Montag, 23. September 2013
Freitag, 19. Juli 2013
State aid: Commission refers Greece to Court for failure to recover incompatible aid from certain Greek casinos and from Aluminium of Greece SA
The European Commission has referred Greece to the European Court of Justice (ECJ) for failing to comply with two distinct Commission decisions that ordered Greece to recover incompatible state aid from three Greek casinos (see IP/11/635) and from Aluminium of Greece SA (see IP/11/864) In both cases, over two years after the Commission decisions, the full aid amounts have still not been paid back.
"Member States have numerous possibilities to support business in line with EU state aid rules. However, when subsidies procure distortive advantages to selected companies without furthering any common interest goal they must be recovered swiftly. This is necessary to restore a level playing field and to preserve the effectiveness of the rules themselves." said Joaquín Almunia, Vice President of the Commission in charge of competition policy.
Greek casinos
In 2009 the Commission received a complaint about the taxation of admissions to casinos in Greece. Indeed, a €12 admission tax per person was imposed on private casinos, while the public casinos of Mont Parnès and Corfu and the private casino of Thessaloniki were only paying €4.8. The Commission considered that this different fiscal treatment provides a selective advantage to certain casinos and causes the State to forgo revenues which it would otherwise have collected. In May 2011, the Commission therefore ordered Greece to recover the aid granted through this advantage since 1999 and to end the incompatible scheme.
Aluminium of Greece
In July 2011, the Commission requested Greece to recover incompatible state aid in the form of preferential electricity tariffs from Aluminium of Greece. The aid amount is calculated as the difference between PCC's revenues from the standard tariff between January 2007 and March 2008 and the revenues from the tariff that was actually applied to Aluminium of Greece SA in the same period. According to information provided by Greece, the Commission calculated the aid principal as amounting to €17.4 million.
Background
In both cases, Greece had four months from the decision to ensure its implementation. In November 2012, one and a half years after the decision, Greece abolished the measure in favour of the casinos. For the casino of Mont Parnès and for the casino of Thessaloniki, the recovery orders are (for their largest part, i.e. approximately 85%-90%) suspended by national courts, in violation of applicable EU rules. For the casino of Corfu, no payment at all has been reported.
Regarding Aluminium of Greece SA, the aid has not been recovered up to date. The recovery procedure has been suspended by a national court, in clear violation of EU law.
In both cases, the beneficiaries and (in the case of the Greek casinos only) Greece have appealed the Commission's 2011 decisions before the EU General Court. However, no interim measures have been requested (nor granted) and the appeals have no suspensive effect.
Background on recovery
Member States have to recover state aid that has been found incompatible by the Commission, within the deadline set in the Commission decision. This is very important because delays in the recovery of unlawful subsidies maintain the distortion of competition created by the aid. That is why Article 14 of Regulation n° 659/99 and the Notice on the implementation of decisions ordering the recovery of unlawful or incompatible aid (see IP/07/1609) provide that Member States should effectively recover the aid from the beneficiary without delay.
If a Member State does not implement a recovery decision, the Commission may refer the matter to the Court of Justice under Article 108(2) of the Treaty on the Functioning of the EU (TFEU) that allows the Commission to directly refer cases to the Court for violations of EU state aid rules.
If a Member State does not comply with the judgment, the Commission may ask the Court to impose penalty payments under Article 260 of the TFEU.
Press release of the European Commission, 17 July 2013
Montag, 24. Juni 2013
State aid: Horserace betting levies must be fully compliant with EU state aid rules
Brussels, 19 June 2013: The industry bodies representing the leading European online betting operators are concerned about today’s European Commission decision (C 34/10) that confirms a French levy to fund ‘the improvement of the equine species and the promotion of horse breeding’ is in line with EU state aid rules.
According to the European Commission: ‘State aid is prohibited under the Treaty on the Functioning of the European Union. Nevertheless, some strict exceptions authorise aid justified by common interest objectives, i.e. for services of general economic interest, as long as they do not distort competition in such a way as to be against the public interest.’
Against that background, the RGA and EGBA would make the following points:
According to the European Commission: ‘State aid is prohibited under the Treaty on the Functioning of the European Union. Nevertheless, some strict exceptions authorise aid justified by common interest objectives, i.e. for services of general economic interest, as long as they do not distort competition in such a way as to be against the public interest.’
Against that background, the RGA and EGBA would make the following points:
- Under the EU Treaty, state aid remains as a matter of principle forbidden and exceptions can only be granted in well defined and limited circumstances
- It is essential that when aspects of certain levies, such as the French horserace betting levy, are deemed by the European Commission to constitute justifiable state aid that the rationale for that decision is transparent and legally robust.
- The Commission’s decision in the French horserace betting levy case has only just been made and will be reviewed thoroughly by the betting industry and other stakeholders. The industry will seek assurances from the Commission where it has cause for concern and subsequent legal challenges have not been ruled out. The industry will scrutinize previous Commission decisions and standing case-law to see if horse breeding can indeed be categorised as a service of general economic interest (SGEI).
- In general terms, levies or parts of levies can only be justifiable if they are truly serving common interest objectives. That might, for instance, include veterinary research or treatment.
- However, a clear distinction must be made between that and the funds being extracted by law from one industry and transferred to another industry for commercial or quasi-commercial purposes. This would distort competition between sectors and Member States and, as such, would be a breach of State Aid rules and liable to legal challenge.
- In that respect, we take note of the fact that France proposed the introduction of this levy in 2010 because it feared that the opening to competition of the online horserace betting sector would threaten the sport’s revenues. In fact recently published figures show that not only has this not happened but that the overall stakes on online horserace betting increased by 9% between 2011 and 2012 from €1034 million to €1124 million (see link) and that the overall stakes bet online (see link) with the French incumbent operator (PMU) have increased by 11.1% between 2011 and 2012 totalling €971.1 million and so keeping an online market share of 86%. The French incumbent operator (PMU) still enjoys a monopoly in the retail market and competition in the online market remains limited due to the fact that only pool betting was allowed in 2010 which requires high financial liquidity to be competitive and hence constitutes a material market entry barrier.
press release of Remote Gambling Association (RGA) & European Gaming & Betting Association (EGBA)
Freitag, 31. Mai 2013
RGA/EGBA: Remote gambling industry challenges Greek protectionist law
Press release of 28 May 2013
The Remote Gambling Association (RGA) and the European Gaming and Betting Association (EGBA) have today filed a complaint with the European Commission regarding the regulations recently notified by the Greek State which restrict the online gambling market. The complaint details a range of non-EU compliant barriers to new market entrants and requests that the Commission, as guardian of the EU Treaties, to address this as a matter of urgency.
The complaint sets out how Greece has failed to comply with EU law in respect of:
The Remote Gambling Association (RGA) and the European Gaming and Betting Association (EGBA) have today filed a complaint with the European Commission regarding the regulations recently notified by the Greek State which restrict the online gambling market. The complaint details a range of non-EU compliant barriers to new market entrants and requests that the Commission, as guardian of the EU Treaties, to address this as a matter of urgency.
The complaint sets out how Greece has failed to comply with EU law in respect of:
- The regulations allow for the introduction of internet blocking following the introduction of a blacklist of unlicensed gambling operators. This is in direct violation of Article 56 of the Treaty on the Functioning of the EU and of the fundamental right
to give and receive information. - Extending OPAP’s offline gambling monopoly to an online monopoly of gambling and
betting rights, with exclusivity being granted to OPAP until 2020 for online sports betting and on certain aspects of online gambling (i.e. poker and casino gaming) until 2030.
- The repeal of temporary licences that were applied for by commercial gambling operators and were granted by the Hellenic Gambling Commission in the expectation that full licences could be applied for at a later date.
This failure by the Greek State to authorise online gambling is disproportionate and inconsistent, and thus in violation of EU law because:
- The Gambling Act makes it clear that online gambling is, in principle, allowed, subject to the requirements of the Gambling Act.
- However, since 5 August 2011, when the Gambling Act was adopted, no full online gambling licenses have been granted or any licensing provisions announced, started, been consulted on etc.
- The draft regulations will lead the HGC to publish a blacklist containing the names of all online gambling websites which are accessible in Greece, thus meaning that EU- licensed operators are effectively prevented from operating in Greece using their EU licences despite the fact that they are presently unable to apply for licences to provide their services in Greece.
Before the new technical regulations can come into effect there has to be time for the European Commission to look at the proposals and for complaints to be assessed, this is the “standstill period”. The Hellenic Gambling Commission has announced that it will start internet blocking of unlicensed websites the day after the closure of the “standstill period”. This does not take into account the serious concerns of operators and may result in the Greek Government being in breach of European Law if the regulations are not approved.
As part of a wide-ranging review of online gambling regimes across Europe, the European Commission is considering the compatibility of the Greek system with the Treaty. This is an opportunity for the Commission to ensure that citizens and companies get the full benefit of an open, secure and competitive online gambling market in Greece.
According to Maarten Haijer, Secretary General of EGBA, “Greece and its gambling monopoly OPAP have a long history of non compliance with EU law as recalled by the CJEU in January 2013. The latest notification to the European Commission contains a range of amendments, which are clearly anti-competitive and protectionists. It is high time for the Commission to act and take firm action against Greece.
Clive Hawkswood, Chief Executive of the RGA added: “The actions of the Greek State in first opening up and then closing down the online gambling market suggests that they are making decisions in the interests of OPAP rather than the citizens of Greece. Where a regime is contrary to the provision of the Treaties, challenges are unfortunately necessary and unavoidable. We therefore look to the Commission, as guardian of the Treaties, to enforce those provisions in relation to gambling, as the European Parliament has recently requested.”
Mittwoch, 13. März 2013
RGA: European Commission told that if Greece gives OPAP an online gambling monopoly it would breach EU law
The RGA has complained to the European Commission about the Greek Government’s plans to extend OPAP’s land based monopoly to online gambling products.
The complaint focuses on the extension of OPAP’s off line monopoly to online products, including sports betting and other gambling products such as casino and poker. The main arguments are that the Greek Gambling Act allows for the licensing of online gambling operators but the Ministerial Decisions and administrative measures undertaken prevent any operator other than OPAP from being granted a full licence. In effect the Government has granted an exclusive right to OPAP and that infringes Article 56 of the Treaty on the Functioning of the European Union (TFEU).
The complaint criticises the failure of the Greek state to implement fully the Gambling Law of 2011 which provides for the regulation of the Greek online betting and gambling market. This failure means that operators who currently have licences in other EU Member States will not be able to apply for licences in Greece until 2020 at the earliest.
Clive Hawkswood, CEO of the RGA said: “We believe that the failure to offer licences for online gambling is not because of any concerns about consumer protection but is rather to ensure that from the privatisation of OPAP the Greek government gets the highest possible price for its 33% shareholding.
Again and again the Greek Government has failed to comply with basic EU law. As recently as Friday 1 March, they made significant revisions to the draft Law and yet these have not even been notified to the European Commission. We have written to the Commission asking them to intervene and get this latest draft notified to them in accordance with the provisions of Directive 98/34/EC.
Until the Hellenic Republic complies fully with EU law, the Greek people will not get the benefits of a regulated and competitive market; the Government will miss out on long term revenues; and legitimate online gambling operators will be excluded from the market.”
The RGA had previously complained to the European Commission about the internet and payment blocking mechanisms that have been set up to protect this monopoly. These mechanisms disproportionately restrict the freedom to provide services, the free movement of capital and payments, and the fundamental freedoms to conduct a business, provide and receive information and of respect for privacy, in violation of EU law.
Hawkswood went on to say: “Members of the RGA expect all operators to be offered a level playing field across Europe. No one could suggest that is unreasonable. In Greece we have OPAP’s monopoly being protected and extended for a short term gain when in the long run the Greek people will benefit from additional choice and better value if the remote gambling market is opened up.”
Donnerstag, 24. Januar 2013
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:
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.
-----------------------------------------------------
(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
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)
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.
-----------------------------------------------------
(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
Freitag, 7. Dezember 2012
Online gaming and betting: Commission raises serious doubts about the compliance of German gambling regime with EU law
Brussels, 7 December 2012: EU online gambling
operators welcome the European Commission’s ‘detailed opinion’ against the
Draft Act amending acts pertaining to gambling law of the land of
Schleswig-Holstein (Gaming Amendment Act S-H) which is seeking to replace its
existing legislation with the controversial German State Treaty on gambling
(GST). The detailed opinion confirms that there are real concerns with
Schleswig-Holstein’s proposed switch from a transparent licensing model to one
that is restrictive and opaque, raising further doubts about the overall
compliance and consistency of the German gambling regime with EU law. Under
Directive 98/34/EC, Schleswig-Holstein must not adopt its draft legislation
before January 2013.
For
further information or comment please contact:
Sigrid Ligné: +32 2 554 08 90
sigrid.ligne@egba.eu
Schleswig-Holstein notified its proposed legislation to the
Commission on 6 September 2012 (see link).
Today’s detailed opinion (see link),
which has also received the support (see link)
of Malta (detailed opinion) and the U.K (comments), extends the standstill
period until 7 January 2013.
The proposed alignment of Schleswig-Holstein’s gambling legislation
with the GST marks an abrupt policy reversal. If confirmed, Schleswig-Holstein
would move from a sustainable and EU-compliant licensing model introduced in
2011 (see link)
to a prohibitive and restrictive model which bans online poker and casino,
imposes an uncompetitive tax regime, and restricts the online sports betting
offering to 20 licenses.
Sigrid Ligné, Secretary General of the EGBA, commented: “Schleswig-Holstein’s proposed move
from a sustainable and EU compliant licensing system to an inconsistent and
unjustifiably restrictive regime would be a significant step backwards, one
that - as confirmed today - the European Commission cannot approve”.
The European Commission already confirmed its concerns about the
non-compliance of the German gambling legislation with EU law in July 2011 (see
link). Today’s detailed opinion shows the consistent position of the
Commission towards Germany’s gambling reform.
The tendering procedure for the allocation of the 20 online
betting concessions under the GST is currently managed by the state of Hessen
and has already resulted in more than 100 applications but fails to provide the
applicants with clear, transparent and reliable information on the criteria
which will be used for allocating the 20 concessions.
Sigrid Ligné added “The
European Commission’s detailed opinion against Schleswig-Holstein sends a clear
message that Member States are no longer going to be allowed to impose gaming
regulations that fail to meet the tests set by the CJEU. The German states
cannot continue to ignore the warnings coming from Brussels and the growing
criticism evidenced by the multiplication of complaints and litigation even
before the new legislation is introduced. This creates an extreme level of
legal uncertainty which is a damaging for all parties and German consumers in
particular. At this stage, only the EC can restore legal security by acting on
the many complaints it has received, not only against Germany, but also against
Greece, Belgium and several other Member States.”
The European Commission confirmed on 23 October 2012 in its
Communication on online gambling that “ensuring
compliance of national law with the Treaty is […] a prerequisite of a
successful EU policy on online gambling”1 and that it
would take action against all Member States whose legislation does not comply
with EU law.
Sigrid Ligné: +32 2 554 08 90
sigrid.ligne@egba.eu
Montag, 26. November 2012
EGBA: Remote gambling industry calls on European Commission to safeguard notifications
Brussels and London, 26 November 2012: The Remote Gambling Association (RGA)
and the European Gaming and Betting Association (EGBA) have filed a complaint
with the European Commission regarding the non-notification of regulations that
will extend OPAP’s monopoly on online gambling and impose harsh enforcement
measures while the compliance of the new law with EU law remains in question.
The EGBA and RGA, which between them represent the majority of the largest European remote gambling operators, are concerned that the Greek Government has failed to begin licensing online gambling operators. This was a central measure of the new gambling law passed in August 2011. Instead the Greek Government has decided to grant OPAP, the incumbent monopoly gambling operator for offline games, an extension of its licence for 10 more years from 2020 to 2030 and also to extend the monopoly to include online gambling. This process has shown a disdain for EU law and has been wholly non-transparent. The failure to notify the Commission under directive 98/34/EC reflects that.
The regulations introduce wide-ranging enforcement measures including ISP and payment blocking, fines on banks and internet providers who facilitate gambling and fines on operators who have not been granted a licence.
According to Sigrid Ligné, Secretary General of EGBA, “Commissioner Barnier recently confirmed that the he would take his responsibilities seriously in ensuring the compliance of Member States’ gambling legislation with EU law. We trust the Commissioner will urgently investigate our complaint and take action accordingly against Greece as well as on several other pending complaints.”
Clive Hawkswood, CEO of the RGA added: “When the Greek Government said it was going to license and regulate the domestic online gambling market we welcomed this as a positive step. However, instead of encouraging the development of a competitive and well-regulated market, the Greek Government and Gaming Commission are blocking major European private operators from it. We therefore look to the Commission, as guardian of the Treaties, to ensure that Greece follows the correct procedures and that the laws that it is seeking to introduce are fully compliant with EU law.”
The EGBA and RGA, which between them represent the majority of the largest European remote gambling operators, are concerned that the Greek Government has failed to begin licensing online gambling operators. This was a central measure of the new gambling law passed in August 2011. Instead the Greek Government has decided to grant OPAP, the incumbent monopoly gambling operator for offline games, an extension of its licence for 10 more years from 2020 to 2030 and also to extend the monopoly to include online gambling. This process has shown a disdain for EU law and has been wholly non-transparent. The failure to notify the Commission under directive 98/34/EC reflects that.
The regulations introduce wide-ranging enforcement measures including ISP and payment blocking, fines on banks and internet providers who facilitate gambling and fines on operators who have not been granted a licence.
According to Sigrid Ligné, Secretary General of EGBA, “Commissioner Barnier recently confirmed that the he would take his responsibilities seriously in ensuring the compliance of Member States’ gambling legislation with EU law. We trust the Commissioner will urgently investigate our complaint and take action accordingly against Greece as well as on several other pending complaints.”
Clive Hawkswood, CEO of the RGA added: “When the Greek Government said it was going to license and regulate the domestic online gambling market we welcomed this as a positive step. However, instead of encouraging the development of a competitive and well-regulated market, the Greek Government and Gaming Commission are blocking major European private operators from it. We therefore look to the Commission, as guardian of the Treaties, to ensure that Greece follows the correct procedures and that the laws that it is seeking to introduce are fully compliant with EU law.”
Freitag, 23. November 2012
Licensing procedure in Germany: A never-ending story
By Attorney-at-law Martin Arendts, M.B.L.-HSG
Under the new Interstate Treaty on Gambling 2012, 20 sports betting licenses will be awarded. When this might eventually happen, remains still open. The deadline for the first step has been prolonged once. Due to several serious mistakes, the deadline for the second step has now been prolonged for the second time (and the end is not near). Applicants which survived the first step are now required to send in their concepts and other documents until 21 January 2013.
If more than 20 applicants fulfill the (confidential) minimum requirements, the 20 best will be chosen by the Hessian Ministry of the Interior and for Sports. The information memorandum (which explains the procedure) and the selection criteria (a maximum of 5000 points can be awarded) have not been published yet (as required under EU law). So, the whole procedure might be declared null and void.
Under the new Interstate Treaty on Gambling 2012, 20 sports betting licenses will be awarded. When this might eventually happen, remains still open. The deadline for the first step has been prolonged once. Due to several serious mistakes, the deadline for the second step has now been prolonged for the second time (and the end is not near). Applicants which survived the first step are now required to send in their concepts and other documents until 21 January 2013.
If more than 20 applicants fulfill the (confidential) minimum requirements, the 20 best will be chosen by the Hessian Ministry of the Interior and for Sports. The information memorandum (which explains the procedure) and the selection criteria (a maximum of 5000 points can be awarded) have not been published yet (as required under EU law). So, the whole procedure might be declared null and void.
Freitag, 26. Oktober 2012
bwin.party digital entertainment plc: Exclusive partnership agreement with Zynga
• Zynga to enter real money gaming in the UK using bwin.party technology
• New services to be Zynga-branded and will be offered online
• Zynga’s real money poker players to join bwin.party dotcom liquidity pool
• FarmVille slot being developed by bwin.party for Zynga’s real money casino
• New services to be Zynga-branded and will be offered online
• Zynga’s real money poker players to join bwin.party dotcom liquidity pool
• FarmVille slot being developed by bwin.party for Zynga’s real money casino
bwin.party has entered into an exclusive partnership agreement with Zynga Inc., the world's leading provider of social games, to develop and operate real money online and mobile poker and casino services in the UK.
bwin.party will provide a turnkey solution including the requisite operating platform, software and related support, to power Zynga’s real money poker and casino services. These services will initially be focused exclusively on UK-based customers and will operate under our Gibraltar gaming license. Once operational, Zynga’s real money UK poker customers will join the bwin.party dotcom player liquidity pool. Zynga’s real money casino will be based upon our market-leading PartyCasino and will be differentiated with a number of bespoke features including FarmVille-branded slots. Zynga and bwin.party are focused on corporate responsibility and have a shared vision for real money games.
Commenting on today’s announcement, Jim Ryan and Norbert Teufelberger, the Co-CEOs of bwin.party, said:
“Today’s announcement is a further example of our success in leveraging our assets through strategic blue-chip partners. Zynga is the world’s leader in social games with hundreds of millions of active players and a significant player base in the UK. We are delighted to have been selected as their chosen partner for this important step in their evolution and hope to expand our relationship into other products and markets.”
Barry Cottle, Executive Vice President, Corporate and Business Development, Zynga, said:
"Bringing together Zynga’s expertise in social gaming with the top international real money gaming operator is the best way to create the highest quality gaming experiences for our players in the UK. Partnering with an established leader like bwin.party is a strategic and prudent way for us to enter a key RMG market while giving local players the real money games they've been asking us for.”
Contacts:bwin.party digital entertainment plc
Contacts:bwin.party digital entertainment plc
InvestorsPeter Reynolds +44 (0) 20 7337 0100
MediaJohn Shepherd +44 (0) 20 7337 0100
Zynga
Stephanie Hess +1 415 503 0303
Stephanie Hess +1 415 503 0303
Donnerstag, 1. März 2012
CJEU: THE END OF COPYRIGHT CLAIMS FOR SPORT FIXTURE LISTS
press release of RGA and EGBA
Brussels, 1st March 2012
The Court of Justice of the European Union (CJEU) today delivered its ruling (case C-604/10) in a case referred from the Court of Appeal (England & Wales).
The fixture lists, for each season of the leagues, set the dates and venues for every match to be played. Football Dataco et al, claimed that there was in the fixture lists a sui generis right and a copyright under the Database Directive and a copyright under UK law. It consequently initiated legal action against certain media and sports betting companies in the UK, including Yahoo! and Stan James, who had refused to pay fees for those alleged rights.
Today’s decision by the CJEU is consistent with their previous ruling in (Fixtures Marketing C-46/02, C-338/02 and C-444/02; British Horseracing Board v. William Hill C-203/02) which held that football fixture lists and ‘runners and riders’ horseracing lists do not give rise to a sui generis database right.
The ruling furthermore reaffirms that fixture lists do not give rise as such to a copyright. As such, the key points are:
• The copyright protection provided for by the Database Directive concerns the ‘structure’ of the database, and not its ‘contents’. That protection does not extend to the data itself”.
• “The notion of ‘intellectual creation’, which is a necessary condition in order to be eligible for copyright protection, refers to the sole criterion of originality”.
• “significant labour and skill on the part of its author does not justify, as such, the protection of it by copyright if that labour and that skill do not express any originality”
The CJEU also makes it clear that the Database Directive aims at completely harmonising copyright protection for databases across the EU and therefore precludes national rights other than those provided for by the Directive.
Clive Hawkswood, Chief Executive of the RGA, said: “We welcome the ruling of the CJEU in relation to the claims of Football Dataco and hope that this will, finally put an end to attempts by sporting organisations to extract significant funds from media and betting organisations using the threat of intellectual property infringement. It is disappointing that it has taken so long to reach this position of clarity; nevertheless we are grateful to the CJEU for providing such an unequivocal judgement. As we have said before, this will hopefully encourage professional sports to build on the current commercial relationships with the betting industry in the best interests of all concerned.”
Sigrid Ligné, Secretary General of the EGBA added: “We welcome today’s ruling, which should put an end to copyright claims for sport fixture lists. The focus now should be on strengthening the commercial ties between the online betting industry and professional sports. The fact, though, is that sport is still missing out on commercial opportunities with the betting industry in countries like Germany, Portugal and Poland because of sponsorship and advertising restrictions. We encourage the European Commission to take actions against these countries in order to remove these regulatory barriers.”
For further information or comment please contact Sigrid Ligné: +32 2 554 08 90, EGBA Secretary General or Brian Wright, RGA Director of Business, +44 (0)20 7831 2195
Notes for Editors
1. The RGA is the largest online gambling trade association in the world, representing the world’s largest licensed and stock market-listed remote gambling operators and software provider’s .The organisation provides the remote gambling industry with a single voice on all issues of importance to regulators, legislators, and key decision-makers.
2. Its members include: 888; Ash Gaming; bet365; Betfair; Boylesport; bwin.party; Gala Coral; Gamesys; IGT; Ladbrokes; Microgaming; Paddy Power; PKR; Playtech; Rank Group; SBOBET; Skybet; Sportingbet; Sportech; Stan James; Stanleybet; Talarius; Unibet; VCBet; Virgin; William Hill; and WMS.
3. The EGBA is an association of leading European gaming and betting operators Bet-at-home.com, BetClic, bwinparty, Digibet, Expekt, Interwetten, and Unibet. EGBA is a Brussels-based non-profit association. It promotes the right of private gaming and betting operators that are regulated and licensed in one Member State to a fair market access throughout the European Union. Online gaming and betting is a fast growing market, but will remain for the next decades a limited part of the overall European gaming market in which the traditional land based offer is expected to grow from € 80.4 Billion GGR in 2010 to € 92 Billion GGR in 2015, thus keeping the lion’s share with 86% of the market. Source: H2 Gambling Capital, September 2011.
4. A full version of the CJEU ruling can be found at:
http://curia.europa.eu/juris/document/document.jsf?text=&docid=119904&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=1759892
Brussels, 1st March 2012
The Court of Justice of the European Union (CJEU) today delivered its ruling (case C-604/10) in a case referred from the Court of Appeal (England & Wales).
The fixture lists, for each season of the leagues, set the dates and venues for every match to be played. Football Dataco et al, claimed that there was in the fixture lists a sui generis right and a copyright under the Database Directive and a copyright under UK law. It consequently initiated legal action against certain media and sports betting companies in the UK, including Yahoo! and Stan James, who had refused to pay fees for those alleged rights.
Today’s decision by the CJEU is consistent with their previous ruling in (Fixtures Marketing C-46/02, C-338/02 and C-444/02; British Horseracing Board v. William Hill C-203/02) which held that football fixture lists and ‘runners and riders’ horseracing lists do not give rise to a sui generis database right.
The ruling furthermore reaffirms that fixture lists do not give rise as such to a copyright. As such, the key points are:
• The copyright protection provided for by the Database Directive concerns the ‘structure’ of the database, and not its ‘contents’. That protection does not extend to the data itself”.
• “The notion of ‘intellectual creation’, which is a necessary condition in order to be eligible for copyright protection, refers to the sole criterion of originality”.
• “significant labour and skill on the part of its author does not justify, as such, the protection of it by copyright if that labour and that skill do not express any originality”
The CJEU also makes it clear that the Database Directive aims at completely harmonising copyright protection for databases across the EU and therefore precludes national rights other than those provided for by the Directive.
Clive Hawkswood, Chief Executive of the RGA, said: “We welcome the ruling of the CJEU in relation to the claims of Football Dataco and hope that this will, finally put an end to attempts by sporting organisations to extract significant funds from media and betting organisations using the threat of intellectual property infringement. It is disappointing that it has taken so long to reach this position of clarity; nevertheless we are grateful to the CJEU for providing such an unequivocal judgement. As we have said before, this will hopefully encourage professional sports to build on the current commercial relationships with the betting industry in the best interests of all concerned.”
Sigrid Ligné, Secretary General of the EGBA added: “We welcome today’s ruling, which should put an end to copyright claims for sport fixture lists. The focus now should be on strengthening the commercial ties between the online betting industry and professional sports. The fact, though, is that sport is still missing out on commercial opportunities with the betting industry in countries like Germany, Portugal and Poland because of sponsorship and advertising restrictions. We encourage the European Commission to take actions against these countries in order to remove these regulatory barriers.”
For further information or comment please contact Sigrid Ligné: +32 2 554 08 90, EGBA Secretary General or Brian Wright, RGA Director of Business, +44 (0)20 7831 2195
Notes for Editors
1. The RGA is the largest online gambling trade association in the world, representing the world’s largest licensed and stock market-listed remote gambling operators and software provider’s .The organisation provides the remote gambling industry with a single voice on all issues of importance to regulators, legislators, and key decision-makers.
2. Its members include: 888; Ash Gaming; bet365; Betfair; Boylesport; bwin.party; Gala Coral; Gamesys; IGT; Ladbrokes; Microgaming; Paddy Power; PKR; Playtech; Rank Group; SBOBET; Skybet; Sportingbet; Sportech; Stan James; Stanleybet; Talarius; Unibet; VCBet; Virgin; William Hill; and WMS.
3. The EGBA is an association of leading European gaming and betting operators Bet-at-home.com, BetClic, bwinparty, Digibet, Expekt, Interwetten, and Unibet. EGBA is a Brussels-based non-profit association. It promotes the right of private gaming and betting operators that are regulated and licensed in one Member State to a fair market access throughout the European Union. Online gaming and betting is a fast growing market, but will remain for the next decades a limited part of the overall European gaming market in which the traditional land based offer is expected to grow from € 80.4 Billion GGR in 2010 to € 92 Billion GGR in 2015, thus keeping the lion’s share with 86% of the market. Source: H2 Gambling Capital, September 2011.
4. A full version of the CJEU ruling can be found at:
http://curia.europa.eu/juris/document/document.jsf?text=&docid=119904&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=1759892
Freitag, 17. Februar 2012
RGA challenges new online gambling taxation proposals in Greek Courts
The Remote Gambling Association (RGA), the largest trade association for remote gambling operators in the world, has submitted a legal challenge to the Greek Government's taxation regime for remote gambling. The action in the Greek Council of State was co-signed by bet365, Betfair and William Hill.
The new tax regime will require licensed gambling operators who have been active in the Greek market to pay taxes retrospectively on any revenues earned from Greece-based customers from 1 January 2010 until the new licences have been awarded. In addition licensed gambling operators will be required to pay a retrospective 10% withholding tax (WHT) on winnings for the year up to 16 December 2011. This provision is equivalent to a market entry fee that will have to be paid by all of the operators who have until now been unable to obtain a licence to operate in Greece.
The RGA's action seeks an annulment of the Ministerial Decision to introduce retrospective gross gambling revenue tax and a tax on customers' winnings. The action is founded on the grounds that the proposed taxation measures are unconstitutional as they contravene the right to conduct a business activity and are disproportionate. Furthermore, the proposals do not accord with the principle that international treaties supersede conflicting provisions of Greek law.
The proposal of what are unconstitutional and non EU-conforming tax obligations on remote operators came at the same time as the Greek Government granting OPAP, the incumbent monopoly gambling operator for offline games, an extension of its existing licence for an additional 10 years. This extension, for the period from 2020 to 2030, was granted in a wholly uncompetitive and non-transparent fashion. Furthermore, OPAP currently pays no gambling tax on its offline activities, whereas online operators will be required to pay 30% GGR, and its customers are not subjected to a 10% withholding tax (on winnings under €100).
In October and November 2011 the RGA filed two separate complaints with the European Commission regarding the recently adopted Greek online gambling law – one on its own on the grounds of State Aid, and the other one jointly with the EGBA on internal market grounds. The complaints detail a range of non-EU compliant barriers to new market entrants and request that the Commission, as guardian of the EU Treaties, addresses these discrepancies as a matter of urgency.
The RGA will continue to lobby the Greek Government, on the basis that its actions are not in line with fundamental EU law and Greek domestic laws. Crucially, implantation of the proposed taxation regime and other anti-competitive conditions within the new online gambling legislation will ensure that potential market entrants will be driven out of the Greek market. This will in turn see the potential tax take of the Greek government shrink, while at the same time Greek consumers will be encouraged to bet outside of what will be an uncompetitive and unviable market.
Clive Hawkswood, CEO of the Remote Gambling Association said:
"The RGA believes that the opening of the Greek on-line gambling market is a welcome step. However, the taxation regime proposed will create a huge and uncompetitive financial burden for potential licensees. There is no doubt that implementation of current proposals will see the newly regulated market fail to the detriment of the Greek government and Greek consumers. There is still time to amend the Ministerial Decision and for the tax rates to be reviewed and I hope the Ministry of Finance will be willing to discuss viable alternatives with us.
"At the same time, we await the European Commission's response to the two complaints filed so far, and we urge them to ensure that fundamental EU market principles are upheld in Greece."
Remote Gambling Association (RGA)
For more information, contact:
Sue Rossiter, Director of Projects and Policy (+44 (0)20 7831 2195 or srossiter@rga.eu.com.)
The new tax regime will require licensed gambling operators who have been active in the Greek market to pay taxes retrospectively on any revenues earned from Greece-based customers from 1 January 2010 until the new licences have been awarded. In addition licensed gambling operators will be required to pay a retrospective 10% withholding tax (WHT) on winnings for the year up to 16 December 2011. This provision is equivalent to a market entry fee that will have to be paid by all of the operators who have until now been unable to obtain a licence to operate in Greece.
The RGA's action seeks an annulment of the Ministerial Decision to introduce retrospective gross gambling revenue tax and a tax on customers' winnings. The action is founded on the grounds that the proposed taxation measures are unconstitutional as they contravene the right to conduct a business activity and are disproportionate. Furthermore, the proposals do not accord with the principle that international treaties supersede conflicting provisions of Greek law.
The proposal of what are unconstitutional and non EU-conforming tax obligations on remote operators came at the same time as the Greek Government granting OPAP, the incumbent monopoly gambling operator for offline games, an extension of its existing licence for an additional 10 years. This extension, for the period from 2020 to 2030, was granted in a wholly uncompetitive and non-transparent fashion. Furthermore, OPAP currently pays no gambling tax on its offline activities, whereas online operators will be required to pay 30% GGR, and its customers are not subjected to a 10% withholding tax (on winnings under €100).
In October and November 2011 the RGA filed two separate complaints with the European Commission regarding the recently adopted Greek online gambling law – one on its own on the grounds of State Aid, and the other one jointly with the EGBA on internal market grounds. The complaints detail a range of non-EU compliant barriers to new market entrants and request that the Commission, as guardian of the EU Treaties, addresses these discrepancies as a matter of urgency.
The RGA will continue to lobby the Greek Government, on the basis that its actions are not in line with fundamental EU law and Greek domestic laws. Crucially, implantation of the proposed taxation regime and other anti-competitive conditions within the new online gambling legislation will ensure that potential market entrants will be driven out of the Greek market. This will in turn see the potential tax take of the Greek government shrink, while at the same time Greek consumers will be encouraged to bet outside of what will be an uncompetitive and unviable market.
Clive Hawkswood, CEO of the Remote Gambling Association said:
"The RGA believes that the opening of the Greek on-line gambling market is a welcome step. However, the taxation regime proposed will create a huge and uncompetitive financial burden for potential licensees. There is no doubt that implementation of current proposals will see the newly regulated market fail to the detriment of the Greek government and Greek consumers. There is still time to amend the Ministerial Decision and for the tax rates to be reviewed and I hope the Ministry of Finance will be willing to discuss viable alternatives with us.
"At the same time, we await the European Commission's response to the two complaints filed so far, and we urge them to ensure that fundamental EU market principles are upheld in Greece."
Remote Gambling Association (RGA)
For more information, contact:
Sue Rossiter, Director of Projects and Policy (+44 (0)20 7831 2195 or srossiter@rga.eu.com.)
Donnerstag, 16. Februar 2012
EGBA: European Court calls into question the compliance of the new Italian regulation
Gambling: European Court calls into question the compliance of the new Italian regulation. EU law precludes national legislation designed to protect the market position of incumbents.
CJEU confirms fundamental ‘red line’ for regulated gambling markets and the obligation to ensure full transparency, legal certainty and equal treatment.
Today the European Court of Justice (CJEU) issued its preliminary ruling in the joint cases Costa and Cifone regarding the access of European operators to Italian gambling licences (cases C-72/10 and C-77/10) under the 2006 reformed Italian gambling legislation. The CJEU confirms that Member States cannot protect vested economic interests and thereby discriminate against new operators under the aegis of consumer protection or fraud prevention.
In particular, the Court ruled:
• That a national restriction is justifiable only if it does “not have as a true objective the protection of the market positions of the existing operators” – Para. 65
• “The very fact that the existing operators have been able to start up several years earlier than the operators unlawfully excluded ,[…] confers on them an unfair competitive advantage [which] [...] constitutes a new breach of Articles 43 EC and 49 EC and of the principle of equal treatment.” – Para 53.
• As regards possible justifications for unequal treatment "the objective of ensuring continuity, financial stability or a proper return on past investments for operators […] cannot be accepted as overriding reasons in the public interest" – Para 59.
• The Court rejects the justification by the objectives of reducing gaming opportunities and combating criminality, when a Member State "has long been marked by a policy of expanding activity with the aim of increasing tax revenue" – Para 62.
• The Court also points out that national measures intending to achieve such objectives must be proportional, consistent and systematic – Para 63. This is not the case if national measures, for example "rules on minimum distances were imposed exclusively on new licence holders and not on those already established" – Para 64.
• “In order to enable any potential tenderer to assess with certainty the likelihood that such penalties will be applied to it, to preclude any risk of favouritism or arbitrariness on the part of the licensing authority […] it is therefore necessary [… to set out the circumstances for the withdrawal of licenses] in a clear, precise and unequivocal manner” – Para. 78
• The Court further repeats its consistent case law that no penalties may be imposed on operators having been excluded from obtaining a license in breach of EU law – Para. 85.
In its ruling, the Court notes that the Italian legislation, in the manner in which it regulates the gambling market, is not consistent with the claimed objectives of protecting consumers from gambling addiction and limiting gambling activity in Italy. The Court points out that the aim of the Italian legislation is to protect incumbents and increase tax revenues. Such objectives cannot serve to justify violations of EU law. This ruling is in line with a series of recent rulings in which the Court focusses on the lack of consistency between the claimed objectives of Member States and the actual legislation that in fact aims to protect incumbents' interests.
Sigrid Ligné, Secretary General of the EGBA commented on today’s ruling: “This very positive ruling confirms that national legislation that opens up and regulates the gambling market may not discriminate against new operators but must guarantee fair market access.”
Ligné adds: “The Court has made particularly clear the ‘red lines’ that Member States must observe when they regulate gambling; it is high time for the European Commission to enforce the consistent case law of the CJEU and pursue complaints and infringements procedures accordingly ”
CJEU confirms fundamental ‘red line’ for regulated gambling markets and the obligation to ensure full transparency, legal certainty and equal treatment.
Today the European Court of Justice (CJEU) issued its preliminary ruling in the joint cases Costa and Cifone regarding the access of European operators to Italian gambling licences (cases C-72/10 and C-77/10) under the 2006 reformed Italian gambling legislation. The CJEU confirms that Member States cannot protect vested economic interests and thereby discriminate against new operators under the aegis of consumer protection or fraud prevention.
In particular, the Court ruled:
• That a national restriction is justifiable only if it does “not have as a true objective the protection of the market positions of the existing operators” – Para. 65
• “The very fact that the existing operators have been able to start up several years earlier than the operators unlawfully excluded ,[…] confers on them an unfair competitive advantage [which] [...] constitutes a new breach of Articles 43 EC and 49 EC and of the principle of equal treatment.” – Para 53.
• As regards possible justifications for unequal treatment "the objective of ensuring continuity, financial stability or a proper return on past investments for operators […] cannot be accepted as overriding reasons in the public interest" – Para 59.
• The Court rejects the justification by the objectives of reducing gaming opportunities and combating criminality, when a Member State "has long been marked by a policy of expanding activity with the aim of increasing tax revenue" – Para 62.
• The Court also points out that national measures intending to achieve such objectives must be proportional, consistent and systematic – Para 63. This is not the case if national measures, for example "rules on minimum distances were imposed exclusively on new licence holders and not on those already established" – Para 64.
• “In order to enable any potential tenderer to assess with certainty the likelihood that such penalties will be applied to it, to preclude any risk of favouritism or arbitrariness on the part of the licensing authority […] it is therefore necessary [… to set out the circumstances for the withdrawal of licenses] in a clear, precise and unequivocal manner” – Para. 78
• The Court further repeats its consistent case law that no penalties may be imposed on operators having been excluded from obtaining a license in breach of EU law – Para. 85.
In its ruling, the Court notes that the Italian legislation, in the manner in which it regulates the gambling market, is not consistent with the claimed objectives of protecting consumers from gambling addiction and limiting gambling activity in Italy. The Court points out that the aim of the Italian legislation is to protect incumbents and increase tax revenues. Such objectives cannot serve to justify violations of EU law. This ruling is in line with a series of recent rulings in which the Court focusses on the lack of consistency between the claimed objectives of Member States and the actual legislation that in fact aims to protect incumbents' interests.
Sigrid Ligné, Secretary General of the EGBA commented on today’s ruling: “This very positive ruling confirms that national legislation that opens up and regulates the gambling market may not discriminate against new operators but must guarantee fair market access.”
Ligné adds: “The Court has made particularly clear the ‘red lines’ that Member States must observe when they regulate gambling; it is high time for the European Commission to enforce the consistent case law of the CJEU and pursue complaints and infringements procedures accordingly ”
Donnerstag, 27. Oktober 2011
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.”
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.”
Dienstag, 19. Juli 2011
Online gaming and betting: proposed new law in Germany criticised by the European Commission
Brussels, 19 July 2011
The European Commission today issued a ‘detailed opinion’ against the draft German State Gambling Treaty. This detailed opinion confirms that the Commission believes the proposed German State Treaty is in breach of EU law. If the draft is not substantially changed after this warning, Germany risks formal infringement proceedings, referral to the European Court of Justice (CJEU) and ultimately financial penalties.
The Commission has identified a number of provisions in the German draft State Gambling Treaty which are in conflict with the EU Treaty. While the draft law appears to open the market for online sports betting operators from all EU member states, it in practice reserves the market for the incumbent German monopolies. EGBA considers that several requirements in the draft State Treaty are in breach of EU law, including:
• The total number of sports betting licences available is limited without justification to seven (7), whereas the state monopoly for sports betting is exempt from the requirement to apply for a licence;
• An exorbitant tax of 16.67 percent of the amount wagered is imposed on all operators. This will make online wagering uneconomic, excluding online operators and is clearly intended to protect the current state monopoly on offline bets from online competition;
• The licensing system ‘bundles’ offline and online sports betting together and applies a commercial viability test to would-be operators, thus putting online-only operators at an automatic disadvantage in applying for a licence;
• While privately owned land-based premises are limited to 350 per license, no such restriction applies to outlets employed by the state-owned operators
• Certain casino games may be offered online but only by specified casino game operators that are already operating land-based casino games in Germany;
• An illegal expansion of marketing is encouraged for the state monopoly, but marketing restrictions are placed on other operators;
• The license fee will favour those applicants with land-based operations that attract higher margins and appears to be unrelated to the costs incurred to deliver and then maintain the license.
Sigrid Ligné, Secretary General of EGBA said today: ‘The draft German treaty has many provisions which are in conflict with EU law. But worse: it is clear that, taken together and especially including a prohibitive tax on wagers from which the incumbent state monopoly is exempt, these provisions effectively slam the door in the face of EU operators from other member states and will in fact extend the monopoly for offline to online games. The Commission must act quickly to stop this test case for its stated aim of a common EU framework for this sector ’.
The proposed German State Gambling Treaty comes after a number of preliminary rulings by the EU Court that the current State Treaty is incompatible with EU law (see inter alia Carmen Media, C- 46/08). The current law expires at the end of 2011 and the intention was to have the new treaty to come into force in January 2012.
In Germany the regions, or Länder, are competent for lotteries and sports betting while casinos and slot machines are the competence of the federal state. There is however no agreement between the Länder on this draft treaty on sports betting. Schleswig Holstein has already notified an alternative gambling law that will foster a commercially viable sports betting market for EU-licensed operators, thereby removing the attractions of the black market for consumers. The Commission raised no objections to such law and EGBA remains fully supportive of the efforts to enact it.
According to a study by Gold Media, the gross online gaming and betting revenue in Germany was €1 billion in 2009, with a 30 percent annual growth rate (1). Online gaming is a large and vibrant segment of the digital economy in Germany. Whilst material, failing to comply with EU law is only one of the major issues with the proposed State Gambling Treaty. The draft Treaty, if enacted as proposed will simply drive consumers into the hands of black market operators that will not deliver the same levels of consumer protection, that will reduce visibility of the online gaming and betting market in Germany and will forego the opportunity to raise tax revenue.
(1) http://www.goldmedia.com/en/press/newsroom/
study-betting-and-gambling-in-germany.html
For further information or comment please contact:
Sigrid Ligné: +32 2 554 08 90
Sigrid.Ligne@egba.eu
About EGBA
The EGBA is an association of leading European gaming and betting operators Bet-at-home.com, BetClic, bwinparty, Digibet, Expekt, Interwetten, and Unibet. EGBA is a Brussels-based non-profit association. It promotes the right of private gaming and betting operators that are regulated and licensed in one Member State to a fair market access throughout the European Union. Online gaming and betting is a fast growing market, but will remain for the next decades a limited part of the overall European gaming market in which the traditional land based offer is expected to grow from € 79.6 Billion GGR in 2009 to € 83 Billion GGR in 2012, thus keeping the lion’s share with 87% of the market. Source: H2 Gambling Capital, April 2010
The Notification Procedure
Under Directive 98/34/EC, Member States must notify to the European Commission and other Member States draft regulations regarding products and Information Society services such as online gaming and betting, before adopting them. This procedure is aimed at preventing Member States from creating new barriers to the internal market freedoms by giving the opportunity to the Commission and Member States to evaluate the content of a draft law before it is adopted.
The notification of a text to the Commission opens a three month standstill period during which the draft text must not be adopted. This period allows the Commission and Member States to ascertain whether the draft text presents any unjustified barriers to the internal market. The Commission and/or Member States may then issue:
• a detailed opinion, if they consider that the draft text would, if implemented, create barriers to trade, services or establishment within the EU;
• comments, if they consider that the text raises issues of interpretation or requires further details; or
• no response, if they consider that the text is compatible with EU law.
A detailed opinion attempts to prevent Members States from adopting a text, which contains barriers to the internal market, or to urge them to remove the restrictive provisions, thereby avoiding unnecessary legislative work and future EU infringement proceedings.
Once a detailed opinion had been issued, the standstill period, during which the draft text must not be adopted, is extended by one month. If, after this time, the draft text is adopted without modification, the Commission can immediately commence an infringement procedure against the Member State’s newly adopted legislation.
To access the TRIS database and search for other draft laws see:
http://ec.europa.eu/enterprise/tris/pisa/app/search/index.cfm?lang=EN
The European Commission today issued a ‘detailed opinion’ against the draft German State Gambling Treaty. This detailed opinion confirms that the Commission believes the proposed German State Treaty is in breach of EU law. If the draft is not substantially changed after this warning, Germany risks formal infringement proceedings, referral to the European Court of Justice (CJEU) and ultimately financial penalties.
The Commission has identified a number of provisions in the German draft State Gambling Treaty which are in conflict with the EU Treaty. While the draft law appears to open the market for online sports betting operators from all EU member states, it in practice reserves the market for the incumbent German monopolies. EGBA considers that several requirements in the draft State Treaty are in breach of EU law, including:
• The total number of sports betting licences available is limited without justification to seven (7), whereas the state monopoly for sports betting is exempt from the requirement to apply for a licence;
• An exorbitant tax of 16.67 percent of the amount wagered is imposed on all operators. This will make online wagering uneconomic, excluding online operators and is clearly intended to protect the current state monopoly on offline bets from online competition;
• The licensing system ‘bundles’ offline and online sports betting together and applies a commercial viability test to would-be operators, thus putting online-only operators at an automatic disadvantage in applying for a licence;
• While privately owned land-based premises are limited to 350 per license, no such restriction applies to outlets employed by the state-owned operators
• Certain casino games may be offered online but only by specified casino game operators that are already operating land-based casino games in Germany;
• An illegal expansion of marketing is encouraged for the state monopoly, but marketing restrictions are placed on other operators;
• The license fee will favour those applicants with land-based operations that attract higher margins and appears to be unrelated to the costs incurred to deliver and then maintain the license.
Sigrid Ligné, Secretary General of EGBA said today: ‘The draft German treaty has many provisions which are in conflict with EU law. But worse: it is clear that, taken together and especially including a prohibitive tax on wagers from which the incumbent state monopoly is exempt, these provisions effectively slam the door in the face of EU operators from other member states and will in fact extend the monopoly for offline to online games. The Commission must act quickly to stop this test case for its stated aim of a common EU framework for this sector ’.
The proposed German State Gambling Treaty comes after a number of preliminary rulings by the EU Court that the current State Treaty is incompatible with EU law (see inter alia Carmen Media, C- 46/08). The current law expires at the end of 2011 and the intention was to have the new treaty to come into force in January 2012.
In Germany the regions, or Länder, are competent for lotteries and sports betting while casinos and slot machines are the competence of the federal state. There is however no agreement between the Länder on this draft treaty on sports betting. Schleswig Holstein has already notified an alternative gambling law that will foster a commercially viable sports betting market for EU-licensed operators, thereby removing the attractions of the black market for consumers. The Commission raised no objections to such law and EGBA remains fully supportive of the efforts to enact it.
According to a study by Gold Media, the gross online gaming and betting revenue in Germany was €1 billion in 2009, with a 30 percent annual growth rate (1). Online gaming is a large and vibrant segment of the digital economy in Germany. Whilst material, failing to comply with EU law is only one of the major issues with the proposed State Gambling Treaty. The draft Treaty, if enacted as proposed will simply drive consumers into the hands of black market operators that will not deliver the same levels of consumer protection, that will reduce visibility of the online gaming and betting market in Germany and will forego the opportunity to raise tax revenue.
(1) http://www.goldmedia.com/en/press/newsroom/
study-betting-and-gambling-in-germany.html
For further information or comment please contact:
Sigrid Ligné: +32 2 554 08 90
Sigrid.Ligne@egba.eu
About EGBA
The EGBA is an association of leading European gaming and betting operators Bet-at-home.com, BetClic, bwinparty, Digibet, Expekt, Interwetten, and Unibet. EGBA is a Brussels-based non-profit association. It promotes the right of private gaming and betting operators that are regulated and licensed in one Member State to a fair market access throughout the European Union. Online gaming and betting is a fast growing market, but will remain for the next decades a limited part of the overall European gaming market in which the traditional land based offer is expected to grow from € 79.6 Billion GGR in 2009 to € 83 Billion GGR in 2012, thus keeping the lion’s share with 87% of the market. Source: H2 Gambling Capital, April 2010
The Notification Procedure
Under Directive 98/34/EC, Member States must notify to the European Commission and other Member States draft regulations regarding products and Information Society services such as online gaming and betting, before adopting them. This procedure is aimed at preventing Member States from creating new barriers to the internal market freedoms by giving the opportunity to the Commission and Member States to evaluate the content of a draft law before it is adopted.
The notification of a text to the Commission opens a three month standstill period during which the draft text must not be adopted. This period allows the Commission and Member States to ascertain whether the draft text presents any unjustified barriers to the internal market. The Commission and/or Member States may then issue:
• a detailed opinion, if they consider that the draft text would, if implemented, create barriers to trade, services or establishment within the EU;
• comments, if they consider that the text raises issues of interpretation or requires further details; or
• no response, if they consider that the text is compatible with EU law.
A detailed opinion attempts to prevent Members States from adopting a text, which contains barriers to the internal market, or to urge them to remove the restrictive provisions, thereby avoiding unnecessary legislative work and future EU infringement proceedings.
Once a detailed opinion had been issued, the standstill period, during which the draft text must not be adopted, is extended by one month. If, after this time, the draft text is adopted without modification, the Commission can immediately commence an infringement procedure against the Member State’s newly adopted legislation.
To access the TRIS database and search for other draft laws see:
http://ec.europa.eu/enterprise/tris/pisa/app/search/index.cfm?lang=EN
Donnerstag, 30. Juni 2011
EGBA: CJEU questions consistency of French gambling law
Brussels, 30 June 2011
The European Court today ruled once again that a monopoly can only be justified if findings prove that gambling related problems actually exist and a particularly high level of consumer protection is granted. This ruling, which concerns the former law, also adds pressure on the current French gambling legislation that was introduced in May 2010.
The European Gaming and Betting Association (EGBA) welcomes today’s ruling by the Court of Justice of the European Union (CJEU) stating once again that an EU Member State is not permitted to close its gambling market on public policy grounds while, at the same time, allowing its own monopoly operator to employ aggressive marketing encouraging consumers to play substantially more without evidencing that such marketing can effectively solve gambling related problems (Zeturf case C-212/08, para 70).
Since the French legislator has not considered it necessary to make a distinction between land-based and online distribution channels at the time of the referral, the national courts must assess the consistent and systematic approach of the French legislation as regards the entire horserace betting sector both online and offline.
In particular the CJEU insists that the French jurisdiction verifies whether:
• “the national authorities genuinely sought, at the material time, to ensure such a particularly high level of protection and whether, having regard to the level of protection sought, the establishment of a monopoly could actually be considered necessary” (para.47),
• “the State controls to which the activities of the body benefiting from the exclusive rights are, in principle, subject are actually implemented in the consistent and systematic pursuit of the objectives assigned to that body” (para.72);
• The monopoly is “based on a finding that criminal and fraudulent activities linked to gaming and gambling addiction are a problem in the territory of the Member State concerned, which the expansion of authorised and regulated activities would be capable of solving“(para.72);
• “only advertising that is measured and strictly limited to what is necessary in order to channel consumers towards controlled gaming networks” (para.71) is allowed, already having established that “the PMU makes use of sustained and growing advertising for its products, including on the internet, and is increasing the number of outlets for betting and for the products offered to bettors. It uses, moreover, a commercial strategy that seeks to draw in new audiences for the betting offered” (para.65). (1)
Sigrid Ligné, Secretary General of the EGBA said: ´Today´s ruling confirms that Member States have to choose between either a monopoly with policies which are genuinely designed to reduce gambling opportunities or a well regulated market where also EU operators can provide their services. It is a clear question of consistency.´
The Zeturf case concerns French legislation which has changed since the case was referred by the French Conseil d’Etat – the highest administrative Court – to the CJEU and thus no longer applies, but civil and criminal proceedings are nevertheless still being pursued against the Zeturf Limited, an EU licensed and regulated company providing online gambling services. Now that the CJEU has given clear indications that the former law is not in compliance with EU law, these proceedings are likely to be dropped after an assessment by the national court.
Several complaints against the new French law of May 2010, partially regulating the online gambling market, are still pending both in France and at the European Commission. Separately, the Commission has already opened a State aid investigation against the French parafiscal levy on online horse-race betting, the decision on which is expected in the second half of 2011 (State aid case C 34/10).
Footnote:
(1) Underscore added
For further information or comment please contact:
Sigrid Ligné: +32 2 554 08 99
Sigrid.Ligne@egba.eu
The European Court today ruled once again that a monopoly can only be justified if findings prove that gambling related problems actually exist and a particularly high level of consumer protection is granted. This ruling, which concerns the former law, also adds pressure on the current French gambling legislation that was introduced in May 2010.
The European Gaming and Betting Association (EGBA) welcomes today’s ruling by the Court of Justice of the European Union (CJEU) stating once again that an EU Member State is not permitted to close its gambling market on public policy grounds while, at the same time, allowing its own monopoly operator to employ aggressive marketing encouraging consumers to play substantially more without evidencing that such marketing can effectively solve gambling related problems (Zeturf case C-212/08, para 70).
Since the French legislator has not considered it necessary to make a distinction between land-based and online distribution channels at the time of the referral, the national courts must assess the consistent and systematic approach of the French legislation as regards the entire horserace betting sector both online and offline.
In particular the CJEU insists that the French jurisdiction verifies whether:
• “the national authorities genuinely sought, at the material time, to ensure such a particularly high level of protection and whether, having regard to the level of protection sought, the establishment of a monopoly could actually be considered necessary” (para.47),
• “the State controls to which the activities of the body benefiting from the exclusive rights are, in principle, subject are actually implemented in the consistent and systematic pursuit of the objectives assigned to that body” (para.72);
• The monopoly is “based on a finding that criminal and fraudulent activities linked to gaming and gambling addiction are a problem in the territory of the Member State concerned, which the expansion of authorised and regulated activities would be capable of solving“(para.72);
• “only advertising that is measured and strictly limited to what is necessary in order to channel consumers towards controlled gaming networks” (para.71) is allowed, already having established that “the PMU makes use of sustained and growing advertising for its products, including on the internet, and is increasing the number of outlets for betting and for the products offered to bettors. It uses, moreover, a commercial strategy that seeks to draw in new audiences for the betting offered” (para.65). (1)
Sigrid Ligné, Secretary General of the EGBA said: ´Today´s ruling confirms that Member States have to choose between either a monopoly with policies which are genuinely designed to reduce gambling opportunities or a well regulated market where also EU operators can provide their services. It is a clear question of consistency.´
The Zeturf case concerns French legislation which has changed since the case was referred by the French Conseil d’Etat – the highest administrative Court – to the CJEU and thus no longer applies, but civil and criminal proceedings are nevertheless still being pursued against the Zeturf Limited, an EU licensed and regulated company providing online gambling services. Now that the CJEU has given clear indications that the former law is not in compliance with EU law, these proceedings are likely to be dropped after an assessment by the national court.
Several complaints against the new French law of May 2010, partially regulating the online gambling market, are still pending both in France and at the European Commission. Separately, the Commission has already opened a State aid investigation against the French parafiscal levy on online horse-race betting, the decision on which is expected in the second half of 2011 (State aid case C 34/10).
Footnote:
(1) Underscore added
For further information or comment please contact:
Sigrid Ligné: +32 2 554 08 99
Sigrid.Ligne@egba.eu
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