Volume: 16 Issue: 12
The European Commission (‘EC’) announced in a press release (‘Press Release’) on 7 December 2017 that it is to close its infringement proceedings and treatment of relevant complaints against EU Member States whose regulatory regimes for online gambling it is alleged may not be in compliance with EU law.
The EC’s move follows the approach presented in the Juncker Commission’s Communication ‘EU law: Better results through better application’ (‘Communication’), published on 19 January 2017, in which the EC described how it would prioritise its efforts in respect of infringement proceedings, with the EC weighing up the private and public interests involved in each area. According to the EC’s Press Release, it has decided that “it is not a priority for the Commission to use its infringement powers to promote an EU Single Market” in the online gambling sector, pointing out inter alia that, as recognised by the Court of Justice of the European Union (‘CJEU’), Member States can restrict gambling services where necessary to achieve certain objectives for instance to combat gambling addiction, and Member States are engaged in modernising their online gambling frameworks.
“The decision taken by Juncker’s Commission does not come as a surprise,” comment Dr Thomas Talos and Mag Nicholas Aquilina, Partner and Associate respectively at Brandl & Talos. “It is a purely politically motivated decision and not based on legal grounds. In other words, the decision does not change the current legal situation that several Member States have still not come up with legislation that is in line with EU law. The criticism that the EC has voiced in the past as regards various infringements of EU law by the Member States’ national legislation remains.” “National regulatory regimes will still have to be EU law compliant; whilst national authorities can rely upon the competences which the CJEU has explicitly recognised, they will still have to respect the restrictions which EU law places on the exercise of those competences,” adds Dr Alan Littler, Gaming Lawyer at Kalff Katz & Franssen.
The EC states its belief that national courts are better placed to efficiently handle complaints relating to Member States’ national gambling legislation, and points complainants towards using national remedies in the event that they face difficulties with EU law around gambling. “Where Member States have legislation in force that violates EU law, online gambling operators will have to turn directly to the courts,” note Dr Talos and Mag Aquilina. “While it is somewhat disappointing that the courts have been chosen to develop laws, this is not a new situation for the industry. In the past, the CJEU has had to deal with more than 30 cases in the gambling sector and has developed consistent case law that has been of significant value for developing the limits for justifying restrictions to the EU market freedoms. Further cases are pending and the number of cases both before national courts and at the CJEU will certainly increase.”
In the Communication, the EC notes that it ‘will also pay particular attention to cases showing a persistent failure by a Member State to apply EU law correctly.’ Dr Littler questions “How persistent will such a failure have to be for the EC to open new infringement proceedings regarding online gambling in the future? Undoubtedly the hurdle has been raised, but it would be inconceivable for it to be insurmountable.”