CJEU: ADVOCATE GENERAL CRITISISES THE CONSISTENCY OF AUSTRIAN GAMBLING LEGISLATION

EGBA welcomes today’s Opinion of Advocate General (AG) Sharpston in the Pfleger case (C-390/12) which reconfirms existing case law that national gambling legislation should be consistent and that it is up to the Member State to provide the necessary evidence to this effect.

Brussels, 14 November 2013

• AG Shapston recalled constant CJEU case-law that "[t]he burden of proving that the restriction is proportionate rests with the Austrian authorities", in particular to provide all necessary evidence that there has been a specific problem in Austria at the material time and that the national measure might actually solve that problem (para 58). (1)
• The license holder's "[a]dvertising that encourages gambling by trivialising it, giving it a positive image or increasing its attractiveness aims to expand the overall market for gaming activities rather than channelling the existing market to certain providers. Such an expansionist commercial policy is plainly inconsistent with an aim of achieving high level of protection for consumers". (para 60)
• AG Sharpston recalls settled CJEU case-law that the violation of EU law "precludes the imposition of criminal penalties for infringing the restriction" (para 73).
• Finally, AG Sharpston reviews the national law with regard to obligations under the EU Charta of Fundamental Rights. She concludes that Member States have to satisfy obligations both, under the EU freedoms as well as the EU Charta of Fundamental Rights (see for example para 70).

EGBA Secretary General Maarten Haijer comments: "We welcome AG Sharpston’s Opinion in questioning the compliance of the Austrian gambling legislation with EU law. At heart is the issue whether the Austrian gambling law is consistent rather than arbitrary. It becomes clear from today's Opinion that the AG does not consider the Austrian gambling legislation as fulfilling the consistency requirement in order to comply with EU legislation and existing jurisprudence.”

Haijer further adds: "By reaffirming the obligation for national regulation to be consistent, the Opinion once again confirms the “red lines” of EU jurisprudence that Member States cannot cross. It reinforces the need for the European Commission to fulfill its role as guardian of the treaties, including by making use of infringement procedures where needed.”

The Austrian Gambling system has been subject to several court cases both on a national and EU level, in particular the CJEU cases C-64/08, Engelmann; C-347/09, Dickinger and Ömer as well as C-176/11, Hit and Hit Larix, in which the CJEU has detected major inconsistencies of Austrian gaming legislation leading to its non-compliance with EU law.

AG Sharpston’s Opinion is not legally binding but the Court often follows the Opinion in its ruling.

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(1) The first and only prevalence study on Austria [Kalke et al 2011] shows very similar prevalence rates as in open, liberalized markets such as UK

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For more information, please contact: Maarten Haijer, Secretary General of EGBA: 
+32 2 554 08 90, egba@egba.eu   

 About EGBA 
 

The EGBA is an association of leading European gaming and betting operators Bet-at-home.com, BetClic, bwinparty, Digibet, Expekt, and Unibet. The Gibraltar Betting and Gaming Association (GBGA) is an affiliate member of EGBA. 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 from € 79.7 Billion GGR in 2012 to € 83 Billion GGR in 2015, thus keeping the lion’s share with 85% of the market. Source: H2 Gambling Capital, September 2013.

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