Brussels, 09/07/2010 (Agence Europe) - In a judgment delivered on Thursday 8 July (joined cases C-447/08 and C-448/08) the EU Court of Justice said that European law (Article 49 EC) does not preclude Swedish legislation which prohibits residents from advertising gambling organised in other member states by private operators for profit. However, the same Article 49 does not allow legislation in a member state which, as in this case, submits gambling to a regime of exclusive rights and which makes the promotion of gambling in another member state liable to more severe penalties than promotion of gambling organised without a licence in the country itself. The Court said, however, that it was for member states' courts and not for it to interpret national provisions and to ascertain whether, on the facts, those infringements are prosecuted by the competent authorities with the same diligence and culminate in the imposition of equivalent penalties by the competent courts.
The Court was responding to questions put to it by the Stockholm Court of Appeal, which has to rule on the appeals by an editor-in-chief and a publisher, fined for having published in their respective Swedish newspapers adverts for gambling offered on internet sites in Malta and the United Kingdom. The Swedish court asked about compliance with Community law of the laws on which these fines were based and, in particular, the provisions which set the penalties to be applied to the above-mentioned infringements.
In its preamble, the Court states that, if the effect of the Swedish legislation is to restrict the participation of Swedish consumers in gambling organised legally in other member states and in unlicensed gambling in Sweden, Community law allows restrictions justified, inter alia, on grounds of public policy, public security or public health, as long as they are proportional to the objectives sought. It observes that the exclusion of private profit-making interests from the gambling sector is a fundamental principle of the Swedish legislation, which reserves these activities to bodies pursuing objectives which are socially beneficial or in the public interest (public or charitable bodies). This is one of the prerogatives of member states which, in the absence of harmonisation on gambling at EU level, may impose restrictions as to the free movement of services in this area for reasons of public order or according to their values or cultural, moral or religious considerations.
As for the difference in penalties between the two infringements, the Court notes that Swedish law provides for criminal sanctions only in relation to the promotion of gambling organised in another member state and not to the promotion of gambling organised in Sweden without a licence, that latter offence being punishable only by an administrative penalty. Thus, the legal basis for the penalties with regard to the two infringements is discriminatory. (F.G./transl.rt)