A LEGISLATIVE LOOK AT WHAT’S HAPPENING IN EUROPE
across borders, which is often necessary for operators to function. In the case of casinos, it is important to not forget that these also provide HORECA services. And, when looking at customers, casinos often depend on cross- border tourism, no matter how ad hoc the visits might be. Also from a B2B perspective, equipment sales in a customs free geography is a benefit, no matter whether based in the EU, or exporting to the EU. The gambling market is also affected by
agreements between regulators on the sharing of data or methods for counter-acting illegal operations. The EU added value in this? It is a platform for cooperation and joint commitments, even if the subject matter does not necessarily directly pertain to gambling. For example, Anti-Money Laundering rules and initiatives for the integrity of sport have been important for many operators to demonstrate their dedication to a healthy and sustainable gambling industry. And, a healthy gambling industry needs to remember the cross-border dimension of it, also when looking at gambling- related crime or unfair competition. This month’s EU bytes (no pun intended; this time at least) includes European Commission scrutiny of Member State regulation, as well as an update on the Brexit negotiations.
Infringement Cases Against Member States
As you might remember, there are several infringement cases open against Member States regarding online gambling restrictions and their conformity with EU law. As stated by the European Commission: “Member States may restrict or limit the cross-border supply of all or certain types of gambling services on the basis of public interest objectives such as consumer protection or the prevention of fraud and other criminal activities.” Countries under scrutiny include Sweden, Poland, Belgium, Lithuania and Cyprus. My sources in Brussels are suggesting that the Commission is looking to close some of the proceedings. No date on a potential decision is available yet. In parallel, there has been a complaint to the
European Ombudsman by online operators earlier this year regarding the European
Commission not moving forward on the proceedings since 2013, or in the case of Sweden, 2014. As is typical for an Ombudsman, she (Emily O’Reilly) is responsible for investigating complaints about poor administration by EU bodies. The procedure itself involves several steps, including informing the target institution, finding amicable solutions, and then proceeding to recommendations. If all these fail, then the Ombudsman drafts a special report for the European Parliament to take action. This implies a lengthy procedure with the main power lying in political pressure. Neither a date for a decision, nor a course of action by the Ombudsman has yet been confirmed.
Notification of National Legislation to the European Commission
Member States are obliged to notify any national technical draft regulation to the European Commission prior to its adoption. Failing to do so implies grounds for an infringement case against the Member State. The purpose of the notification is to allow the Commission and other Member States to scrutinise the law with a view of seeing if it impedes on EU law. The first step usually takes 3 months, upon which a detailed opinion can be issued if there are concerns of non- compatibility, extending the “standstill period”. Here some EU Member State notifications currently under scrutiny:
Belgium: The Belgian government has notified a couple of pieces of legislation in mid-October. One pertains to online betting and casino games with specific regard to advertisement, especially through information society tools. Another introduces a plethora of amendments ranging from the protection of minors to banning certain types of games. The end of the standstill period is 18 January 2018.
Denmark: At the end of September, the Commission received the notification titled: “Order Amending the Order on online casinos”. It reflects the liberalisation of the gambling market, specifically, online bingo
(including those provided via TV), and reflects legislation already notified to the Commission in 2011. Included are provisions on winning, turnover and betting limits. The end of the standstill period reflects the date of when the online bingo market is to be liberalised: 1 January 2018.
Bricks of Brexit
At this point in time, it is even more difficult to say whether the “Bricks of Brexit” should imply the foundations of a post-Brexit trade relationship or of a wall signifying a break in trade relations due to a no-deal scenario. The latter implies that World Trade Organisation rules are to apply, an option increasingly flirted with by UK politicians, both as an option and as a domestic political tool. Maybe, also as a negotiation tool vis-à-vis the EU-27, albeit not a very effective one at this point in time. Indeed, unity is still prevalent amongst the Member States. But, small rifts have appeared (also along the lines on difference in the volume of trade with the UK), although not very visible in current top- level discussions. The last European Council (20 October), which provided the basis for the heads of the EU-27 to decide whether sufficient progress had been made on the divorce terms (Phase I), brought no surprises. In a document, formally known as the Council Conclusions, it was made clear that further progress was needed on the question of Ireland, the financial settlement and EU citizens’ rights. The next opportunity to gauge progress is in mid-December 2017, so as to move ahead on a potential transition phase and new trade deal (Phase II). Until then, another round of negotiations on 9 and 10 November has been confirmed, with 1 or 2 more expected until December. The Conclusions have also declared a start in
EU-27 internal preparatory discussions in relation to the framework for the future relationship and to possible transitional arrangements. This is where the rifts will become visible.
Greetings from Brussels
NOVEMBER 2017 29
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