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ECJ: Austrian gaming legislation contrary to EU law


09 Sep 2010



Time to harmonize gambling rules across the European Union

Brussels, 9 September 2010

In a decision published today (1) , the European Court of Justice ruled that the Austrian laws regulating the provision of gaming services are disproportionate and discriminatory and therefore not compliant with EU law.

Only a day after the landmark rulings issued against the German lottery and sports betting monopoly the ECJ out rightly rejects the Austrian gaming provisions as also being in clear breach of EU law.

The Court concluded on a number of questions which will not only lead Austria to modernize its legislation but will also directly impact other Member States:

    * “The obligation on persons holding concessions to operate gaming establishments to have their seat in Austria constitutes a restriction on freedom of establishment” (ECJ press release n°80/10)

    * “There are in fact various less restrictive measures available to monitor the activities and accounts of such operators. In addition, any undertaking established in a Member State can be supervised and have sanctions imposed on it, regardless of the place of residence of its managers. Moreover, there is nothing to prevent supervision being carried out on the premises of the establishments” (Idem)

    * “The absence of a competitive procedure when the concessions were granted to Casinos Austria AG does not comply with freedom of establishment and freedom to provide services” (Idem)

    * Tendering procedures “must be based on objective, non discriminatory criteria, known in advance, in such a way as to circumscribe the exercise of the authorities discretion so that it is not used arbitrarily” (Point 55 of “Engelmann ruling,” C-64/08)

Commenting on the case, Sigrid Ligné, Secretary General of the European Gaming and Betting Association said: “Today’s ruling against the Austrian gambling laws confirms clearly that Member States cannot require EU licensed online operators to be physically present on their territory. In the Digital age there are obviously other and more efficient means available to monitor the activities of the operators”.

”The European Commission has been given new legal arguments to pursue infringement procedures against several Member States that have similar provisions.  Commissioner Barnier has now a clear mandate to go ahead with the Green paper and to start discussions on EU regulation for the sector”, Ligné added.  

1  Engelmann, C-64/08


For further information or comment please contact:

Sigrid Ligné: +32 2 554 08 90

About EGBA

The EGBA is an association of leading European gaming and betting operators, BetClic, bwin, Digibet, Expekt, Interwetten, PartyGaming 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 € 70.5 Billion GGR in 2009 to € 76.5 Billion GGR in 2012, thus keeping the lion’s share with 86.2% of the market. Source: H2 Gambling Capital, January 2010.

Note to the editors:

The preliminary ruling system (under Article 267 TFEU, ex-Article 234 of the EC Treaty) enables national courts to ensure uniform application of EU law in all the Member States. The ECJ has jurisdiction to give preliminary rulings on the interpretation of EU law in relation to specific legal questions raised by the national courts. In such rulings the Court makes every effort to give a reply which will be of assistance in resolving the dispute, but it is for the referring court to draw the appropriate conclusions from that reply in a final decision.

Infringement procedures brought by the European Commission (under Article 258 TFEU, ex-Article 226 of the EC Treaty) allow the ECJ to give a judgment with regard to the compliance of national legislations with EC law. Under such procedure the ECJ does not just give its interpretation of E law on specific selective questions but is able to have a broader analysis assessing as well the factual situation at stake. Seven Member States (Denmark, Finland, France, Sweden, Hungary, the Netherlands and Greece) are currently subject to an infringement procedure in relation to their gambling legislation and have already received a reasoned opinion, the last procedural step before the start of an infringement case at the ECJ.