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Austrian gambling law inconsistencies
Wednesday April 30,2014 : EUROPEAN COURT OF JUSTICE REITERATES ONLINE GAMBLING RULES
Austrian law inconsistencies again confirmed in Pfleger case.
The European Court of Justice reiterated its guidelines for national online gambling jurisdictions Wednesday in finding that Austrian laws lacked the necessary consistency.
Last year Advocate General Sharpston issued on Opinion on the Pfleger case (C-390/12) concluding that, unlike the Austrian current system, national gambling legislation should be strictly consistent. The ECJ has now agreed with the AG and confirmed that the burden of proof rests with the national regulator of the Member State involved in any dispute over EU rules on the freedom of trade and services.
The Court affirmed its well-settled case-law in which a national gambling legislation can only be compliant with EU law if it is consistent.
In other words, if the declared public interest goals are actually pursued free of hypocrisy, in a consistent and systematic manner.
The Court also ruled that the burden of proof regarding the proportionality and consistency of a measure rests with the Member States. Notably, this is the first time the ECJ has confirmed the applicability of the Charter of Fundamental Rights in a ruling on gambling.
Reiterating the proof necessary for Member States to justify a restrictive measure, the Court said that it had to be satisfied that the measure in question was consistent, systematic and proportional, and that the true purpose is to fight crime and problem gambling, and not to simply increase state revenues.
Therefore, the CJEU reconfirms that "Article 56 TFEU must be interpreted as precluding national legislation, where that legislation does not actually pursue the objective of protecting gamblers or fighting crime in a consistent and systematic manner."
The Court concluded: "Where a restrictive system has been established for games of chance and that system is incompatible with Article 56 TFEU, an infringement of the system by an economic operator cannot give rise to penalties." (para 64, emphasis added).
Commenting on the ruling, Maarten Haijer of the trade body the European Gaming and Betting Association, said:
"We welcome the Court’s decision, which confirms that the Austrian gambling legislation is in breach of EU law. Today’s ruling strengthens the requirement that Member States’ gambling laws should be consistent.
"In this context, we want to remind that the European Commission acted in its proper role as guardian of the treaties by launching formal infringement proceedings against six Member States last November. Whilst we encourage the Commission to take the appropriate next steps in these proceedings and open new proceedings where necessary, we especially urge the Member States to pursue their stated public interest objectives in a consistent and systematic manner free of hypocrisy.”
The Austrian gambling system has recently been subject to several Court cases both on national and EU levels, 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 Court detected major inconsistencies in Austrian gambling legislation and declared that major parts of the Austrian system are non-compliant with EU law.
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