Presentation on theme: "Gambling: recent developments & likely evolutions in Europe Evelyn Heffermehl ULYS law firm Member of the Brussels Bar."— Presentation transcript:
Gambling: recent developments & likely evolutions in Europe Evelyn Heffermehl ULYS law firm Member of the Brussels Bar
Content (I)Services directive: exclusion of gambling and consequences (II)Infringement proceedings against 7 Member States: what next? (III)Advocate General’s opinion in Placanica (IV)Swiss Institute report (V)Quick overview: Italy, Germany, France, Belgium, EFTA (Norway) (VI)Likely evolutions
Gambling: recent developments & likely evolutions in Europe (I) 16 February 2006: exclusion of gambling from Services directive by EP Council maintained the exclusion last week: why? Political reasons: gambling Timing: Swiss Institute report (likely basis for a sector specific act?) Ongoing infringements Other priorities (!)
Gambling: recent developments & likely evolutions in Europe Consequences (1) Legal framework unchanged: Gambling services = services (Schindler)► article 49 EC Treaty Possible restrictions for imperative reasons of general interest (consumer protection, fight against fraud) + proof of a consistent gaming policy (Gambelli).
Gambling: recent developments & likely evolutions in Europe Consequences (2) No legal certainty: online gambling services still subject to differing national interpretations & to Commission case-by-case assessment: discretionary power to investigate complaints (art. 226 EC Treaty) ► ECJ last resort Time consuming: internal market affairs ► 25 commissioners unanimity (rise of competition complaints?) More ECJ cases expected ►preliminary ruling references (Italy ISP case?)
Gambling: recent developments & likely evolutions in Europe (II) 4th April: infringement procedures against 7 MS Letter of formal notice sent to Denmark, Finland, Germany, Hungary, Italy, the Netherlands, Sweden Sports betting markets only What next? Reasoned Opinion, ECJ last resort Likely market opening for sports betting (+ German constitutional court decision, Placanica)
Gambling: recent developments & likely evolutions in Europe (III) ECJ Placanica case Case referred to the ECJ by national courts due to conflict between ECJ case- law (Gambelli) & Italian Supreme Court decision. Italian legislation confers exclusivity on bets to those who hold a licence from the State under criminal sanctions (law 401/89) Local intermediaries collecting bets for Stanley Intern. Betting sued AG referred to Gambelli principles (adequacy, proportionality, non- discrimination) but went further: AG insisted on prohibition of double controls under community law when company is already subject to tight control in its country of establishment. Clarified the non-discrimination aspect and stated that the requirement of establishment before being granted a licence is discriminatory against companies established outside. ECJ not bound but likely to follow AG conclusions
Gambling: recent developments & likely evolutions in Europe (IV) 24th April: release of draft Study on gambling services in the internal market “Evaluate how differing laws in the field of gambling services impact upon smooth functioning of the internal market” Stakeholders’ meeting held in Geneva & comments sent to the Swiss Institute June 2006: Final version► Unlikely basis for a gambling Act: only 20% of stakeholders have answered. Change will also come from other factors
Gambling: recent developments & likely evolutions in Europe (V) National overview Italy: AAMS decree black lists 684 gaming operators (national and private): far reaching Inconsistent with: Notification directive: nullity under ECJ case-law Article EC Treaty, Gambelli E-commerce directive: no obligations on ISP to monitor information ECHR : freedom of expression Actions at European and national level under way LFN sent to Italy concerning restrictive gaming legislation
(V) National overview: Germany Constitutional court decision, 28 March 2006 restrictions inconsistent with the Constitution: Court referred to Gambelli criteria leaves up to the legislator the task of drafting new law: 2 alternative scenarios Opening of gaming market (de-regulation through regulation: licences) State monopoly: unlikely scenario Until then, criminal courts to evaluate the scope of the provisions punishing illegal gaming: supremacy of Community law. Gambling: recent developments & likely evolutions in Europe
(V) National overview: France (1) Main casino operator complaint lodged against the French state & the FDJ on basis of abuse of dominant position FDJ is sole authorized to offer online gambling services FDJ is offering more and more casino style games Casino operators can’t compete and are discriminated against Abuse consists in: the extension of FDJ’s dominant position to the online gambling market, the elimination of competition on a neighbouring market the discrimination between casino operators and the FDJ To be followed… Actions also under way at the national level
Gambling: recent developments & likely evolutions in Europe (V) National overview: France (2) Decree on the organisation and exploitation of lottery games imposing obligations on the FDJ such as: ensuring the security and reliability of the games and the transparency of their operation controlling the offer of games in view of combating fraud, crime and money laundering preventing gambling addiction not inciting people aged under 16 to play. Advisory committee for responsible gaming policy created Aim: compliance with Gambelli after exclusion of gambling services from SD But decree will not prevent European actions against France
Gambling: recent developments & likely evolutions in Europe (V) National overview Belgium : draft legislative proposal on games of chance would allow (limited) number of online licences for betting shops and land based casino operators
Gambling: recent developments & likely evolutions in Europe (V) National overview Important development: EFTA Norway brought to the EFTA court by ESA (// Commission) for violation of the EEA agreement: gaming machine monopoly contrary to free movement of services provisions: sole country brought to Court by European Institution. Question: why hasn’t the Commission been proceeding as severely against MS?
Gambling: recent developments & likely evolutions in Europe (VI) Likely evolutions, possible scenarios Slow but steady opening of sports betting market (German decision, Placanica, 7 infringement proceedings): acceleration of EU scrutiny lately European regulatory act still uncertain: Swiss report final version awaited + tax harmonisation ? Likelihood of increase in number of competition complaint: FDJ example Exclusion of gambling services ►only apparent victory for monopolies