CJEU: GREEK GAMBLING MONOPOLY VIOLATES EU LAW

Brussels, 24 January 2013
 
The Court of Justice of the European Union (CJEU) today delivered its ruling confirming that the Greek gambling monopoly violates EU law. Today's ruling provides additional support for the European Commission's (EC) to take direct legal action against those Member States failing to comply with EU law, including Greece.

Today the CJEU ruled in the joined Greek cases (C-186/11 and C-209/11) that Greek gambling monopolist OPAP does not comply with the strict requirements under EU law to justify its monopoly. The ruling confirms in particular that:
 

• EU law precludes “the exclusive right to run, manage, organise and operate games of chance to a single entity, where, firstly, that legislation does not genuinely meet the concern to reduce opportunities for gambling and to limit activities in that domain in a consistent and systematic manner and, secondly, where strict control by the public authorities of the expansion of the sector of games of chance, solely in so far as is necessary to combat criminality linked to those games, is not ensured” - (para.36)


• “The fact that OPAP is a listed public limited company and the finding that the Greek State’s supervision of OPAP is merely superficial, tend to suggest that the requirements […] might not be satisfied” (para.3)


• As long as national gambling legislations are found incompatible with EU law “national authorities may not refrain from considering applications […] for permission to operate in the sector of games of chance, during a transitional period” (para.37) until national legislation is compatible with Treaty provisions (para. 46).


• When the reform of an existing monopoly to making it compatible with Treaty provisions is not feasible and that a liberalisation of the market in games of chance is considered the better measure for ensuring the level of consumer protection “the introduction in that Member State of an administrative permit scheme […] must be based on objective, non-discriminatory criteria which are known in advance, in such a way as to circumscribe the exercise of the national authorities’ discretion so that it is not used arbitrarily” (para.47)

Greece has a long history of non-compliance with EU requirements and its gambling monopoly, OPAP, has remained a private company focused on generating profit: OPAP is listed on the Athens Stock Exchange, the Greek State holding only 34% of the shares. Extensive advertising and expansion are further proofs of the merely superficial control exercised by Greek authorities. Neither a Reasoned Opinion issued by the EC in 2008(1) nor continued litigation have prevented Greece from continuing to violate EU law. The latest cosmetic reforms to its gambling laws have triggered new complaints, including by EGBA, on a national and at the EU level.

Sigrid Ligné, Secretary General of EGBA, commented: ”We welcome the CJEU ruling that confirms that Member States must adhere to the requirements of EU law. Given the factual setup of OPAP’s monopoly which clearly fails to meet the CJEU test we hardly expect effective control to be implemented in the future. Therefore, Greece should follow the Court's clear advice to liberalise the market. The ruling is highly relevant and gives the EC yet more jurisprudence to put an end to non-compliant gambling policies across the EU.”

Ligné adds: “The ruling provides the EC with new impetus in pursuing Member States that violate EU law. At this stage only the EC, as the Guardian of the Treaties, can restore legal security by acting directly on the many complaints it has received, not only against Greece, but also against many other Member States. The EC can now take firm action on all pending infringement cases in order to ensure all Member States are in full compliance.”

On 23 October 2012 the EC in its Communication “Towards a comprehensive European framework on online gambling” confirmed that ”ensuring compliance of national law with the Treaty is […] a prerequisite of a successful EU policy on online gambling”(2)  and that it would take action against all Member States whose legislation does not comply with EU law. The EC decided to re-launch infringement proceedings – and, where necessary, also referrals to the CJEU – against 9 Member States(3) , including Greece, and to investigate the gambling legislation in no less than 20 Member States(4) that are subject to recent complaints. The EC has publicly committed to decide on further steps regarding infringement cases, including legal action before the CJEU, by early 2013.

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(1) See Link to EC website
(2) Communication, see link, p.5
(3) Including Germany, Greece, the Netherlands, Hungary, Greece, Sweden and Finland, see link to EC website
(4) Commission memo ‘Online Gambling in the Internal Market, FAQ”, see link, page 3