Reference for a preliminary ruling from the Bezirksgericht Linz (Austria) lodged on 31 August 2009 -
Criminal proceedings against Jochen Dickinger, Franz Ömer
Case C-347/09
Questions referred:
1. (a) Are Articles 43 EC and 49 EC to be interpreted as, in principle, precluding legislation of a Member State, such as Paragraph 3 in conjunction with Paragraph 14 et seq. and Paragraph 21 of the Austrian Law on Gaming (Glücksspielgesetz), under which
- a licence for lotteries (e.g. lotteries, electronic lotteries, etc.) may be granted to no more than one applicant for a period of up to 15 years, such applicant being required, inter alia, to be a capital company established in Austria, prohibited from establishing branches outside Austria, having a paid-up nominal or share capital of at least EUR 109 000 000 and which may, in the circumstances, be expected to achieve the best yield in terms of federal taxation;
- a licence for casinos may be granted to no more than 12 applicants for a period of up to 15 years, such applicants being required, inter alia, to be public limited companies established in Austria, prohibited from establishing branches outside Austria, having a paid-up share capital of EUR 22 000 000 and which may, in the circumstances, be expected to achieve the best yield in terms of taxation for the regional authorities?
These questions arise specifically against the following background: Casinos Austria AG holds all 12 casino licences, which were granted on 18 December 1991 for the maximum period of 15 years and which have since been extended without a public tendering procedure or notice.
(b) If so, can such legislation also be justified for reasons relating to the public interest in a restriction of betting activities if the licensees in a quasi-monopoly are themselves pursuing a policy of expansion of games of chance, and employing intensive advertising in order to do so?
(c) If so, must the referring court - in its examination of the proportionality of such legislation, which aims to prevent criminal offences by monitoring operators active in this sector and thereby steering gaming activities towards a regime in which they will be subject to checks - take account of the fact that the legislation also covers cross-border service providers who, in any event, are subject in the Member State of establishment to the strict conditions and checks associated with their licence?
2. Are the fundamental freedoms of the EC Treaty, in particular the freedom to provide services under Article 49 EC, to be interpreted as meaning that, irrespective of the continuing responsibility, in principle, of the Member States for the regulation of criminal law, rules of a Member State's criminal law are nevertheless to be assessed by reference to Community law if they are liable to prohibit or impede the exercise of one of the fundamental freedoms?
3. (a) Is Article 49 EC, in conjunction with Article 10 EC, to be interpreted as meaning that the checks carried out in a service provider's State of establishment, and the safeguards provided there, must be taken into account in the State in which those services are provided, on the basis of the principle of mutual trust?
(b) If so, is Article 49 EC to be interpreted further as meaning that, where the freedom to provide services is restricted for reasons in the public interest, consideration must be given to whether sufficient account is not already taken of this public interest in the legal provisions, checks and investigations to which a service provider is subject in the State in which he resides?
(c) If so, must consideration be given - when examining the proportionality of a Member State's rules imposing penalties for the cross-border provision of gaming services without a licence granted in that Member State - to the fact that the regulatory interests upon which the State in which the services are provided relies in order to justify the restriction of the fundamental freedom are already sufficiently taken into account in the State of establishment in strict authorisation and supervision procedures?
(d) If so, must the referring court take account - in the context of its examination of the proportionality of such a restriction - of the fact that, in the State in which the service provider resides, the degree of control exercised by virtue of the provisions in question actually exceeds that of the State in which the services are provided?
(e) Moreover, does the principle of proportionality in the case of a prohibition - on pain of criminal penalties - of games of chance that is imposed for regulatory reasons, such as the protection of players and the fight against crime, require the referring court to make a distinction between providers who offer games of chance without any authorisation whatsoever, and those who are established and licensed in other Member States of the European Union and who conduct their activities in the exercise of their freedom to provide services?
(f) In the examination of the proportionality of a Member State's rules prohibiting the cross-border provision of gaming services without a licence granted or authorisation given in that Member State, on pain of criminal penalties, must account be taken, lastly, of the fact that, as a result of objective, indirectly discriminatory barriers to entry, it has not been possible for a provider of games of chance who is duly licensed in another Member State to obtain a licence in the first Member State, and the licensing and supervisory procedure in the State of establishment offers a level of protection that is at least comparable to that of the first Member State?
4. (a) Is Article 49 EC to be interpreted in such a way that the temporary nature of the service provision precludes the service provider from equipping himself with a certain infrastructure (such as a server) in the host Member State without being deemed to be established in that Member State?
(b) Is Article 49 EC to be interpreted further as meaning that a provision directed at support services within a Member State which prohibits them from facilitating the provision of services by a provider established in another Member State also amounts to a restriction of that service provider's freedom to provide services if the support services are established in the same Member State as some of the recipients of the service?
09 November 2009
25 October 2009
EGR: Online gambling ban in Germany could be overturned
GERMANY'S ONLINE GAMBLING ban is under threat after one of the 16 German states that ratified the treaty underpinning the ban demanded its cancellation at the weekend.
The agreement between the ruling coalition Christian-Democratic Party (CDU) and the Liberal Party (FDP) in Schleswig-Holstein, the northernmost of Germany’s 16 Lander, was published on Saturday and called for an end to the German Interstate Treaty on Gambling and its replacement with new regulation.
The leader of the FDP and the coalition in Schleswig-Holstein, Jürgen Koppelin, said that if the other German states failed to agree on a new uniform regulation to replace the Treaty, which came into force on 1 January last year, the coalition would seek to introduce an intrastate licensing system.
German gaming lawyer Martin Arendts of Arendts Anwalte said that “the argument that only a monopoly can protect customers, prevent problem gambling and guard against fraud would not hold any more,” which would undermine the monopoly position of the other German states.
Although the coalition is only reported to have commented on the potential impacts of such a move on the land-based gaming industry in the state, such as privatising state-owned casinos, Arendts told EGRMagazine.com that any new licensing system would necessarily have to apply to online gaming and betting, all forms of which except horse race betting are currently banned.
The European Gaming and Betting Association has consistently argued that the protectionist monopoly position of Germany’s Interstate Treaty on Gambling contravenes European Union law under Article 49 of the Treaty of Rome by restricting the rights of its members, such as Bwin and Unibet, to provide online gaming services.
Arendts also highlighted that Schleswig-Holstein only ratified the Interstate Treaty on Gambling in December 2007 for “fiscal reasons,” having previously favoured a separate Interstate Treaty on Sport Betting that would have provided licenses for private bookmakers.
A failure by all the German states to ratify a new regulation by 1 January 2012, when the existing treaty expires, would also render the current state gambling monopoly unenforceable.
Stephen Carter
eGaming Review
The agreement between the ruling coalition Christian-Democratic Party (CDU) and the Liberal Party (FDP) in Schleswig-Holstein, the northernmost of Germany’s 16 Lander, was published on Saturday and called for an end to the German Interstate Treaty on Gambling and its replacement with new regulation.
The leader of the FDP and the coalition in Schleswig-Holstein, Jürgen Koppelin, said that if the other German states failed to agree on a new uniform regulation to replace the Treaty, which came into force on 1 January last year, the coalition would seek to introduce an intrastate licensing system.
German gaming lawyer Martin Arendts of Arendts Anwalte said that “the argument that only a monopoly can protect customers, prevent problem gambling and guard against fraud would not hold any more,” which would undermine the monopoly position of the other German states.
Although the coalition is only reported to have commented on the potential impacts of such a move on the land-based gaming industry in the state, such as privatising state-owned casinos, Arendts told EGRMagazine.com that any new licensing system would necessarily have to apply to online gaming and betting, all forms of which except horse race betting are currently banned.
The European Gaming and Betting Association has consistently argued that the protectionist monopoly position of Germany’s Interstate Treaty on Gambling contravenes European Union law under Article 49 of the Treaty of Rome by restricting the rights of its members, such as Bwin and Unibet, to provide online gaming services.
Arendts also highlighted that Schleswig-Holstein only ratified the Interstate Treaty on Gambling in December 2007 for “fiscal reasons,” having previously favoured a separate Interstate Treaty on Sport Betting that would have provided licenses for private bookmakers.
A failure by all the German states to ratify a new regulation by 1 January 2012, when the existing treaty expires, would also render the current state gambling monopoly unenforceable.
Stephen Carter
eGaming Review
17 October 2009
Coalition agreement in Schleswig-Holstein demands cancellation of the German Interstate Treaty on Gambling
by Martin Arendts, attorney-at-law
Kiel/Germany – According to the coalition agreement between the Christian-Democratic Party (CDU) and the Liberal Party (FDP), published on 17 October 2009, Schleswig-Holstein, one of the 16 German states (Länder), will cancel the Interstate Treaty on Gambling (Glücksspielstaatsvertrag) and thereby end the state monopoly on gambling.
According to Jürgen Koppelin, leader of the Liberal Party Schleswig-Holstein, other German states might follow the example of Schleswig-Holstein. If the Germans states can not agree on a new uniform regulation, CDU and FDF announced to consider a licensing system. According to the coalition agreement, the now state-owned casinos in Schleswig-Holstein will also be privatised.
Originally, Schleswig-Holstein did not agree to the Interstate Treaty, but favoured an alternative model, a separate Interstate Treaty on Sport Betting, providing licenses to private bookmakers. Due to “fiscal reasons” the state finally ratified the Interstate treaty on Gambling in 2007.
Kiel/Germany – According to the coalition agreement between the Christian-Democratic Party (CDU) and the Liberal Party (FDP), published on 17 October 2009, Schleswig-Holstein, one of the 16 German states (Länder), will cancel the Interstate Treaty on Gambling (Glücksspielstaatsvertrag) and thereby end the state monopoly on gambling.
According to Jürgen Koppelin, leader of the Liberal Party Schleswig-Holstein, other German states might follow the example of Schleswig-Holstein. If the Germans states can not agree on a new uniform regulation, CDU and FDF announced to consider a licensing system. According to the coalition agreement, the now state-owned casinos in Schleswig-Holstein will also be privatised.
Originally, Schleswig-Holstein did not agree to the Interstate Treaty, but favoured an alternative model, a separate Interstate Treaty on Sport Betting, providing licenses to private bookmakers. Due to “fiscal reasons” the state finally ratified the Interstate treaty on Gambling in 2007.
28 September 2009
Administrative Court of Mainz assesses constitutional deficits of sports betting monopoly
by Martin Arendts, Attorney-at-Law
The Administrative Court of Mainz, Germany, noted yet again constitutional deficits of the state’s sports betting monopoly. In the case at hand, the judges therefore granted exemption from judicial execution to the defendant (order of 4 September 2009, file number: 6 L 770/09.MZ).
Thus the defendent, represented by ARENDTS ANWÄLTE, may continue to collect and forward offers of sports bets to a bookmaker, licensed in the EU member state Austria. This may happen under the usual requirements, i.e. to point out possible addictiveness and to prohibit the participation of minors. Hence the plaintiff, the State Rhineland Palatinate, was unsuccessful in its attempt to amend an interim order in favour of the betting shop, issued in 2007.
The Court pointed out that the monopoly organiser of sports betting, Lotto Rheinland-Pfalz GmbH, does not meet the requirements as formulated in § 10 Abs. 3 GlüStV (Interstate Treaty on Gambling), or the criteria outlined by the Federal Constitutional Court in its decision from March 28th 2006. The aforementioned statute and court decision, both highlighted that it was necessary to reduce the number of receiving offices effectively, in order to comply with § 1 GlüStV. The state’s legislation, however, only specified an effective reduction of receiving offices till 2011. The Court therefore made it clear that this would not suffice. Furthermore it disapproved of the exact wording of the satute in question, as it only provided for a vague guideline.
The Administrative Court of Mainz, Germany, noted yet again constitutional deficits of the state’s sports betting monopoly. In the case at hand, the judges therefore granted exemption from judicial execution to the defendant (order of 4 September 2009, file number: 6 L 770/09.MZ).
Thus the defendent, represented by ARENDTS ANWÄLTE, may continue to collect and forward offers of sports bets to a bookmaker, licensed in the EU member state Austria. This may happen under the usual requirements, i.e. to point out possible addictiveness and to prohibit the participation of minors. Hence the plaintiff, the State Rhineland Palatinate, was unsuccessful in its attempt to amend an interim order in favour of the betting shop, issued in 2007.
The Court pointed out that the monopoly organiser of sports betting, Lotto Rheinland-Pfalz GmbH, does not meet the requirements as formulated in § 10 Abs. 3 GlüStV (Interstate Treaty on Gambling), or the criteria outlined by the Federal Constitutional Court in its decision from March 28th 2006. The aforementioned statute and court decision, both highlighted that it was necessary to reduce the number of receiving offices effectively, in order to comply with § 1 GlüStV. The state’s legislation, however, only specified an effective reduction of receiving offices till 2011. The Court therefore made it clear that this would not suffice. Furthermore it disapproved of the exact wording of the satute in question, as it only provided for a vague guideline.
16 September 2009
right2bet petition
The right2bet petition:
I hereby state my support for right2bet and their aim for all EU citizens to have the right to choose which EU licensed online betting provider they use, irrespective of which Member State they operate from.
I, the undersigned, wish to bring to your attention the following:
- I want the right to use the Internet to bet online across borders of all EU Member States.
- I want the right to use websites of EU licensed online gambling operators that give me more fun, better odds and better games.
- I do not want to have to go outside the EU to use sites which may be unlicensed and whose origins I know nothing about.
- I want you to take firm action against governments of EU Member States that will still not allow me (and other citizens of the EU) to exercise this freedom.
- I want to know that responsible gambling will be encouraged. I want to know that my children cannot access these sites.
- I want the Commission to take action against Member States that do not allow me to bet with EU-licensed operators that meet the highest standards in consumer and child protection, socially responsible gambling and crime prevention.
- I want you to take action to remove the existing barriers to EU consumers exercising their rights to purchase online services across EU Member States borders.
http://www.right2bet.net
I hereby state my support for right2bet and their aim for all EU citizens to have the right to choose which EU licensed online betting provider they use, irrespective of which Member State they operate from.
I, the undersigned, wish to bring to your attention the following:
- I want the right to use the Internet to bet online across borders of all EU Member States.
- I want the right to use websites of EU licensed online gambling operators that give me more fun, better odds and better games.
- I do not want to have to go outside the EU to use sites which may be unlicensed and whose origins I know nothing about.
- I want you to take firm action against governments of EU Member States that will still not allow me (and other citizens of the EU) to exercise this freedom.
- I want to know that responsible gambling will be encouraged. I want to know that my children cannot access these sites.
- I want the Commission to take action against Member States that do not allow me to bet with EU-licensed operators that meet the highest standards in consumer and child protection, socially responsible gambling and crime prevention.
- I want you to take action to remove the existing barriers to EU consumers exercising their rights to purchase online services across EU Member States borders.
http://www.right2bet.net
13 September 2009
Deutscher Lotto- und Totoblock: European Court of Justice strengthens German gambling regulation
• Last remaining doubts over German Interstate Gambling Treaty cleared up
• Foreign sports betting to remain illegal in Germany
• Gambling monopoly in Portugal is legitimate
Erwin Horak, President of the Bavarian State Lottery Administration and Chairman of the Legal Committee of the German Lotto- und Totoblock, said he was satisfied with the ruling by the European Court of Justice (ECJ) on gambling which was announced today. The ruling strengthens the nation states of the European Union. The judges decided that freedom to provide services may indeed be restricted in the case of gambling. The EU states may ban online gambling services because different and more severe risks of fraud apply to online gambling.
The object of the case (C-42/07) brought before the ECJ was the legal regulation of sports betting in Portugal. The specific matter at hand was the legitimacy of a law which grants the sole right to offer lottery and sports betting services in Portugal to a non-profit organisation. According to the ECJ ruling, the member states may decide for themselves how to regulate this industry. The gambling authorisation granted in one member state does not have to be recognised by the other member states. As such, foreign sports betting will remain illegal in Germany.
The European judges had already stressed repeatedly in recent years that restrictions in the gambling industry may be legitimate for overriding reasons in the public interest such as the protection of consumers. The German Federal Constitutional Court had also thoroughly examined and confirmed the legitimacy of the Interstate Gambling Treaty on 14 October 2008 and 20 March 2009.
“There are no longer any remaining doubts at all over the legitimacy of the German Interstate Gambling Treaty in terms of European law. I am very optimistic about the German cases which are still awaiting resolution,” said Erwin Horak. “Today’s decision is another signal to the federal states that they are on the right track. The ruling is also a heavy blow for the commercial gambling industry. As of today, there is no longer any hope for an unregulated gambling market which has no borders and is oriented solely towards the profits of illegal providers,” added Horak.
press release of Deutscher Lotto- und Totoblock
• Foreign sports betting to remain illegal in Germany
• Gambling monopoly in Portugal is legitimate
Erwin Horak, President of the Bavarian State Lottery Administration and Chairman of the Legal Committee of the German Lotto- und Totoblock, said he was satisfied with the ruling by the European Court of Justice (ECJ) on gambling which was announced today. The ruling strengthens the nation states of the European Union. The judges decided that freedom to provide services may indeed be restricted in the case of gambling. The EU states may ban online gambling services because different and more severe risks of fraud apply to online gambling.
The object of the case (C-42/07) brought before the ECJ was the legal regulation of sports betting in Portugal. The specific matter at hand was the legitimacy of a law which grants the sole right to offer lottery and sports betting services in Portugal to a non-profit organisation. According to the ECJ ruling, the member states may decide for themselves how to regulate this industry. The gambling authorisation granted in one member state does not have to be recognised by the other member states. As such, foreign sports betting will remain illegal in Germany.
The European judges had already stressed repeatedly in recent years that restrictions in the gambling industry may be legitimate for overriding reasons in the public interest such as the protection of consumers. The German Federal Constitutional Court had also thoroughly examined and confirmed the legitimacy of the Interstate Gambling Treaty on 14 October 2008 and 20 March 2009.
“There are no longer any remaining doubts at all over the legitimacy of the German Interstate Gambling Treaty in terms of European law. I am very optimistic about the German cases which are still awaiting resolution,” said Erwin Horak. “Today’s decision is another signal to the federal states that they are on the right track. The ruling is also a heavy blow for the commercial gambling industry. As of today, there is no longer any hope for an unregulated gambling market which has no borders and is oriented solely towards the profits of illegal providers,” added Horak.
press release of Deutscher Lotto- und Totoblock
08 September 2009
bwin / Santa Casa: ECJ delivers judgment in the bwin/Portuguese football league versus Santa Casa case
Today, the European Court of Justice (ECJ) rendered its judgment in a case involving bwin and the Portuguese football league versus the Portuguese monopolist Santa Casa da Misericórdia de Lisboa (Santa Casa). Santa Casa claimed that bwin´s sponsorship agreement with the Portuguese professional football league and accompanying advertising activities were illegal because of Santa Casa’s monopoly in providing on and offline lottery and betting services in Portugal.
According to the ECJ, the Portuguese monopoly on the Internet may comply with Community law under certain conditions, but restrictions imposed by a Member State “must be suitable for achieving the objective or objectives invoked by the Member State concerned, and they must not go beyond what is necessary in order to achieve those objectives. Lastly, in any event, those restrictions must be applied without discrimination.”
Sigrid Ligné, Secretary General of the EGBA: “Given the stringent anti-fraud regulations applicable to EU licensed operators which ensure a high level of integrity, transparency and traceability over online gaming transactions, we do not believe those conditions are met. Several jurisdictions in the EU already prove that it is possible to guarantee a high level of consumer protection and have a well regulated and competitive online gaming market at the same time.”
Today’s judgment must also be seen in the context of the increasing number of Member States that are now in the process of rethinking and redrafting their gaming legislation. As has been obvious for all other consumer markets before, none of the Member States currently drafting legislation has chosen a monopoly model to regulate this modern Internet based market.
press release of EGBA
According to the ECJ, the Portuguese monopoly on the Internet may comply with Community law under certain conditions, but restrictions imposed by a Member State “must be suitable for achieving the objective or objectives invoked by the Member State concerned, and they must not go beyond what is necessary in order to achieve those objectives. Lastly, in any event, those restrictions must be applied without discrimination.”
Sigrid Ligné, Secretary General of the EGBA: “Given the stringent anti-fraud regulations applicable to EU licensed operators which ensure a high level of integrity, transparency and traceability over online gaming transactions, we do not believe those conditions are met. Several jurisdictions in the EU already prove that it is possible to guarantee a high level of consumer protection and have a well regulated and competitive online gaming market at the same time.”
Today’s judgment must also be seen in the context of the increasing number of Member States that are now in the process of rethinking and redrafting their gaming legislation. As has been obvious for all other consumer markets before, none of the Member States currently drafting legislation has chosen a monopoly model to regulate this modern Internet based market.
press release of EGBA
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