A LEGISLATIVE LOOK AT WHAT’S HAPPENING IN EUROPE


dynamic with key dossiers pertaining to e- commerce, smart economy, trust and security in digital services, as well as taxation. Taking turns every half year, each country will set the agenda of the meetings of the EU’s national ministers and their experts deciding on existing or new policy.


Commission Online Gambling Recommendation Re-visited


One of the larger EU gambling-related initiatives since the publication of the Action Plan on a “comprehensive European framework for online gambling” on 23 October 2012 was the resulting Commission “Recommendation on principles for the protection of consumers and players of online gambling services and for the prevention of minors from gambling online” published in July 2014. Although received with scepticism by many Member States due to concerns about a potential erosion of the ability to determine one’s own national regulation (the aforementioned subsidiarity principle), it was Belgium that looked to take the Commission to the EU courts in October 2014 seeking annulment, with support provided soon after from Greece and Portugal. A Recommendation is not legally binding, which was confirmed by the EU’s General Court in October 2015 prompting Belgium’s subsequent appeal of the decision. So, why the concern? It’s a long story of questioning the Commission’s intention with this instrument; a question that asks whether the Commission intends to help erode barriers on gambling regulation even though the subsidiarity principle is confirmed by EU Courts. The instrument does carry with it political weight, not least due to the guiding principles that can be referred to in any subsequent policy and legislative initiatives pertaining to future EU and national approaches to gambling. It is ultimately a matter of interpretation. It will be interesting to see what the Court decides following the hearing of 26th June 2017.


Hungary: A preliminary request lodged on 3rd The integrity of Sport This has received a lot of attention


especially from sports organisers and sports betting operators looking to sustain trust in their activities. A plethora of initiatives have been brought forward from European Parliament reports raising concerns about money laundering links to match-fixing to EU funding provided for public-private awareness-raising tools. Most recently, EU Ministers responsible for sport adopted the work programme for 2018-2020 in April 2017. Key topics remain the integrity of sport and the economic dimension of sport.


Scrutiny of national regulation The EU institutions, primarily the


European Commission and the European Court of Justice (ECJ), have an ability to alter national regulation. This can be done through, for example, pressure from the European Commission with potential infringement proceedings lingering as a last resort for non-compliance, or preliminary rulings which request the ECJ to provide a view on a national court case. You might recall the European Commission’s concerns raised five years ago about the 2011 German Inter-State Gambling Treaty prompting regulatory complications beyond many stakeholders’ grasp of what to expect, not least the legal uncertainty resulting for the business. Preliminary rulings are not a rarity. In fact, it


often seems that the Court of Justice seems fatigued by the national courts requesting interpretation of questions mostly pertaining to the compatibility of national gambling law with EU law. Nonetheless, they are a favourite tool by claimants in a national court because the ECJ’s decisions need to be taken into account in the national court’s ruling. Austria: In February 2017, a request for a


preliminary ruling was lodged on the compatibility of the federal gambling monopoly with EU law (Case: Gmalieva and other). A date for an oral hearing is still to be confirmed.


January 2017 (Case: Sports Odds Limited) concerns an appeal regarding a penalty for providing services without the relevant license. We are waiting for a date for an oral hearing to be confirmed. Italy: The country where I never fail to see a


preliminary ruling in the pipeline is currently waiting for a decision by the ECJ on the compatibility of Italian betting and gaming legislation in light of requirements for new and existing concession holders. (Case: Global Starnet Ltd).


Infringement cases against Member States


(such as Sweden, Poland and Romania) have been put on a relative freeze since 2014. There are a variety of theories as to why, ranging from political motivations to a more constructive dialogue between the Commission and Member States being supported (instead of pushing forward with taking the country to court).


The Brexit of things


I have yet to come across a political discussion in Brussels where Brexit is not included. In mid-July the second of the planned monthly rounds of negotiations were held. Discussions ranged from the Good Friday agreement (Northern Ireland – Republic of Ireland), citizens’ rights, to the financial divorce settlement. Everything seems to be truly at its infancy stage, also when it comes to having any peace of mind when it comes to the economics of it all. But, the divergences of the approaches on the financial settlement and citizens’ rights prove that the negotiations will be tough. EU negotiator Barnier will not move forward with any other themes until these and the issue of Ireland is settled. Any implications for gambling? Still difficult


to tell… But keep in mind that if your company is dependent upon a flexible cross border skilled workforce which includes UK citizens in the EU, or vice versa, you should keep an eye on the current mess going on in those citizens’ rights negotiations.


Greetings from Brussels.


AUGUST 2017 11


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