Gambling: AG states that prevention of cross border gambling is against the Treaty

Brussels, 27 October 2011

Today Advocate General Cruz Villalón issued his opinion in the joined Costa and Cifone cases regarding the access of the British gambling operator Stanleybet to Italian licenses (Cases C-72/10 and C-77/10).

According to Stanleybet the procedure to award Italian licenses in fact protects operators that already had local licenses during a period in which the licensing procedure unlawfully excluded certain operators. AG Villalón confirms that licensing systems and procedures need to respect the requirements of the Treaty.

According to Villalón, who recalls the requirements for justifications of restrictions of the freedom to provide services such as in this case, in particular that legislation must be non-discriminatory, suitable and proportional (para 46 et seq),

• “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” (para 82)

• "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" (para 58). Maintaining the business position of such historical concession holders is contrary to the Treaty provisions.

• “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” (para 69)
A date for the ruling of the European Court of Justice has not yet been set.

Maarten Haijer, Director of Regulatory Affairs at the EGBA states “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.”

Haijer adds: “With several preliminary questions pending in Italy alone, it is clear that we can´t continue to expect the CJEU to shape the European market. The European legislator needs to step in and introduce regulation that addresses and harmonizes licensing standards within the EU.”