for preliminary rulings from national courts under Article 267 Treaty on the functioning of the European Union (TFEU). In those cases, the Court provided general principles and criteria for the interpretation of Articles 49 and 56 TFEU in the area of games of chance, so as to enable the referring national court to take the final decision on the compatibility of the relevant national law with EU law.

The European Free Trade Association (EFTA) Court has also established case-law with respect to the fundamental freedoms of the internal market in the area of gambling. It issued two judgments in 2007.

This section provides a summary of the main jurisprudence developed by the CJEU and the EFTA Court (“the courts”) on gambling rules. It is structured in the following manner:

the qualification of the organisation of games of chance as an “economic activity” covered by the fundamental freedoms of the Treaty;

restrictions on the free movement of services and the freedom of establishment;

recognised reasons of general interest which can justify restrictions;

specific characteristics of gambling services provided via the Internet;

criteria for assessing the proportionality (suitability and necessity) of the national restrictions under the different types of regulatory frameworks: a ban on games of chance, an exclusive right/monopoly and a system of licences, as well as in the case of specific corporate requirements.

The main focus of this section is on the circumstances under which restrictive national gambling laws can or cannot be justified on grounds related to the general interest, which are also the basis for the Commission to assess the compatibility of national gambling laws under the Treaty.

It is important to underline that some of the principles enshrined in the case-law of the CJEU and the EFTA Court on gambling apply both to the online and the land-based games of chance. Other features of the case-law are specifically relevant for games of chance offered via the internet.This section deals with both channels.

In addition, the document is limited to case-law developed by the courts in the context of national rules on gambling and the Treaty provisions on the free movement of services and the freedom of establishment. The following table provides an overview of the relevant cases:

CJEU judgments and pending cases

Preliminary Rulings

Judgment of 24/03 1994 Schindler, C-275/92 ECR [1994] I-01039

Judgment of 21/09 1999 Läärä & Others, C-124/97 ECR [1999] I-06067

Judgment of 21/10 1999 Zenatti, C-67/98 ECR [1999] I-07289

Judgment of 11/09 2003 Anomar & Others, C-6/01 ECR [2003] I-8621

Judgment of 06/11 2003 Gambelli & Others, C-243/01 ECR [2003] I-13031

Judgment of 13/11 2003 Lindman, C-42/02 ECR [2003] I-13519,

Judgment of 06/03 2007 Placanica & Others, C-338/04, C-359/04 & C-360/04 ECR [2007] I-1891

Judgment of 08/09 2009 Liga Portuguesa de Futebol Profissional & Bwin International (Santa Casa), C-42/07 ECR [2009] I-7633

Judgment of 03/06 2010 Sporting Exchange & Others (Betfair), C-203/08 ECR [2010] I-4695

Judgment of 03/06 2010 Ladbrokes Betting & Gaming and Ladbrokes International, Case C-258/08 ECR [2010] I-4757

Judgment of 08/07 2010 Sjöberg & Gerdin, C-447 & C-448/08 ECR [2010] I-6921

Judgment of 08/09 2010 Winner Wetten, C-409/06 ECR [2010] I-8015

Judgment of 08/09 2010 Stoß & Others, C-316/07 etc. ECR [2010] I-8069

Judgment of 08/09 2010 Carmen Media Group, C-46/08 ECR [2010] I-8149

Judgment of 09/09 2010 Engelmann, C-64/08 ECR [2010] I-8219

Judgment of 30/06 2011 Zeturf, C-212/08 ECR [2011] I-0000

Judgment of 15/09 2011 Dickinger and Ömer, C-347/09 ECR [2011] I-0000

Judgment of 16/02 2012 Costa and Cifone, C-72/10 & C-77/10 ECR [2012] I-0000

Judgment of 12/07 2012 HIT and HIT LARIX, C-176/11 ECR [2012] I-0000

Judgment of 19/07 2012 SIA Garkalns, C-470/11 ECR [2012] I-0000

Pending Cases

Joined cases C-186/11 & C-209/11, Stanleybet International & Sportingbet [Opinion of the Advocate General of 20 September 2012]

Joined cases C-660/11 & C-8/12 Biasci & Rainone

Case C-390/12 Pfleger and others

EFTA Court Rulings

Judgment of 14/03/07, EFTA Surveillance Authority v The Kingdom of Norway (gaming machines), Case E- 1/06, EFTA Court Report 2007, p.11

Judgment of 30/05/07, Ladbrokes Ltd. v The Government of Norway, Ministry of Culture and Church Affairs and Ministry of Agriculture and Food (Ladbrokes), Case E-3/06, EFTA Court Report 2007, p.89

This section is not intended to provide an exhaustive overview of all EU and EFTA courts’ case-law that might be potentially relevant in future cases of national legislation on gambling, nor does it cover certain requirements of general application which are not limited to the gambling sector. For example, restrictions on the participation of foreign capital and certain banking requirements may also be incompatible with (secondary) EU law but are not dealt with here.(Such conditions should be assessed, for example, under Article 63 TFEU on the free movement of capital (e.g. for restrictions on participation of foreign capital in order to obtain national gambling licences) and/or Directive 2006/48/EC of the European Parliament and the Council of 14 June 2006 relating to the taking up and pursuit of the businesses of credit institutions (e.g. for requirement to use a national credit institution).

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