A European View of the Proposed Gambling Law

1. A European View of the Proposed Gambling Law Waarheen met kansspelen in België? Juridische analyse van de toekomst van het Belgische kansspelbeleid 30 June 2008 - Leuven, Belgium Alan Littler (a.d.littler@uvt.nl) Tilburg Law and Economics Center (TILEC) / Faculty of Law Tilburg University, the Netherlands

2. Aim & contents of today’s presentation • To provide an overview of the relationship between the Internal Market and the regulation of gambling: • Introduce some ideas as to how gambling, and the regulation of gambling, fit into the Internal Market • Understand the case-law of the European Court of Justice • Appreciate the limits of the current case-law • Pending case-law and infringement proceedings • Realise that secondary legislation is of relatively limited importance • Identify possible problems regarding the amendment of the Law of 7 May 1999

3. Gambling, the regulation of gambling & the Internal Market • Different forms of gambling • Different models of regulation • Prohibition • Exclusive rights model (public monopolies) • Licensing model • Single operator (monopoly following competition) • Restricted quantity of licences • Unlimited quantity of licences • Online: closed/import & export/export only Different models (& application thereof) have different capacities for respecting Community law, if only the requirements of Community law were clear

4. Case-law of the ECJ • Cases which directly concern the provision of gambling: • C-275/92 Schindler (24 Mar. ‘94) • C-124/97 Läärä(21 Oct. ‘99) • C-67/98Zenatti (21 Oct. ‘99) • C-6/01 Anomar (11 Sept. ‘03) • C-243/01Gambelli (6 Nov. ‘03) • C-42/02Lindman(13 Nov. ‘03) • C-338/04Placanica (6 Mar. ‘07) • Cases which relate to other aspects of the gambling market: • C-338/02 Fixtures Marketing (9 Nov. ‘04) – databases • C-260/04 Comm v. Italy (13 Sept. ‘07) – renewal of licences • C-432/05 Unibet (14 Mar. ‘07) – judicial protection

5. Case-law of the ECJ: cases which directly concern the provision of gambling (I) • C-275/92 Schindler • Gambling activities are services within the meaning of the EC Treaty • Lotteries have a ‘peculiar nature’, based on 4 elements • Moral, religious & cultural aspects • High risks of crime & fraud • Damaging individual & social consequences • Generate revenues for benevolent or public interest activities • Only the last element cannot form a basis for restricting the cross-border provision of gambling services

6. Case-law of the ECJ: cases which directly concern the provision of gambling (II) • C-124/97 Läärä • When assessing whether a restriction can be justified attention does not have to be paid “systems of protection” used in other Member States • C-67/98Zenatti • National legislation must be genuinely directed at limiting the harmful affects which are given as reasons to justify restrictions on cross-border services • C-243/01Gambelli • Develops notion of ‘systematic & coherent’ policy • Margin of discretion of Member States is reduced • C-42/02Lindman • Evidence must show causal relationship between aim of restrictive measure & actual danger

7. Case-law of the ECJ: cases which directly concern the provision of gambling (III) • C-338/04Placanica • Restrictions on the number of operators – must reflect a ‘genuine diminution of gambling opportunities’, limitation must be consistent and systematic • Channelling gambling into a controlled environment to combat crime & fraud can constitute an objective justification for a restrictive measure • In such a context the expansion of gambling services was deemed compatible with the aims of the legislation • Expansion could include advertising, extending the range of games and using new distribution methods

8. Limits of the case-law • Member States are free to define the objectives and standards of national gambling policies; the ECJ is more interested in the application thereof • Finding a restriction to be contrary to EC law is unlikely to lead to the fall of the regulatory model but the amendment of the offending requirement(s) • Regulatory regimes can migrate to new means of distance communication – leading to the replication of off-line models in the online world?

9. Pending case-law & infringement proceedings • Preliminary references before the ECJ, from: • Austria (C-64/08) • Belgium (C-525/09) • Germany (C-409/06, Joined Cases C-358/07, C-359/07, C-360/07, C-409/07 & C-410/07, & C-46/08) • France (C-212/08) • Italy (C-395/05 & C-397/05) • Netherlands (questions of the Raad van Staat of 14 May ’08 in Betfair v De Lotto proceedings) • Infringement proceedings of the European Commission

10. Limited importance of secondary legislation • Directives which include gambling in their scope do not contain any harmonisation measures but are of a procedural nature • Distance Selling Directive (97/7/EC) – procedural/contractual issues for B2C contracts concluded at a distance • Information Society Directive (98/48/EC) – notification procedure • Directives using the ‘country of origin’ principle and the Services Directive exclude gambling • E-Commerce Directive (00/31/EC) • Television Without Frontiers Directive (89/552/EC) as amended by the Audiovisual Services Directive (07/65/EC) • Services Directive (06/123/EC)

11. Amendment s/en: loi du 7 mai 1999/wet van 7 mei 1999