POSITIVE ONLINE GAMBLING OPINIONS FROM THE ECJ'S
26 February 2010
An influential view on monopolies and
discriminatory advertising bans in EU nations
The online gambling industry can take heart from two
recent EU legal opinions that show that the Advocates
General at the European Court of Justice maintain an
impartial approach in giving legal opinions.
week Advocate General Mazák released an opinion in which
he questioned online gambling market restrictions in
The AG was commenting on the legality in
European law of the de facto monopoly exercised by
Casinos Austria. The comments arise from the case of
Ernst Engelmann (C-64/08) currently before the European
Court of Justice.
AG Mazák opined that the
requirement that a gambling company have an
establishment in Austria “...is a clear example of
direct discrimination against companies who are seated
in another member state”.
The AG observed:
“Contrary to the view of the Austrian government, [...]
controls can be enforced on any company established in a
[EU] member state and in addition, sanctions can be
applied irrespective of the place of residence of its
He also commented that licenses in
the gaming sector must be awarded in a public and
transparent manner, saying: “Article 43 EC and 49 EC
preclude national provisions […] which exclude from the
tendering process candidates from the [European]
Community which do not have the nationality of that
The national court has to
determine whether fiscal objectives of the legislation
in fact only constitute “an incidental beneficial
consequence”, Advocate General Mazák observed. Should
this not be the case, the monopoly regime is in
violation of EU law, he asserted...regardless of the
level of advertising [by the monopoly]
the question of the degree of advertising undertaken by
state monopolies and whether this proves or disproves
the extent to which such states are concerned over the
welfare of citizens, the AG recommended that the courts
in EU nations must further examine whether the
advertising in question merely informs the potential
gambler of the availability of gambling products, or
whether the promotional activities actually and actively
encourage gamblers to participate in games of chance.
The European Gaming and Betting Association, a trade
association that includes most of Europe's major online
gambling companies among its members, welcomed the AG's
thoughts, saying that his opinion, if subsequently
confirmed by a European Court of Justice ruling, would
signal the end of Casinos Austria’s de facto monopoly on
poker and casino games, and lead to important and
necessary reforms in that country.
clear profit-driven objectives when it comes to gaming
and betting, with no consistent or systematic consumer
protection policy," the Association said in a statement.
"The Austrian market has been continuously
expanding with massive monopolists’ advertising
expenditure. 77 percent of the shares of Casinos Austria
are held by private shareholders, including banks and
Sigrid Ligné, Secretary
General of the EGBA said: “In this context, there is no
acceptable justification to prevent reputable European
competitors from offering online poker and casino games
to Austrian players”.
In cases C-447/08 and C-
448/08, in which advertising was also a factor, Advocate
General Bot confirmed in joint Swedish newspapers cases
that EU Member States must not discriminate against EU
Two Swedish newspapers, "Expressen"
and "Aftonbladet" brought their cases to the ECJ after
the editors were exposed to criminal sanctions by
Swedish government officials for accepting gambling
advertisements from non-Swedish online gaming and
betting operators duly licensed in other Member States.
In his opinion, Advocate General Bot concluded that:
“While a member state is entitled to restrict
activities associated with gambling within its
territory, the measures which it adopts for that purpose
must not be discriminatory, even if they are based on
the defence of public order”.
Community law precludes national legislation under which
[…] anyone who promotes participation in internet gaming
organised by a company established in another member
state is liable to criminal penalties, whereas anyone
who promotes participation in such gaming organised
within the national territory without an authorisation
does not incur such penalties.”
by AG Bot that Sweden must not apply discriminatory
sanctions towards licensed EU operators was also
welcomed by EGBA.
Secretary General Ligné
commented: “It is remarkable that leading national
newspapers, which are financed through and very much
dependent on the sale of advertising, are unfairly
deprived of substantial sources of revenue.
marketing prohibition that applies to legal EU operators
in Swedish media does not have any impact on the overall
level of consumption of games of chance in Sweden.
Svenska Spel and ATG conduct heavy advertising campaigns
throughout the territory and Swedish consumers also
receive advertising from other Member States on