EU BYTES
account that EU Member States regulate their markets according to their own set of rules (based on the famous “subsidiarity principle”), including licensing procedures and enforcement measures, it will be of interest to see what impact the ongoing evaluation will have on the Commission’s way of thinking when it comes to tackling illegal cross- border services. In essence, the evaluation by the Commission tests the waters of Member States’ efficiency in addressing the issue. From an industry perspective, if binding measures are subsequently introduced at EU level, this might create obligations when it comes to tackling illegal content such as advertisement restrictions or reporting mechanisms, potentially directly affecting gambling service providers. One doesn’t have to be reminded about the frequent link made between gambling, money laundering and terrorist financing. The Recommendation already sets out an obligation for hosting services providers to submit information upon request pertaining to illegal content which “may include in particular, information on the amount of content which has been removed or to which access has been disabled, either pursuant to referrals or notices or pursuant to the taking of proactive measures and the use of automated means.” Interesting as well that Vice-President Ansip
states: “What is illegal offline is also illegal online.” A hint on how we can expect that parallels between the online and offline sector will be highlighted when our industry will discuss illegal gambling? Take note that a public consultation is expected to be launched shortly giving opportunity to anyone to provide their thoughts to the Commission, and potentially have an impact on the decision-making process.
ECJ decision on Hungary
Following a request for a preliminary ruling lodged in January last year by a Hungarian court on the compatibility of Hungarian legislation with EU law, the European Court of Justice (ECJ) recently provided the relevant ruling. Quick re-cap: A preliminary ruling is a request for the ECJ to provide a view on a national court case, which need to be taken into account in the national court’s ruling.
Basic facts of the case: The Hungarian Central
Directorate of the National Tax and Customs Administration imposed a fine on Sporting Odds as it has provided online gambling services without having the national concession or license to do so. In the ensuing legal dispute, 16 questions were put forward to the ECJ. Here the key highlights of interest. According to Hungarian law: “The right to organise online casino games is exclusively reserved to persons holding a concession relating to the operation of a casino situated on Hungarian territory, which may organise online casino games through the concessionary company created for the purposes of online casino games.” On the other hand, the organisation of “lotteries and betting – except betting on horses, online games of chance and bet brokerage – shall be reserved exclusively to the State operator of games of chance.” Herein it was asked whether it was legal to have one set of games under a state monopoly, whereas the others under licenses and concessions. The Court ruled yes, as long as the restrictions were in a consistent and in a systematic manner as set out in previous rulings. The other key question pertained to whether the
“provision according to which only companies having a concession for a casino in Hungary can organise online games of chance constitutes an unjustified restriction.” The Court found that that the restriction was unjustified, as it goes “beyond what may be considered necessary as proportional, since less restrictive measures exist which enable the objectives relied on by the Hungarian Government to be attained.” This begs the question of when (or if) there will be a new law to put forward the necessary change, on which I will keep you informed. Before concluding though, I just want to point
your attention to something that caught my eye in the ruling: “[I]t is common ground that, because of the lack of direct contact between consumer and operator, games of chance accessible via the internet involve different and more substantial risks of fraud by operators against consumers compared with the traditional markets for such games.” That should become an interesting reference in the eternal debate of whether online or offline services are “safer”.
Greetings from Brussels APRIL 2018 29
areporter/Adobe Stock
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