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
Donnerstag, 1. März 2012
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
Donnerstag, 24. März 2011
EGBA concerned at EC Green Paper on online gambling
Brussels, 24 March 2011
The European Gaming and Betting Association (EGBA) welcomes today’s publication of the Green Paper on online gambling that will allow for a factual discussion at EU level. At the same time, the EGBA expresses its concern with the apparent lack of commitment to curb further fragmentation of the common market and ensure that consumers throughout the EU enjoy consistent standards of regulated, safe and high-quality products.
Without clear EU framework rules, the European online gambling market, estimated at € 9.08 billion in 2011 (1), risks being driven underground into the hands of black market operators to the detriment of consumers, legitimate EU licensed operators and State finances.
Secretary General of EGBA Sigrid Ligné said: “We welcome the Commission coming forward with a Green Paper and a factual discussion on all aspects of online gambling. We are deeply concerned though that the focus of the paper seems to be on a national rather than an EU approach despite the clear cross-border nature of this sector. What we expect is the Commission to propose an EU regulatory framework for online gambling, as it has done for other inherently highly regulated sectors such as telecoms or pharmaceuticals. In parallel, the Commission in its role as guardian of the Treaty should vigorously and systematically pursue infringement proceedings against those Member States that continue to violate EU law.”
The EGBA’s main comments on the Green Paper are the following:
• The Commission rightly devotes much attention to the questions of consumer protection and prevention of fraud. Indeed as confirmed by the Commission, the Internet offers unique opportunities ‘as it provides the operators with more sophisticated possibilities to track the transactions of each player compared to off-line gambling formats’. Valuable initiatives have been developed in these areas, most recently by the European standards body CEN, which issued a workshop agreement on ‘Responsible Remote Gambling Measures’ on 24 February, setting out a list of 134 concrete measures that ensure responsible gambling and provide greater protection for consumers throughout the EU.
• Unfortunately the Commission is silent on the need for hard EU rules to combat the increasing fragmentation of the Internal Market through uncoordinated national prohibitions and restrictions. Yet, as the Commission itself admits: ‘The development of internet and the increased supply of online gambling services have made it more difficult for the different national regulatory models to co-exist.’
• The cost of this fragmentation and duplication of national requirements is particularly high. A study conducted in 2010 by Price Waterhouse Coopers shows that, for France alone, the administrative and technical costs for obtaining and maintaining the national licence to operate on the French market are € 8.7 million for a single EU operator, already licensed in one or several other Member States. National licensing regimes imposing such burdens on the service providers only benefit non-EU licensed black market operators to the detriment of player protection.
• Go-it-alone national rule-making risks being at odds with the jurisprudence of the CJEU, which sets clear limits to restrictions that can be imposed on legitimate EU operators, and may infringe competition rules. Between 2006 and 2010, over 150 national draft acts and laws have been notified to the Commission for single market screening, and many have received a formal warning from the Commission for not complying with EU law. Infringement cases have been commenced against several national laws put in force despite the Commission’s early warning. However, since early 2008 no developments have taken place in the pending infringement cases and no new infringement proceedings have been opened.
Sigrid Ligné concluded: ´The launch of this Green Paper should under no circumstances cause the Commission to freeze pending or avoid opening new infringement cases against national regulations that are in violation of the Treaty.´
---------------------------------------------------------
(1) H2 Gambling Capital March 2011 (EU 27)
For further information or comment please contact:
Sigrid Ligné: +32 2 554 08 90
Sigrid.Ligne@egba.eu
About EGBA
The European Gaming and Betting Association is an association of leading European gaming and betting operators Bet-at-home.com, BetClic, bwin, Digibet, Expekt, Interwetten, PartyGaming 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 € 83.7 Billion GGR in 2012, thus keeping the lion’s share with 87% of the market. Source: H2 Gambling Capital, April 2010.
The European Gaming and Betting Association (EGBA) welcomes today’s publication of the Green Paper on online gambling that will allow for a factual discussion at EU level. At the same time, the EGBA expresses its concern with the apparent lack of commitment to curb further fragmentation of the common market and ensure that consumers throughout the EU enjoy consistent standards of regulated, safe and high-quality products.
Without clear EU framework rules, the European online gambling market, estimated at € 9.08 billion in 2011 (1), risks being driven underground into the hands of black market operators to the detriment of consumers, legitimate EU licensed operators and State finances.
Secretary General of EGBA Sigrid Ligné said: “We welcome the Commission coming forward with a Green Paper and a factual discussion on all aspects of online gambling. We are deeply concerned though that the focus of the paper seems to be on a national rather than an EU approach despite the clear cross-border nature of this sector. What we expect is the Commission to propose an EU regulatory framework for online gambling, as it has done for other inherently highly regulated sectors such as telecoms or pharmaceuticals. In parallel, the Commission in its role as guardian of the Treaty should vigorously and systematically pursue infringement proceedings against those Member States that continue to violate EU law.”
The EGBA’s main comments on the Green Paper are the following:
• The Commission rightly devotes much attention to the questions of consumer protection and prevention of fraud. Indeed as confirmed by the Commission, the Internet offers unique opportunities ‘as it provides the operators with more sophisticated possibilities to track the transactions of each player compared to off-line gambling formats’. Valuable initiatives have been developed in these areas, most recently by the European standards body CEN, which issued a workshop agreement on ‘Responsible Remote Gambling Measures’ on 24 February, setting out a list of 134 concrete measures that ensure responsible gambling and provide greater protection for consumers throughout the EU.
• Unfortunately the Commission is silent on the need for hard EU rules to combat the increasing fragmentation of the Internal Market through uncoordinated national prohibitions and restrictions. Yet, as the Commission itself admits: ‘The development of internet and the increased supply of online gambling services have made it more difficult for the different national regulatory models to co-exist.’
• The cost of this fragmentation and duplication of national requirements is particularly high. A study conducted in 2010 by Price Waterhouse Coopers shows that, for France alone, the administrative and technical costs for obtaining and maintaining the national licence to operate on the French market are € 8.7 million for a single EU operator, already licensed in one or several other Member States. National licensing regimes imposing such burdens on the service providers only benefit non-EU licensed black market operators to the detriment of player protection.
• Go-it-alone national rule-making risks being at odds with the jurisprudence of the CJEU, which sets clear limits to restrictions that can be imposed on legitimate EU operators, and may infringe competition rules. Between 2006 and 2010, over 150 national draft acts and laws have been notified to the Commission for single market screening, and many have received a formal warning from the Commission for not complying with EU law. Infringement cases have been commenced against several national laws put in force despite the Commission’s early warning. However, since early 2008 no developments have taken place in the pending infringement cases and no new infringement proceedings have been opened.
Sigrid Ligné concluded: ´The launch of this Green Paper should under no circumstances cause the Commission to freeze pending or avoid opening new infringement cases against national regulations that are in violation of the Treaty.´
---------------------------------------------------------
(1) H2 Gambling Capital March 2011 (EU 27)
For further information or comment please contact:
Sigrid Ligné: +32 2 554 08 90
Sigrid.Ligne@egba.eu
About EGBA
The European Gaming and Betting Association is an association of leading European gaming and betting operators Bet-at-home.com, BetClic, bwin, Digibet, Expekt, Interwetten, PartyGaming 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 € 83.7 Billion GGR in 2012, thus keeping the lion’s share with 87% of the market. Source: H2 Gambling Capital, April 2010.
Freitag, 18. März 2011
A View of European Gambling Regulation
Check out this SlideShare Presentation:
A view of european gambling regulation
View more documents from Martin Arendts.
Dienstag, 1. Februar 2011
Principality of Liechtenstein: Call for Tenders for a Casino License
by Attorney-at-Law Martin Arendts, M.B.L.-HSG
The new Gambling Act (Geldspielgesetz - GSG) and the Casino Ordinance (Spielbankenverordnung - SPBV) of the Principality of Liechtenstein allow the operation of a casino. Today, the government authorised the call for tenders. Until an evaluation report will be published, only one license will be granted. Applications for the license have to be filed by 31 March 2011, 4:30 p.m. tender documents can be requested from Amt für Volkswirtschaft for a fee of SFR 2.000,-.
The new Gambling Act (Geldspielgesetz - GSG) and the Casino Ordinance (Spielbankenverordnung - SPBV) of the Principality of Liechtenstein allow the operation of a casino. Today, the government authorised the call for tenders. Until an evaluation report will be published, only one license will be granted. Applications for the license have to be filed by 31 March 2011, 4:30 p.m. tender documents can be requested from Amt für Volkswirtschaft for a fee of SFR 2.000,-.
Mittwoch, 13. Oktober 2010
Regulated online gaming industry calls for full EU harmonisation
Brussels, 13 October 2010 – Europe will gain from harmonised EU rules governing the gaming sector. That’s the message delivered by Norbert Teufelberger, Co-CEO of bwin, to a packed audience today in the European Parliament at the 3rd “Responsible Gaming Day” (RGD).
Organised by the European Gaming and Betting Association (EGBA), the body representing the licensed EU industry, this year’s RGD - entitled “Responsible Gaming in a digital single market” - brought together over 150 delegates including senior EU and national officials, representatives from the public and private gaming sectors, academia and civil society to discuss the state of play in EU and national gaming regulation.
Norbert Teufelberger, Co-CEO of bwin and chairman of the EGBA, continued: “With almost 2/3 of EU member states already working on or at least considering a reform of their gaming markets, there is a unique momentum now to ensure that regulation delivers for consumers, the industry and Europe. Regulation must be harmonised so that consumers receive similar high protection regardless of where they play. Online gaming is a cross-border activity and consumer protection needs to be applied cross-border as well”.
Speaking on behalf of the European Commission, Jean Bergevin, head of unit at DG Internal Market, said: “The Commission is determined to proceed with an objective and factual basis consultation at the earliest by the end of the year in the form of a green paper which will collect the information necessary to determine the most efficient and coherent systems addressing recognized public interest objectives”.
Host of the event in the European Parliament, Timothy Kirkhope, MEP added: “This is a golden opportunity to begin to set in place a level playing field for a sector which is struggling with a patchwork of different rules. I have great faith in Commissioner Barnier that that he will take heed of our discussions today, and begin to work out a strategy to ensure that online gambling can become a legitimate part of the internal market.”
For further information or comment please contact:
Sigrid Ligné: +32 2 554 08 90
Sigrid.Ligne@egba.eu
Organised by the European Gaming and Betting Association (EGBA), the body representing the licensed EU industry, this year’s RGD - entitled “Responsible Gaming in a digital single market” - brought together over 150 delegates including senior EU and national officials, representatives from the public and private gaming sectors, academia and civil society to discuss the state of play in EU and national gaming regulation.
Norbert Teufelberger, Co-CEO of bwin and chairman of the EGBA, continued: “With almost 2/3 of EU member states already working on or at least considering a reform of their gaming markets, there is a unique momentum now to ensure that regulation delivers for consumers, the industry and Europe. Regulation must be harmonised so that consumers receive similar high protection regardless of where they play. Online gaming is a cross-border activity and consumer protection needs to be applied cross-border as well”.
Speaking on behalf of the European Commission, Jean Bergevin, head of unit at DG Internal Market, said: “The Commission is determined to proceed with an objective and factual basis consultation at the earliest by the end of the year in the form of a green paper which will collect the information necessary to determine the most efficient and coherent systems addressing recognized public interest objectives”.
Host of the event in the European Parliament, Timothy Kirkhope, MEP added: “This is a golden opportunity to begin to set in place a level playing field for a sector which is struggling with a patchwork of different rules. I have great faith in Commissioner Barnier that that he will take heed of our discussions today, and begin to work out a strategy to ensure that online gambling can become a legitimate part of the internal market.”
For further information or comment please contact:
Sigrid Ligné: +32 2 554 08 90
Sigrid.Ligne@egba.eu
Mittwoch, 8. September 2010
EGBA: Online gaming: Time for change in Europe
In landmark ruling the ECJ concludes that the German sports betting and lotteries monopoly is unjustified and inconsistent
Brussels, 8 September 2010
Three preliminary rulings(1) handed down today by the European Court of Justice confirm that the “German rules do not limit games of chance in a consistent and systematic manner” and stresses that “national rules concerning that monopoly, held to be contrary to the fundamental freedoms of the Union, cannot continue to apply during the time necessary to bring it into conformity with (European) Union law” (ECJ press release 78/10).
The Court stresses in particular that “the holders of public monopolies carry out intensive advertising campaigns with a view to maximize profit from lotteries thereby departing from the objectives justifying the existence of those monopolies” (ECJ press release 78/10) .
The Interstate Treaty on Gambling that came into force in 2008 and was supposed to expire at the end of 2011 currently bans online gaming and betting activities in the country. In a recent study Gold Media concluded that the ban had no effect on the yearly 30% growth in consumer demand for online gaming and betting in Germany, but rather had pushed the consumer to portals operated outside of Germany. (2)
The ECJ rulings come at a time of intense political debate in Germany and other European countries on the existing gaming legislation. “More and more stakeholders are raising concerns with regard to the efficiency of a ban on online gaming and are calling on the government to overturn the Interstate Treaty. Their arguments will be bolstered by today´s rulings”, said Sigrid Ligné, Secretary General of the European Gaming and Betting Association.
“When it comes to consumer protection, the prohibition of online gaming makes no sense. As a matter of fact, online gaming and betting is a popular leisure activity for millions of people. Neither a total ban nor a state monopoly are suitable to meet the aim of protecting consumers”, added Sigrid Ligné.
"There is a need for a political solution that does justice to the demand of consumers to play online and that at the same time ensures a high level of consumer protection. Other Member States have opened or are opening their markets and moving away from a monopoly regime to a multi-operator licensing system. They show that consumers can be better protected in a market that is both regulated and open to competition. It is now up to German politicians to draw the appropriate conclusions and take their responsibility towards their consumers”, said Sigrid Ligné.
- - -
1 C-409/06, C-46/08, C-316/07
2 http://www.goldmedia.com/uploads/media/Pressemeldung_Goldmedia_Gluecksspiel_Deutschland.pdf
Brussels, 8 September 2010
Three preliminary rulings(1) handed down today by the European Court of Justice confirm that the “German rules do not limit games of chance in a consistent and systematic manner” and stresses that “national rules concerning that monopoly, held to be contrary to the fundamental freedoms of the Union, cannot continue to apply during the time necessary to bring it into conformity with (European) Union law” (ECJ press release 78/10).
The Court stresses in particular that “the holders of public monopolies carry out intensive advertising campaigns with a view to maximize profit from lotteries thereby departing from the objectives justifying the existence of those monopolies” (ECJ press release 78/10) .
The Interstate Treaty on Gambling that came into force in 2008 and was supposed to expire at the end of 2011 currently bans online gaming and betting activities in the country. In a recent study Gold Media concluded that the ban had no effect on the yearly 30% growth in consumer demand for online gaming and betting in Germany, but rather had pushed the consumer to portals operated outside of Germany. (2)
The ECJ rulings come at a time of intense political debate in Germany and other European countries on the existing gaming legislation. “More and more stakeholders are raising concerns with regard to the efficiency of a ban on online gaming and are calling on the government to overturn the Interstate Treaty. Their arguments will be bolstered by today´s rulings”, said Sigrid Ligné, Secretary General of the European Gaming and Betting Association.
“When it comes to consumer protection, the prohibition of online gaming makes no sense. As a matter of fact, online gaming and betting is a popular leisure activity for millions of people. Neither a total ban nor a state monopoly are suitable to meet the aim of protecting consumers”, added Sigrid Ligné.
"There is a need for a political solution that does justice to the demand of consumers to play online and that at the same time ensures a high level of consumer protection. Other Member States have opened or are opening their markets and moving away from a monopoly regime to a multi-operator licensing system. They show that consumers can be better protected in a market that is both regulated and open to competition. It is now up to German politicians to draw the appropriate conclusions and take their responsibility towards their consumers”, said Sigrid Ligné.
- - -
1 C-409/06, C-46/08, C-316/07
2 http://www.goldmedia.com/uploads/media/Pressemeldung_Goldmedia_Gluecksspiel_Deutschland.pdf
Dienstag, 27. Juli 2010
right2bet: EU CONSUMERS LEFT DRASTICALLY SHORT-CHANGED BY STATE GAMBLING MONOPOLIES
RIGHT2BET has exclusively revealed that throughout the World Cup European state betting monopolies offered their customers, on average, 32% worse odds than those available with private betting companies.
Monopoly customers wishing to back their home nation in South Africa were subjected to 35% worse odds than those being offered by the EU-licensed private sector operators that their governments do not allow them to use.
The startling figures have been revealed in the Right2bet World Cup Report which analysed the odds offered on every World Cup match by seven of Europe's biggest betting monopolies, before comparing them to the equivalent prices being offered by other licensed European operators.
The aim of the report was to investigate whether or not Europe's betting monopolies were short-changing their customers via the help of legislation which protects their existence and market dominance.
Right2bet is campaigning for the right of all European consumers to be able to bet with the licensed operator of their choice, regardless of the Member State in which they are based.
Right2bet spokesman Ari Last said: "The figures emanating from this report are quite shocking. Millions of EU consumers who wanted to bet during the World Cup were subjected to hugely inferior prices by the monopolies that their governments strive so hard to protect."
"The protectionist behaviour of certain Member States when it comes to online gambling is a situation that does not conform to the ethos of the single-market, and we hope that the findings of this report will highlight what is undoubtedly an unjust reality."
Right2bet World Cup Report key points:
• Monopolies offered their customers 32% worse odds than licensed private operators
• The 'Perfect Bettor' forced to bet with a monopoly would have made €629 less than they would have done if they were allowed to bet with other EU-licensed operators in the private sector
• On average, a monopoly customer choosing to back the 'favourite' throughout every one of the 64 tournament matches would have received 38% less value, while one who chose to back the 'outsider' throughout each game of the tournament would have received 35% less value
• Monopolies offered customers wishing to back their home nation 35% worse odds than private operators
• It is clear from the results published in this report that consumers using online gambling services in the EU are receiving significantly lower value when forced to use a state monopoly provider
Country breakdowns:
• Germany: 48% worse off
• Sweden: 40% worse off
• The Netherlands: 35% worse off
• France: 31.5% worse off
• Greece: 31% worse off
• Denmark: 14.4% worse off
Monopoly customers wishing to back their home nation in South Africa were subjected to 35% worse odds than those being offered by the EU-licensed private sector operators that their governments do not allow them to use.
The startling figures have been revealed in the Right2bet World Cup Report which analysed the odds offered on every World Cup match by seven of Europe's biggest betting monopolies, before comparing them to the equivalent prices being offered by other licensed European operators.
The aim of the report was to investigate whether or not Europe's betting monopolies were short-changing their customers via the help of legislation which protects their existence and market dominance.
Right2bet is campaigning for the right of all European consumers to be able to bet with the licensed operator of their choice, regardless of the Member State in which they are based.
Right2bet spokesman Ari Last said: "The figures emanating from this report are quite shocking. Millions of EU consumers who wanted to bet during the World Cup were subjected to hugely inferior prices by the monopolies that their governments strive so hard to protect."
"The protectionist behaviour of certain Member States when it comes to online gambling is a situation that does not conform to the ethos of the single-market, and we hope that the findings of this report will highlight what is undoubtedly an unjust reality."
Right2bet World Cup Report key points:
• Monopolies offered their customers 32% worse odds than licensed private operators
• The 'Perfect Bettor' forced to bet with a monopoly would have made €629 less than they would have done if they were allowed to bet with other EU-licensed operators in the private sector
• On average, a monopoly customer choosing to back the 'favourite' throughout every one of the 64 tournament matches would have received 38% less value, while one who chose to back the 'outsider' throughout each game of the tournament would have received 35% less value
• Monopolies offered customers wishing to back their home nation 35% worse odds than private operators
• It is clear from the results published in this report that consumers using online gambling services in the EU are receiving significantly lower value when forced to use a state monopoly provider
Country breakdowns:
• Germany: 48% worse off
• Sweden: 40% worse off
• The Netherlands: 35% worse off
• France: 31.5% worse off
• Greece: 31% worse off
• Denmark: 14.4% worse off
Samstag, 24. Juli 2010
Referral to ECJ from UK with regard to the taxation of FOBTs ("Rank Group")
Reference for a preliminary ruling from The Upper Tribunal (Tax and Chancery Chamber) (United Kingdom) made on 26 May 2010 - Commissioners for Her Majesty's Revenue and Customs v The Rank Group PLC
(Case C-260/10)
Language of the case: English
Referring court
The Upper Tribunal (Tax and Chancery Chamber) (United Kingdom)
Parties to the main proceedings
Applicant: Commissioners for Her Majesty's Revenue and Customs
Defendant: The Rank Group PLC
Questions referred
Where a Member State in the exercise of its discretion under Article 13B(f) of the Sixth VAT Directive1 subjected certain types of machines used for gambling ("Part III gaming machines") to VAT, while retaining exemption for other such machines (which included fixed odds betting terminals, "FOBTs"), and where it is contended that in so doing the Member State infringed the principle of fiscal neutrality: is it
(i) determinative, or (ii) relevant, when comparing Part III gaming machines and FOBTs that
(a) FOBTs offered activities that were "betting" under domestic law (or activities that the relevant regulatory authority, for the purposes of exercising its regulatory powers, was prepared to treat as "betting" under domestic law)
and
(b) Part III gaming machines offered activities subject to a different classification under domestic law, namely "gaming" and that gaming and betting were subject to different regulatory regimes under that Member State's law relating to the control and regulation of gambling? If so, what are the differences between the regulatory regimes in question to which the national court should have regard?
In determining whether the principle of fiscal neutrality requires the same tax treatment of the types of machine referred to in Question 1 (FOBTs and Part III gaming machines), what level of abstraction should be adopted by the national court in determining whether the products are similar? In particular, to what extent is it relevant to take into account the following matters:
a. similarities and differences in the permitted maximum stakes and prizes as between FOBTs and Part III gaming machines;
b. that FOBTs could be played only on certain types of premises licensed for betting, which were different, and subject to regulatory constraints that were different from those applicable to, premises licensed for gaming (although FOBTs and up to two Part III gaming machines could be played alongside each other in premises licensed for betting);
c. that the chances of winning the prize on FOBTs were directly related to the published fixed odds, whereas the chances of winning on Part III gaming machines could in some cases be varied by a device that ensured a particular percentage return to the operator and player over time;
d. similarities and differences in the formats available on FOBTs and Part III gaming machines;
e. similarities and differences as between FOBTs and Part III gaming machines in the interaction which could occur between the player and the machine;
f. whether or not the matters referred to above were either known to the generality of players of the machines or regarded by them as relevant or important;
g. whether the difference in VAT treatment is justified by any of the above?
In a situation where a Member State, in the exercise of its discretion under Article 13B(f) of the Sixth VAT Directive, exempted gambling from VAT but subjected a defined class of machines used for gambling to VAT: -
a) is there in principle a defence of due diligence available to a Member Sate to a claim that the principle of fiscal neutrality has been infringed by that Member Sate; and
b) if the answer to (a) is "yes", what factors are relevant in determining whether or not the Member Sate is entitled to rely on that defence?
____________
1 - Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment OJ L 145, p. 1
(Case C-260/10)
Language of the case: English
Referring court
The Upper Tribunal (Tax and Chancery Chamber) (United Kingdom)
Parties to the main proceedings
Applicant: Commissioners for Her Majesty's Revenue and Customs
Defendant: The Rank Group PLC
Questions referred
Where a Member State in the exercise of its discretion under Article 13B(f) of the Sixth VAT Directive1 subjected certain types of machines used for gambling ("Part III gaming machines") to VAT, while retaining exemption for other such machines (which included fixed odds betting terminals, "FOBTs"), and where it is contended that in so doing the Member State infringed the principle of fiscal neutrality: is it
(i) determinative, or (ii) relevant, when comparing Part III gaming machines and FOBTs that
(a) FOBTs offered activities that were "betting" under domestic law (or activities that the relevant regulatory authority, for the purposes of exercising its regulatory powers, was prepared to treat as "betting" under domestic law)
and
(b) Part III gaming machines offered activities subject to a different classification under domestic law, namely "gaming" and that gaming and betting were subject to different regulatory regimes under that Member State's law relating to the control and regulation of gambling? If so, what are the differences between the regulatory regimes in question to which the national court should have regard?
In determining whether the principle of fiscal neutrality requires the same tax treatment of the types of machine referred to in Question 1 (FOBTs and Part III gaming machines), what level of abstraction should be adopted by the national court in determining whether the products are similar? In particular, to what extent is it relevant to take into account the following matters:
a. similarities and differences in the permitted maximum stakes and prizes as between FOBTs and Part III gaming machines;
b. that FOBTs could be played only on certain types of premises licensed for betting, which were different, and subject to regulatory constraints that were different from those applicable to, premises licensed for gaming (although FOBTs and up to two Part III gaming machines could be played alongside each other in premises licensed for betting);
c. that the chances of winning the prize on FOBTs were directly related to the published fixed odds, whereas the chances of winning on Part III gaming machines could in some cases be varied by a device that ensured a particular percentage return to the operator and player over time;
d. similarities and differences in the formats available on FOBTs and Part III gaming machines;
e. similarities and differences as between FOBTs and Part III gaming machines in the interaction which could occur between the player and the machine;
f. whether or not the matters referred to above were either known to the generality of players of the machines or regarded by them as relevant or important;
g. whether the difference in VAT treatment is justified by any of the above?
In a situation where a Member State, in the exercise of its discretion under Article 13B(f) of the Sixth VAT Directive, exempted gambling from VAT but subjected a defined class of machines used for gambling to VAT: -
a) is there in principle a defence of due diligence available to a Member Sate to a claim that the principle of fiscal neutrality has been infringed by that Member Sate; and
b) if the answer to (a) is "yes", what factors are relevant in determining whether or not the Member Sate is entitled to rely on that defence?
____________
1 - Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment OJ L 145, p. 1
And yet another referral to the ECJ from Italy with regard to the cross-border provision of sports betting ("Minesi")
Reference for a preliminary ruling from the Tribunale del Riesame di Verbania (Italy) lodged on 4 June 2010 - Criminal proceedings against Matteo Minesi
(Case C-279/10)
Language of the case: Italian
Referring court
Tribunale del Riesame di Verbania
Party to the main proceedings
Matteo Minesi
Question referred
The Court of Justice is requested to interpret Articles 43 and 49 of the Treaty establishing the European Union with reference to freedom of establishment and freedom to provide services in the sector of betting on sports events in order to establish whether or not those Treaty provisions permit national rules establishing a State monopoly and a system of licences and authorisations which, within the context of a given number of licences:
(a) tend generally to protect holders of licences issued at an earlier period on the basis of a procedure that unlawfully excluded some operators;
(b) in fact ensure the maintenance of commercial positions acquired following a procedure that unlawfully excluded certain operators (by, for example, prohibiting new licensees from locating their kiosks within a specified distance of those already in existence);
(c) provide cases in which the licence may lapse with forfeiture of very large guarantee deposits, including the case in which the licensee directly or indirectly carries on cross-border gaming activities analogous to those under the licence.
(Case C-279/10)
Language of the case: Italian
Referring court
Tribunale del Riesame di Verbania
Party to the main proceedings
Matteo Minesi
Question referred
The Court of Justice is requested to interpret Articles 43 and 49 of the Treaty establishing the European Union with reference to freedom of establishment and freedom to provide services in the sector of betting on sports events in order to establish whether or not those Treaty provisions permit national rules establishing a State monopoly and a system of licences and authorisations which, within the context of a given number of licences:
(a) tend generally to protect holders of licences issued at an earlier period on the basis of a procedure that unlawfully excluded some operators;
(b) in fact ensure the maintenance of commercial positions acquired following a procedure that unlawfully excluded certain operators (by, for example, prohibiting new licensees from locating their kiosks within a specified distance of those already in existence);
(c) provide cases in which the licence may lapse with forfeiture of very large guarantee deposits, including the case in which the licensee directly or indirectly carries on cross-border gaming activities analogous to those under the licence.
New referral to the ECJ from Italy with regard to the cross-border provision of sports betting ("Sacci")
Reference for a preliminary ruling from the Tribunale di Roma (Italy), made on 23 March 2010 - Criminal proceedings against Alessandro Sacchi
(Case C-255/10)
Language of the case: Italian
Referring court
Tribunale di Roma
Party to the main proceedings
Alessandro Sacchi
Question referred
What interpretation is to be given to Articles 43 EC and 49 EC with reference to freedom of establishment and freedom to provide services in the sector of betting on sports events, regard being had also to the principle of effective judicial protection, in order to establish whether or not those Treaty provisions permit national rules establishing a State monopoly and a system of licences and authorisations which, within the context of a given number of licences,:
(a) tend generally to protect holders of licences issued at an earlier period on the basis of a procedure that unlawfully excluded certain operators;
(b) ensure the de facto maintenance of commercial positions acquired at the conclusion of a procedure that unlawfully excluded certain operators (by, for example, prohibiting new licensees from locating their betting outlets within a specified distance from those already in existence);
(c) lay down cases in which the licence may lapse, with forfeiture of large guarantee deposits, including the case in which the licensee directly or indirectly carries on cross-border gaming activities analogous to those under the licence?
(Case C-255/10)
Language of the case: Italian
Referring court
Tribunale di Roma
Party to the main proceedings
Alessandro Sacchi
Question referred
What interpretation is to be given to Articles 43 EC and 49 EC with reference to freedom of establishment and freedom to provide services in the sector of betting on sports events, regard being had also to the principle of effective judicial protection, in order to establish whether or not those Treaty provisions permit national rules establishing a State monopoly and a system of licences and authorisations which, within the context of a given number of licences,:
(a) tend generally to protect holders of licences issued at an earlier period on the basis of a procedure that unlawfully excluded certain operators;
(b) ensure the de facto maintenance of commercial positions acquired at the conclusion of a procedure that unlawfully excluded certain operators (by, for example, prohibiting new licensees from locating their betting outlets within a specified distance from those already in existence);
(c) lay down cases in which the licence may lapse, with forfeiture of large guarantee deposits, including the case in which the licensee directly or indirectly carries on cross-border gaming activities analogous to those under the licence?
Dienstag, 20. Juli 2010
Online gaming and betting: Polish draft legislation fails EU screening test
The European Commission issued yesterday a detailed opinion against the Polish draft legislation regulating online gaming and betting. The Polish draft legislation also raised concerns among a number of Member States such as the United Kingdom and Malta.
Sigrid Ligné, Secretary General of EGBA said: “We support the Polish government’s intention to join the growing number of countries regulating the online gaming and betting market in the EU. However, the current draft foresees a wide range of obstacles and obligations which will make it highly difficult for EU licensed and regulated operators to apply for a license in Poland. We urge Poland to revise its draft and align it with the requirements of the EU Treaty.”
According to the EGBA, a number of key provisions in the draft are highly doubtful under EU law. This includes:
- the requirement for licensees to be established in Poland either in the form of a joint stock company or in the form of a limited company with a very high share capital
- the possibility to exclude companies whose shares are quoted on the stock exchanges
- the requirement for online betting companies to install and store their servers in Poland
- the obligation for all transactions related to the betting services to be carried out through a Polish bank or in a branch of a foreign bank established in Poland
- the unjustified exclusion of certain games such as online poker
- the huge differences (in terms of financial guarantees and license fees) required for online and offline operators
“Some of these provisions seem to stem from a legitimate wish to regulate and enforce the rules for the online gaming market but they duplicate requirements already fulfilled in other jurisdictions. EU licensed and regulated companies can fulfill all necessary requirements on fraud prevention and consumer protection without being necessarily established in Poland. This draft law would leave Polish consumers without a fair, secure and competitive online gaming market” added Sigrid Ligné.
In addition, some of the provisions such as the licensing requirements and advertising restrictions also beg the question as to whether the law will be economically attractive for EU licensed operators. The Polish draft law was notified to the European Commission and Member States on 14 April 2010. Today’s detailed opinion extends the standstill period until 16 August, during which time Poland cannot adopt its draft legislation. Poland is required to reply to the Commission’s views. If Poland fails to take into account the Commission’s objections, the Commission can immediately launch infringement proceedings.
press release of EGBA
Sigrid Ligné, Secretary General of EGBA said: “We support the Polish government’s intention to join the growing number of countries regulating the online gaming and betting market in the EU. However, the current draft foresees a wide range of obstacles and obligations which will make it highly difficult for EU licensed and regulated operators to apply for a license in Poland. We urge Poland to revise its draft and align it with the requirements of the EU Treaty.”
According to the EGBA, a number of key provisions in the draft are highly doubtful under EU law. This includes:
- the requirement for licensees to be established in Poland either in the form of a joint stock company or in the form of a limited company with a very high share capital
- the possibility to exclude companies whose shares are quoted on the stock exchanges
- the requirement for online betting companies to install and store their servers in Poland
- the obligation for all transactions related to the betting services to be carried out through a Polish bank or in a branch of a foreign bank established in Poland
- the unjustified exclusion of certain games such as online poker
- the huge differences (in terms of financial guarantees and license fees) required for online and offline operators
“Some of these provisions seem to stem from a legitimate wish to regulate and enforce the rules for the online gaming market but they duplicate requirements already fulfilled in other jurisdictions. EU licensed and regulated companies can fulfill all necessary requirements on fraud prevention and consumer protection without being necessarily established in Poland. This draft law would leave Polish consumers without a fair, secure and competitive online gaming market” added Sigrid Ligné.
In addition, some of the provisions such as the licensing requirements and advertising restrictions also beg the question as to whether the law will be economically attractive for EU licensed operators. The Polish draft law was notified to the European Commission and Member States on 14 April 2010. Today’s detailed opinion extends the standstill period until 16 August, during which time Poland cannot adopt its draft legislation. Poland is required to reply to the Commission’s views. If Poland fails to take into account the Commission’s objections, the Commission can immediately launch infringement proceedings.
press release of EGBA
Abonnieren
Posts (Atom)