The ECJ opinion - good news for the brave
Today's European Court of Justice opinion regarding Betfair and Ladbrokes' cases against Dutch monopoly De Lotto didn't go the way they'd like, but is good news for any operator willing to try seizing De Lotto's throne, says Julian Harris of gaming specialist law firm Harris Hagan.
THE QUESTION WHICH Advocate General (AG) Bot posed today is an interesting one. If his interpretation is followed, it could spell the end for national monopolies in betting and gaming.
Bot says that Article 49 must be interpreted to mean that “the principle of equal treatment and the transparency requirement that flows from it, also applies to the gambling sector in the context of a single licence regime”. In other words, even if there is to be only one licence, operators must at least be allowed to compete for it.
Although some gambling operators have been successful in the ECJ in claiming that national legislation infringed Article 49, these have been in cases where the court found that derogation from Article 49 was not justified on public interest grounds. Where the national government can demonstrate that it has legitimate public interest grounds for restrictions or bans, the ECJ has ruled against operators.
In the Santa Casa case, for example, the ECJ held that member states are free to set their own policy for betting and gaming, but restrictions imposed must meet the test of proportionality. In other words, a restriction must be proportionate to the reason for it.
The Portuguese Government claimed that the exclusive rights given to Santa Casa were a means of protecting the public from the risk of fraud or crime. However, in that case it was material that Bwin sponsored the football league on which it was also accepting bets, causing concerns about corruption. This enabled the ECJ to rule that the measures were proportionate and justified in order to combat fraud and crime.
AG Bot’s interpretation, if followed by the court, suggests that the Lotto’s monopoly may come to an end, given that there has never been any opportunity for any other EU operator to compete, or even to tender, for a licence.
A complete lack of even the ability to try and compete cannot satisfy the need for ‘equal treatment,’ and therefore certainly fails AG Bot’s test. This is good news for operators who could rival De Lotto.
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