Gambling Restrictions upon Arts. 43 and 49 EC Treaty in Belgium

Justification

• National measure
• Compatibility with EC law, in particular with the principle of proportionality

Public order, money laundering crime

National measure

• Section 4 of the Act of 7 May 1999 (MB 30.12.1999) prohibits the organization of gambling, except legal authorization.
• Section 1 of the Act of 26 June 1963 (MB 25.12.1963) prohibits the organization of paris competitions on results of sporting events other than horse racing, unless special permission. The organization of horse races in paris in Belgium is entrusted to the monopoly Belgian PMU (Article 66 of the CTA).
• Article 1 of the Law of 31 December 1851 (MB 01.07.1851) prohibits the organization of a public lottery, unless special permission. A National Lottery has been given the monopoly of organizing a national lottery, including lottery via the Internet (article 7 of the Act of 19 April 2002 (MB 30.12.1999).
• The number of casinos is 9 (Article 29 of the Act of 7 May 1999, MB 30.12.1999).
• The number of amusement arcades is set at 160 (Article 4 of the Law of May 7, 1999, MB 30.12.1999).
• The Arbitration Court overturned in its judgment No. 33/2004 of the Court of Arbitration for 10.03.2004, Article 3a, second paragraph, inserted by the Act of 19 April 2002, which provided: “At the except sections 7, 8, 39, 58, 59 and 60 of the penal provisions of Chapter VII relating to these items, this Act does not apply to gambling referred to in Article 3, § 1, paragraph 2 of the Act of 19 April 2002 on streamlining the operation and management of the National Lottery. “
• In judgment No. 33/2004 of 10 March 2004, the Court of Arbitration also takes care to annul Article 21§2 of the Law of 19 April 2002, reads as follows: “The gaming commission of chance can however perform control to the National Lottery. “
• Section 7 of the Act provides that “The activities referred to in Article 6, § 1, 1 ° to 4 °, are public service tasks. The National Lottery has a monopoly on the service referred to in Article 6, § 1, 1 °, and the right for the services referred to in Article 6 § 1, 1, 2 and 3, to use the company’s information tools. “
• The Court of Arbitration, however, retained in its decision No. 33/2004 of 10 March 2004 that the right granted to the National Lottery in Article 7 is in this case a monopoly (B 2.4): “With regard Article 7, it is to be noted that this article was amended by section 490 of the loiprogramme I of 24 December 2002 and that, therefore, the National Lottery no longer has a monopoly but only the right organizing games of chance via the “tools of the information Society”. The Council of Ministers and the National Lottery claim that with this amendment, the applicants in Case No. 2555 have no interest in their application for annulment of that article. Under section 4 of the Act of 7 May 1999 on games of chance, the operators of the private sector gambling are not allowed to offer to the public of gambling via the “tools of the Society information “. Indeed, the general principle of the law on gambling is to prohibit the use, in any place, in any form and by any direct or indirect way, one or more games of chance or gambling establishments (Doc talked, Senate, 1997-1998, No. 419/1 1, p 2,… No. 1-419 / 4, p. 25). Regard must therefore be held that if the law on gambling does not expressly cover the organization of games of chance via the “company’s information tools”, these gambling can not be deemed to be authorized. It follows from this that the “right” granted to the National Lottery is in this case a monopoly (…) “. The exclusive right granted to the National Lottery in Article 7 of the Law of 19 April 2002, however, is justified by the Belgian Court of Arbitration.

Compatibility with EC law, in particular with the principle of proportionality

• The Arbitration Court held that when an activity is a danger to society if it is not subject to conditions, the legislature is an adequate measure this activity by submitting to rules derogating from the rules applicable to commercial activities ordinary; judgment of 20 September 2001, No. 114/2001.
• The Arbitration Court considers that the exclusive right granted to the National Lottery has the effect of limiting illegal gambling in a consistent and systematic manner. Such a measure is not disproportionate to the objective pursued; judgment of 10 March 2004, No. 33/2004.
• In addition, a ban on lotteries other than authorized is not disproportionate to the objective pursued. The law does not in fact prohibits persons or organizations wishing to organize a lottery but does not meet the conditions for authorization to purchase tickets issued by an authorized lottery and to then themselves, these notes in circulation ; judgment of 18 February 1993, No. 12/93.
• The Court of Arbitration considers a numerus clausus casinos is not disproportionate to the objective pursued, namely the protection of the public interest; judgment of 13 July 2001, No. 100/01.
• The preparatory work of the Act of 7 May 1999 affirmed the principle of proportionality: “(…) to light (social protection objectives, the fight against addiction, money laundering, fraud and crime), limiting 9 the number of casinos follows from an assessment which does not appear unreasonable and based both on a comparison with the number of people (…) and historical considerations profitability “(Doc. Parl., House , 1998-1999, No. 1795/8, p. 52).
• The Court of Arbitration considers a numerus clausus of amusement arcades is not disproportionate to the objective pursued, namely the protection of the public interest; cf. the judgment of 3 May 2000, No. 52/2000
• The preparatory work of the Law of 7 May 1999 affirmed the principle of proportionality “to light (social protection objectives, the fight against addiction, money laundering, crime and fraud), the limitation to 180 number of amusement arcades follows from an assessment which does not appear unreasonable and based both on a report of an automatic games room for 50,000 inhabitants and considerations of profitability “(Doc. Parl. the House, 1998-1999, No. 441/7, p. 22-23).
• The judgment of the Court of Arbitration of 10 March 2004, No. 33/2004, No. B 8.2: “The distinguishing criterion – the nature of the organizing institution – is not relevant to the objective pursued by the legislature. The goal, according to the legislature to exclude the application of the law on gambling taking account of possible problems of interpretation and others can not justify that some articles of the Law on games of chance are not made applicable by virtue of the Act, the National Lottery, gambling establishments of the National Lottery and gambling organized by the National Lottery. The application of the provisions of the Law on games of chance via the royal decrees to take or management contracts to be concluded is contingently. No legislative provision requiring the executive to respect all the principles of the law on gambling regarding the National Lottery. It is therefore possible that the age requirement, the specific protection regime, conditions of location and similar items do not apply to these gambling establishments “Accordingly, the Court annulled the second paragraph Article 3a of the Law of 7 May 1999, inserted by section 39 of the 2002 Act.
• The judgment of the Court of Arbitration of 10 March 2004, No. 33/2004, No. B 15 and B 16: “Given that under Article 21 § 2 of the Act of 19 April 2002, the Committee on gambling can not enter the buildings of the National Lottery, we do not see how it can exercise effective control, especially as some games are linked to the computer system of the National Lottery. The potential abuse of control is almost impossible, since according to the law of 19 April 2002, the controllers do not have access to the building. This means they do not have access to the source of information, the central computer of the National Lottery that contains the data to make the necessary investigations. The measure taken by the legislature is not proportionate to the aim pursued. In order to limit the control of the commission of gambling games of chance offered by the National Lottery, it is not necessary to prohibit access to the building of the National Lottery. Moreover, by prohibiting access to the building, the legislator denies the commission of gambling in the ability to control gambling organized with tools of the information society. “.
• Compared to offer games of chance via the “tools of the information society” operated by the National Lottery, the memory of the law of 19 April 2002 states that: “The Government therefore think that the best solution in this area is the promotion of the “pipeline politics” by the authority from the National Lottery by granting more power autonomy and extending its tasks within the existing legal framework and strictly controlled. By constraining the National Lottery (as required, for example, in the UK, for obtaining a new lottery license) to use new technologies (Internet and other interactive services) could lead a policy of channeling “general” more effective, which attracts players with a competitive and attractive national Lottery. In this way, the activities of licensed operators of gambling and sports paris to “profit-making” would be slanted and higher volume of existing revenue would go to the authority, which, according to European case law, would be the best method to conduct a “pipeline politics”. Such a policy fits perfectly with European economic law which, as the Advocate General Gulmann stated in Schindler, the rules of competition in lotteries and gambling do not have any relevance . In fact, by reducing gambling activities “lucrative” in favor of the National Lottery, a balance is achieved in Belgian politics, able to pass the test of European law. Belgian politics can be anchored on two pillars: the “profit” sector under the control of the Committee on gambling and the non-profit sector, ie mainly the National Lottery under the control of the Government. In many Member States of the European Union, public lotteries (that is to say, services and / or public companies, semi-private and private operators operators) are managed and controlled by others instances than other games (money). Until now, this was also the case for Belgium. The need for greater coherence and coordination of the policy of the National Lottery on the one hand and the private sector of the other games of chance, is clear from the recent discussions in the media about it. Unlike the private sector, the National Lottery does not decide for itself which lottery games are offered to the public. National Lottery organizes public lotteries, task entrusted to it by the King. It is therefore the Authority decides which lotteries are offered according to what terms of play. A possible batches plane is defined by the King. Such management substantially improves the possibilities to pursue a policy leading to the decreased risk of gambling addiction. “
• Based on the preparatory work of the Law of 19 April 2002, the Arbitration Court concluded in its judgment No 33/2004 of 10 March 2004, (No. B 11.4) “The impugned Act of 19 April 2002 to limit freedom to provide services. “This restriction, however, is justified by the Court (B 11.4): “The objective of the impugned legislation is to” optimize the channeling political authority “, especially in the gaming sector and the” idea is […] not just the National Lottery encourages the game or have a broadening effect on the market “(Doc. parl., Bedroom, 2000-2001, DOC 50-1339 / 001, p. 65). Indeed, the law allows business to pursue a policy to limit a consistent and systematic activities related to paris. It should be noted in this regard that under Article 3, § 3 of the contested legislation, the National Lottery, alongside the development of commercial methods to promote public lotteries, paris, contests and games of chance which it has the organization also seeks to organize information campaigns on the economic, social and psychological risks of gambling addiction and to work in conjunction with the relevant authorities and various associations in the sector, a active and coordinated policy of prevention and support for gambling. The contested measure is reasonably justified. The legislature has to consider that the granting of an exclusive right to the National Lottery, related to the granting to the same institution with the aforementioned tasks in the prevention of gambling addiction, would have the effect of limiting the games of illegal gambling in a way coherent, systematic and preventing their exploitation for fraudulent or criminal purposes. “

Consumer protection

National measure

• National measures listed above also guarantee consumer protection. Belgian legislation does not distinguish between consumer protection protection of other public interests. Therefore, the above reasoning applies by analogy.

Compatibility with EC law, in particular with the principle of proportionality

• Ibid.

Other grounds: Media pluralism

National measure

• Pursuant to Section 23 of the Act of 19 April 2002 on streamlining the operation of the National Lottery, a subsidy allocation plan of the Belgian National Lottery for the benefit of charities (ia the King Baudouin Foundation, Child Focus etc.) is set each year by royal decree.