Brussels, 15/09/2011 (Agence Europe) - A monopoly on the operation of internet casino games is justifiable only if it seeks “in a consistent and systematic manner” to combat the risks connected with such games. When assessing the proportionality of a monopoly, the national courts are not required to take into account the monitoring and control systems regulating companies established in another member state, given that there is no harmonisation of rules in the EU.
Therein lies the substance of the judgment delivered by the Court of Justice of the EU in case C-347/09 on Thursday 15 September in response to questions from the Bezirksgericht Linz (District Court, Linz, Austria) on the compatibility of the Austrian monopoly on online gambling with Article 49 of the EC Treaty on freedom to provide services. Two managers of an Austrian-based internet server operating on behalf of Maltese subsidiaries offering online gambling are being prosecuted for what is in Austria a criminal offence, organising games of chance without a concession. At present, the Austrian state holds that monopoly.
In its ruling, the Court notes that, according to its case-law, a monopoly on games of chance constitutes a restriction of the freedom to provide services but that such a restriction may nevertheless be justified by overriding reasons in the public interest, such as the objective of ensuring a particularly high level of consumer protection (against addition to gambling, or criminal activities). While it is for national courts to determine whether such a restriction is proportionate and coherent with the pursuit of these objectives, the Court refers them to its case law. Thus, to be consistent with the objective of tackling addition to gambling, fraud and criminality in this area, national legislation establishing a monopoly which allows the holder of the monopoly to follow an expansionist policy must genuinely be based on a finding that the crime and fraud linked to gaming are a problem in the member state concerned, “which could be remedied by expanding authorised regulated activities” and allow “only advertising which is moderate and strictly limited to what is necessary to channel consumers towards controlled gaming networks is permissible”.
As to whether checks on operators of games of chance carried out in other member states - such as those to which, in the present case, the Maltese subsidiaries are subject in Malta - must be taken into account by the authorities of another member state (in the present case, Austria), the Court says that, given the absence of harmonisation at EU level of the relevant legislation, no duty of mutual recognition of authorisations issued by other member states can exist. That a member state has opted for a system of protection which differs from that adopted by another member state cannot affect the assessment of the need for and proportionality of the relevant provisions. Thus, in the current state of EU law, case-law - to the effect that it is not compatible with the freedom to provide services for the host member state to make a provider subject to restrictions for safeguarding the public interest, in so far as that interest is already safeguarded in the member state where the provider is established - does not apply, and member states have wide discretion in relation to the objectives they wish to pursue and the level of protection they seek. Furthermore, member states do not necessarily have the same technical means available for monitoring online games of chance and a member state may legitimately wish to monitor an economic activity which is carried on in its territory, and that would be impossible if it had to rely on checks made by the authorities of another member state using regulatory systems outside its control. (FG/transl.rt)