Only non-discriminatory, suitable and proportional prevention of cross-border gambling is in accordance with the Treaty
The European Union regulations of free movement of goods and services between companies in member states have been made a little clearer with this week's publication of a new opinion from the European Court of Justice Advocate General's office.
Advocate General Cruz Villalón statement on the joined Costa and Cifone cases re the access of British gambling operator Stanleybet to Italian licenses understands that licensing systems and procedures in EU nations must respect the requirements of the Treaty.
Stanleybet had assumed that the process of getting the Italian licenses protects operators with local licenses whilst unlawfully excluding certain operators. That is why Advocate Villalion required the legislation to be non-discriminatory, suitable and proportional.
Villalion's opinion at para 82 is that “National legislation which prevents any type of cross border gambling activity, irrespective of how this activity is exercised, ... , is contrary to articles 49 and 56 of the TFEU”
He also emphasised at para 58: "National legislation that tends generally to protect holders of licences issued at an earlier period on the basis of a procedure that unlawfully excluded some operators can be regarded as an unjustified restriction of the freedom to provide services. Maintaining the business position of such historical concession holders is contrary to the Treaty provisions."
And finaly at para 69 it was specified: “Articles 49 and 56 of the TFEU oppose national legislation which guarantees the continuation of acquired commercial positions on the basis of a procedure which illegally excluded a number of operators.”
Maarten Haijer, director of Regulatory Affairs at the European Gaming and Betting Association trade representative body, commented: “We welcome the opinion of the Advocate General which confirms that Member States´ gambling legislation needs to comply with the basic requirements of the Treaty. It is the cornerstone of the Internal Market that a European licensed operator should have access to licenses in other Member States and be able to offer cross border services.”
“With several preliminary questions pending in Italy alone, it is clear that we can´t continue to expect the European Court of Justice to shape the European market. The European legislator needs to step in and introduce regulation that addresses and harmonises licensing standards within the EU,” conluded Haijer.
A date for the ruling of the European Court of Justice has not yet been set.
