EU lawyer deals new blow to GBGA’s bid to overturn PoC tax
Advocate General backs UK government’s argument that provision of services between Gibraltar and UK not caught by EU law
The Gibraltar Betting and Gaming Association’s challenge against Great Britain’s Remote Gaming Duty was dealt a blow yesterday after a senior EU lawyer said the UK and Gibraltar should be treated as “one entity” in the freedom to provide services.
Advocate General to the Court of Justice of the European Union, Maciej Szpunar, on Thursday rejected the GBGA’s argument that the 15% Point of Consumption tax is an unlawful restriction on the supply of services to the UK.
The trade association had previously challenged the legality of the levy before the High Court of England and Wales, which subsequently referred the case to the EU Court of Justice.
In his Opinion, Szpunar claimed that while European Law does apply to Gibraltar, EU Treaties were “silent on the relationship” between the UK and the British Overseas Territory in the application of the four fundamental freedoms.
The Union’s four freedoms are the free movement of services, people, goods and capital.
“Having regard to the Court’s case law, the Advocate General notes that is it the UK and not Gibraltar that has assumed obligations towards the Member States in ratifying the Treaties,” Szpunar said in his Opinion.
“Logically, therefore, infringement proceedings with respect to Gibraltar are brought against the UK and Gibraltar cannot institute infringement proceedings itself,” he continued.
The Advocate General’s Opinion is not binding on the Court of Justice but has the role of proposing to the Court a legal solution to the cases for which they are responsible.
The Luxembourg-based court’s judgement will be given at a later date, expected approximately three months later.
However, the Opinion, which was originally expected late 2016, could also have major implications for Gibraltar’s ambition to stay in the single market post-Brexit.
Peter Howitt, the CEO of the GBGA, said: “We are naturally disappointed with the opinion of the Advocate General.
“We continue to believe that the gambling duty applied by the UK government to operators out of the jurisdiction, in circumstances where the customer may not be in the UK when they gamble or even a UK resident, is a disproportionate restriction on operators. We look forward to receiving the CJEU’s judgment on the issues.”