20 November 2013. Today the European Commission launched formal infringement proceedings against the online gambling legislation of 6 Member States and issued 2 ‘reasoned opinions’ against Sweden for failing to comply with EU law. This move follows repeated calls from the European Parliament for the Commission to act as the Guardian of the Treaties and significant legal clarifications by the Court of Justice on how the Treaty applies to national gambling legislation. Similar decisions against other Member States are expected to follow.
The Commission sent letters of formal notice (1) to Belgium, Cyprus, the Czech Republic, Lithuania, Poland and Romania with regard to their online gambling legislation (see link for Commission press release). Sweden, which already was subject to an infringement proceeding, was today sent 2 reasoned opinions, formal requests to bring its legislation in conformity with EU law rules and the last step before potential litigation at the Court of Justice. Sweden has a 2 month deadline to reply to the Commission.
These are the first series of decisions from the European Commission regarding outstanding complaints and pending infringement cases against over 20 Member States (see link). Whilst the Commission has closed some complaints, cases against inter alia France, Germany, Greece, Hungary and the Netherlands remain under investigation and are awaiting formal decision. The decision to restart gambling infringement proceedings is a significant step as its last comparable action dates back to February 2008.
The Commission´s action follows repeated calls from the European Parliament - most recently in its June 2013 report ‘Online Gambling in the Internal Market’ – for the Commission to continue to monitor and enforce compliance of national laws and practices with EU law,…,and to launch infringements procedures against those Member States that appear to breach EU law” (see link).
It is based on recent clarifications by the CJEU on how the Treaty applies to the (online) gambling sector (see link). National rules which prohibit gambling services authorized in other Member States were found to restrict the freedom of residents to receive services offered in other Member States. Furthermore, gambling licensing regimes must be transparent, non-discriminating and non-arbitrary. Most importantly, the CJEU has clarified that national regulation must be overall consistent in its objectives and measures and that it is for the Member State to prove that imposed restrictive measures are suitable and necessary.
Maarten Haijer, Secretary General of EGBA, commented; “Today´s decision by the Commission is highly significant as it will bring further legal clarity to the online gambling market in the EU. We commend Commissioner Barnier and his services for their perseverance and commitment to making sure gambling regulation functions properly. EGBA urges Member States to use this opportunity to put in place effective, commercially viable gambling legislation which takes into account the CJEU requirements and to avoid the need for litigation at the Court of Justice.”
Haijer adds; “It is perfectly well possible to achieve public interest objectives in a consistent and systematic manner without being unnecessarily restrictive and in compliance with EU law. EGBA is fully committed to achieving public policy objectives such as a high level of consumer protection. In fact, all EGBA members are compulsorily audited on their compliance with the CEN agreement on ‘Responsible Remote Gambling Measures.’(2)”
For more information, please contact: Maarten Haijer, Secretary General of EGBA:
+32 2 554 08 90, firstname.lastname@example.org
Notes for editors
(1) Infringement procedures
Where a Member State fails to comply with EU law, the Commission has powers of its own (action for non-compliance) to try to bring the infringement to an end and, where necessary, may refer the case to the European Court of Justice. The first phase is the pre-litigation phase. The purpose of this pre-litigation stage is to enable the Member State to conform voluntarily with the requirements of the Treaty.
The letter of formal notice represents the first stage in the pre-litigation procedure, during which the Commission requests a Member State to submit its observations on an identified problem regarding the application of EU law.
The second and final stage in the pre-litigation phase is the issuance of a reasoned opinion that sets out the Commission’s position on the infringement and determines the subject matter of any action, requesting the Member State to comply. The reasoned opinion must give a coherent and detailed statement of the reasons that have led it to conclude that the Member State concerned has failed to fulfil one or more of its obligations under the Treaties. 4 Member States (Sweden, Hungary, the Netherlands and Greece) have already received a reasoned opinion.
Referral by the Commission to the Court of Justice opens the litigation procedure.
(2) CEN agreement on ‘Responsible Remote Gambling Measures
The European Committee for Standardization (CEN) has published the CEN Workshop Agreement 'Responsible Remote Gambling Measures' (CWA 16259: 2011) aimed at securing a high level of protection of online players in the European Union (see link).
The CWA is a voluntary consensus agreement and provides for a total of 134 implementing measures that are aimed at attaining 9 policy objectives, including the protection of vulnerable customers and the prevention of underage gambling. The CWA also serves to inform policy makers at national and EU level of the standards needed to maintain a responsible, safe and secure remote gambling environment. EGBA members are compulsorily audited on their compliance with the CWA.
CWA 16259: 2011 - ‘Responsible Remote Gambling Measures’ can be obtained from the 31 CEN National Members.
The EGBA is an association of leading European gaming and betting operators Bet-at-home.com, BetClic, bwinparty, Digibet, Expekt, and Unibet. The Gibraltar Betting and Gaming Association (GBGA) is an affiliate member of EGBA. 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 from € 79.7 Billion GGR in 2012 to € 83 Billion GGR in 2015, thus keeping the lion’s share with 85% of the market. Source: H2 Gambling Capital, September 2013.