Gambling Law

Joined Cases C-338/04, C-359/04 and C-360/04 Criminal Proceedings against Massimiliano Placanica, Christian Palazzese, Angelo Sorricchio [2007] ECR I-1891; Case C-42/07 Liga Portuguesa de Futebol Profissional and Bwin International Ltd v. Departamento de Jogos da Santa Casa da Misericórdia de Lisboa [2009] ECR I-7633; Case C-203/08 Sporting Exchange Ltd. Trading as ‘Betfair’ v. Minister van Justitie [2010] ECR I-4695; Joined Cases C-316/07, C-358/07, C-359/07, C-360/07, C-409/07 and C-410/07 Markus Stoss et al. v Land Baden-Württemberg [2010] ECR I-8069.

Already in its first gambling case, the ECJ held that the organisation of games of chance (here, lotteries) constituted an economic activity that fell within the scope of the Treaty: Case C-275/92 Her Majesty’s Customs and Excise v. Gerhart Schindler and Jörg Schindler [1994] ECR I-1039, paragraph 19.

In Schindler, several Member States argued that the organisation of games of chance, namely lotteries, did not constitute an economic activity and the Treaty provisions therefore should not apply: Case C-275/92 Her Majesty’s Customs and Excise v. Gerhart Schindler and Jörg Schindler, cited above, paragraphs 16–17.

European Council (1992), p. 3.

For a more detailed account see Planzer (2014), pp. 224–228.

Commission (2011).

Commission (2012).

Commission (2014).

For comprehensive or partial exemption clauses see Article 135(1)(i) of the Council Directive 2006/112/EC of 28 November 2006 on the Common System of Value Added Tax (‘VAT-Directive’), OJ L 347, 11.12.2006; Recital 22 of the Preamble of the Directive 2010/13/EU of the European Parliament and the Council of 10 March 2010 on the Coordination of Certain Provisions Laid Down by Law, Regulation or Administrative Action in Member States Concerning the Provision of Audiovisual Media Services (‘Audiovisual Media Services Directive’), OJ L 95, 15.4.2010; Recital 25 of the Preamble and Article 2(2)(h) of the Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on Services in the Internal Market (‘Services Directive’), OJ L 376, 27.12.2006.

Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998 Amending Directive 98/34/EC Laying Down a Procedure for the Provision of Information in the Field of Technical Standards and Regulations (‘Information Society Directive’), OJ L 217, 5.8.1998.

Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the Protection of Consumers in Respect of Distance Contracts (‘Distance Selling Directive’), OJ L 144, 4.6.1997.

The fourth Anti-Money Laundering Directive (‘AMLD’), published in the Official Journal on 5 June 2015, has replaced the third AMLD. Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the Prevention of the Use of the Financial System for the Purposes of Money Laundering or Terrorist Financing, Amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and Repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC (‘4th AML Directive’), OJ L 141, 5.6.2015.

Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data (‘Data Protection Directive’), OJ L 281, 23.11.1995.

Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 Amending Directive 2002/22/EC on Universal Service and Users’ Rights Relating to Electronic Communications Networks and Services, and Directive 2002/58/EC Concerning the Processing of Personal Data and the Protection of Privacy in the Electronic Communications Sector and Regulation (EC) No 2006/2004 on Cooperation between National Authorities Responsible for the Enforcement of Consumer Protection Laws, OJ L 337, 18.12.2009.

Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 Concerning Unfair Business-to-Consumer Commercial Practices in the Internal Market and Amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’), OJ L 149, 11.6.2005.

On a few occasions, the Commission and Advocates General have applied further provisions of EEA primary law, including competition and State aid rules as well as EU fundamental rights: Planzer (2014), pp. 39–44 and 267–288.

Case C-275/92 Her Majesty’s Customs and Excise v. Gerhart Schindler and Jörg Schindler, cited above.

Case E-1/06 ESA v. Norway [2007] EFTA Ct. Rep. 8.

The ‘Oslo tingrett’ (the Oslo District Court) found the new legislation to be incompatible with EEA law. On appeal, the ‘Borgarting lagmannsrett’ (the Borgarting Court of Appeal) overruled this decision. Finally, the ‘Høyesterett’ (the Supreme Court) suspended proceedings after the decision of ESA to bring an infringement case against Norway before the EFTA Court.

The provisions at stake related to the freedom to provide services (Article 36 EEA, equivalent of Article 56 TFEU) and the freedom of establishment (Article 31 EEA, equivalent of Article 49 TFEU).

Case E-1/06 ESA v. Norway, cited above, paragraphs 44–46.

Case E-3/06 Ladbrokes Ltd. v. Norway [2007] EFTA Ct. Rep. 86.

The provisions at stake related to the freedom to provide services (Article 36 EEA, equivalent of Article 56 TFEU) and the freedom of establishment (Article 31 EEA, equivalent of Article 49 TFEU).

Case E-3/06 Ladbrokes Ltd. v. Norway, cited above, paragraph 45.

Case E-24/13 Casino Admiral AG v. Wolfgang Egger [2014] EFTA Ct. Rep. 732.

For the national judicial odyssey that had taken place prior to the EFTA Court’s judgment, see Verwaltungsgerichtshof, VGH 2012/030, judgment of 31 May 2012; Staatsgerichtshof, StGH 2012/114, judgment of 11 December 2012; Verwaltungsgerichtshof, VGH 2012/030a, judgment of 18 February 2013; Staatsgerichtshof, StGH 2013/44, decision of 29 October 2013.

Case C-203/08 Sporting Exchange Ltd. Trading as ‘Betfair’ v. Minister van Justitie, cited above; Joined Cases C-72/10 and C-77/10 Marcello Costa & Ugo Cifone ECLI:EU:C:2012:80; Case C-231/03 Coname [2005] ECR I-7287.

Case E-24/13 Casino Admiral AG v. Wolfgang Egger, cited above, paragraph 53.

ESA (2013) Case no 73436, complaint of 27 February 2013, event no 664971.

ESA (2014) Case no 73436, letter of formal notice of 22 January 2014, document no 693160, decision no l4/l4/COL.

Norwegian Government (2014) Case no 73436, reply to the letter of formal notice of 26 March 2014, document no 703627.

Baudenbacher (2008), pp. 22–31.

Article 3(2) SCA.

Case C-275/92 Her Majesty’s Customs and Excise v. Gerhart Schindler and Jörg Schindler, cited above, paragraph 60.

Planzer (2014), pp. 223–233.

Ibid., pp. 228–230; opinion of Advocate General Gulmann in Case C-275/92 Her Majesty’s Customs and Excise v. Gerhart Schindler and Jörg Schindler, cited above.

Case E-3/06 Ladbrokes Ltd. v. Norway, cited above, paragraph 42.

Case E-1/06 ESA v. Norway, cited above, paragraph 50.

The Court’s formula and its approach more generally were reconfirmed in Case E-24/13 Casino Admiral AG v. Wolfgang Egger, cited above, paragraph 49.

Case E-3/06 Ladbrokes Ltd. v. Norway, cited above, paragraphs 55–58.

Joined Cases C-447/08 and C-448/08 Criminal Proceedings against Otto Sjöberg and Anders Gerdin [2010] ECR I-6921, paragraph 43. See also Case C-67/98 Questore di Verona v. Diego Zenatti [1999] ECR I-7289, paragraph 30.

Already in Case C-275/92 Her Majesty’s Customs and Excise v. Gerhart Schindler and Jörg Schindler, cited above, paragraph 60 i.f.

Case E-3/06 Ladbrokes Ltd. v. Norway, cited above, paragraph 48.

Not only national measures may fall under the strict scrutiny of the EFTA Court. This may also happen to counsel appearing before the bench as Advocate General Sharpston recalls from her own experience as counsel: Sharpston (2007), pp. 243–252.

Case C-67/98 Questore di Verona v. Diego Zenatti, cited above, paragraph 36.

Fredriksen (2009), pp. 507–576.

If the holistic reflection on judicial policy-making by a leading Norwegian scholar is to be taken as point of reference, the EFTA Court did not seem to engage in illegitimate judicial activism: Graver (2007), pp. 99–131.

Joined Cases C-316/07, C-358/07, C-359/07, C-360/07, C-409/07 and C-410/07 Markus Stoss et al. v. Land Baden-Württemberg, cited above, paragraph 83.

Case C-212/08 Zeturf Ltd v. Premier ministre [2011] ECR I-5633, paragraphs 46–47.

Case C-46/08 Carmen Media Group Ltd v. Land Schleswig-Holstein and Innenminister des Landes Schleswig-Holstein [2010] ECR I-8149, paragraphs 68 and 71.

Case E-3/06 Ladbrokes Ltd. v. Norway, cited above, paragraph 61.

Case C-212/08 Zeturf Ltd v. Premier ministre, cited above, paragraphs 59–61.

Case C-67/98 Questore di Verona v. Diego Zenatti, cited above, paragraph 30; Joined Cases C-447/08 and C-448/08 Criminal Proceedings against Otto Sjöberg and Anders Gerdin, cited above, paragraph 43.

Bogart (2011), p. 355 i.f.

Case E-24/13 Casino Admiral AG v. Wolfgang Egger, cited above; Case C-203/08 Sporting Exchange Ltd. Trading as ‘Betfair’ v. Minister van Justitie, cited above; Joined Cases C-72/10 and C-77/10 Marcello Costa & Ugo Cifone, cited above; Case C-231/03 Coname, cited above.

Most recently, the ECJ for instance reiterated its assumption that competition between several private operators was liable to have detrimental effects, ultimately leading to an increased risk of gambling addiction: Case C-390/12 Robert Pfleger, Autoart as, Mladen Vucicevic, Maroxx Software GmbH, Hans-Jörg Zehetner, cited above, paragraph 46. Empirical evidence does not seem to support such reductive assumption: Planzer et al. (2014), pp. 217–229.

For instance, regarding the necessity of an exclusive right system see Case C-212/08 Zeturf Ltd v. Premier ministre, cited above, paragraph 46; Joined Cases C-316/07, C-358/07, C-359/07, C-360/07, C-409/07 and C-410/07 Markus Stoss et al. v. Land Baden-Württemberg, cited above, paragraph 83. Similarly, for the distinction between informative and evocative marketing see Case C-347/09 Criminal Proceedings against Jochen Dickinger and Franz Ömer, cited above, paragraphs 59–65 and 69. For the notion of ‘implicit reference’ see Johansson (2012), p. 214.

Baudenbacher (2005), p. 390.