Information from the media on Court of Justice rulings often leave out an essential factor: the importance the Court attributes to social, health and environmental motives that can justify certain infringements to the four freedoms of movement (goods, capital, services and people), which are the basis of the extended and united European market. I am only aware of Agence EUROPE duly taking into account both aspects: respect for the four freedoms and assessing the circumstances.
Betting and lotteries. The Court decision on a specific case of restrictions in the money gambling and betting sector explains the reasons for my commentary. The Court annulled penal fines (imposed by the Criminal Court) on Stanley International Betting (Stanley Bet) in Italy, which took in bets on sports in this country on behalf of the British group, but without having obtained the necessary policy authorisation. The case in point is a minor one but this ruling is important as a precedent because the European Commission initiated around ten infringement procedures against Germany, France, Italy, Sweden, the Netherlands, Austria, Denmark, Finland and Hungary over restrictions in the same sector and is currently examining cases that warrant a reasoned opinion, the stage preceding going to the Court of Justice.
Stanley Bet officials and their lawyers logically presented the ruling as a decisive step towards the common market in betting and lotteries, as well as a “clear warning” to all member states to put a stop to protectionism. The ruling, however, is not limited to the simple quashing of fines. The Court of Justice acknowledges that the fact of subjecting a business to restrictions in the gaming sector includes restrictions to the right of establishment and free provision of services but it adds that “the moral and financial consequences that can harm individuals and society in which gaming and betting take place can justify such restrictions”. Restrictions must, however, be in proportion to the objective pursued. Italian provisions do not respect this condition in two respects: they include criminal sanctions and exclude a priori authorisation of companies quoted on the stock exchange (which is the case for Stanley Bet). They stipulate that operators have to be subject to control, in order to prevent criminals using the betting sector to their own ends, and that in this respect shareholders should be identifiable. On the stock exchange, shares change hands every day.
The Court ruled that this measure went beyond what was necessary and that there were other ways of reaching this objective. It did not, however, oppose the principle of restrictions.
Reactions in other member states are instructive. The French bodies involved said that the Court of Justice was in keeping with the French position, because it recognised that restrictions can be justified by moral, religious and cultural motives. In Belgium, the senior civil servant in charge of this sector affirmed that the ruling strengthened the position of his country. The licensing system is legitimate because it protects consumers and prevents crime, in the framework of a coherent and proportionate policy: the draft Belgian law “complies perfectly with the jurisprudence of the Court”.
EFTA Court even more explicit. In the meantime, the Court for the European Free Trade Association (EFTA), which monitors respect of European laws in Switzerland, Norway, Iceland and Liechtenstein, made a decision on a similar case: the state's monopoly on betting in Norway. Its ruling justified this monopoly on grounds that “effective control by the public authorities will tend to respond to the legitimate concerns of the fight against gambling addiction more effectively than a commercial operator…It is reasonable to assume that the state can more easily control and supervise an operator it owns than private operators could with operators they owned” (EUROPE 9388 for Chris Dickson's report, with an interesting comparison between the two rulings and comments about the Swedish Svenska Spel agency).
The two Courts will therefore move in the same direction: restrictions to single market or competition rules have to be assessed by taking into consideration their objectives. If these objectives are justified, restrictions are legitimate if they are in proportion to these objectives and are non-discriminatory.
European Commission should take them into account. I believe that the European Commission would do well to take the legal authority's move in this direction into consideration, as well as the motives for the restrictions, instead of simply considering the wording in the treaty as the single evaluation criteria. (FR)