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CJEU: AG's opinion states that criminal law cannot be used to enforce gambling legislations that do not comply with EU law


31 Mar 2011



Today Advocate General (AG) Bot issued his opinion in the Austrian gambling case Dickinger and Ömer  (C-347/09).

This case is the second in a row involving the Austrian gambling legislation. In September 2010 the Court of Justice of the European Union (CJEU) already concluded that the Austrian legislation is in conflict with EU law due to the lack of transparency in the licensing procedure and the requirement to have a seat in Austria.(1) 

According to the AG “a member state cannot enforce a criminal sanction in relation to an administrative formality [… which] is refused or made impossible by the member state concerned in violation of EU law” – Para. 49

Moreover, he confirms that the mutual recognition principle is relevant for the online gambling sector. According to AG Bot “the obligation of mutual recognition of authorizations delivered in other member states would become relevant” if monopolies are held incompatible with EU law – Para. 93

The Court has recently confirmed that the EU Treaty does not allow legislation that ´obliges [a] person to obtain a new licence, without due account being taken of the fact that the conditions of issue are, essentially, the same as those which apply to the licence already issued to that person in the second Member State´(2).  Requiring operators to fulfill essentially the same conditions they have already fulfilled in another Member State constitutes discrimination on grounds of nationality, which is prohibited by the Treaties.(3)  Creating a double regulatory burden is contrary to the principle of trust and sincere cooperation between the Member States and thereby violates fundamental EU law.

Finally, AG Bot recalls that a monopoly - given its very restrictive nature - can only comply with EU law if it delivers a particularly high level of consumer protection. The CJEU has already established that monopolies may not trivialize gambling, or give it a positive image, promote the fact that revenues are used for public interest activities or promote major winnings(4).

In this context, it is very doubtful whether these criteria are met in Austria given the massive advertising spending of the Lottery monopoly with € 39.37 million for 2010 alone(5) .

The AG´s opinion is not binding, but will be considered by the CJEU, together with the written contributions and the oral hearing that took place earlier this year. A date for the ruling has not yet been set. 

Sigrid Ligné, Secretary General of the EGBA comments: “The CJEU is continually refining its jurisprudence as also the recent critical rulings on the German and Austrian gambling legislation show. It provides ammunition to the Commission to finally refer the long pending infringement cases against the gambling legislation of a series of Member States."

She adds “As the Green paper on online gambling confirms that the Internet provides more sophisticated possibilities to track the transactions of each player compared to off-line gambling formats, it is time to work towards a sustainable solution and introduce EU harmonized rules for online gambling”.

(1) CJEU ruling of 9 September 2010 in Case C-64/08, Engelmann
(2) CJEU ruling of 25 January 2011 in Case C-382/08, Neukirchinger, para 44
(3) CJEU ruling of 25 January 2011 in Case C-382/08, Neukirchinger, para 38
(4) CJEU ruling of 8  September 2010 in case  C-316/07, Stoß, para 103
(5) Source: Austrian newspaper Wirtschaftsblatt, 30 March 2011

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For further information or comment please contact:
Sigrid Ligné: +32 2 554 08 99

About EGBA

The European Gaming and Betting Association is an association of leading European gaming and betting operators, BetClic,, Digibet, Expekt, Interwetten and Unibet. EGBA is a Brussels-based non-profit association. It promotes the right of private gaming and betting operators that are regulated and licensed in one Member State to a fair market access throughout the European Union. Online gaming and betting is a fast growing market, but will remain for the next decades a limited part of the overall European gaming market in which the traditional land based offer is expected to grow from € 79.6 Billion GGR in 2009 to € 83.7 Billion GGR in 2012, thus keeping the lion’s share with 87% of the market. Source: H2 Gambling Capital, April 2010.