AG Bot's opinion: bad news for most of you
Operators that have hoped to use EU law to liberalise markets will be discouraged by today's Advocate General opinion, says April Carr, a regulatory lawyer at law firm Olswang - the only good news is for lottery providers.
GAMBLING OPERATORS hoping they could rely on EU laws to gain access to national gambling markets throughout the EU will be disappointed by an Advocate General’s Opinion published today.
The Opinion considers questions referred to the European Court of Justice (ECJ) by two Dutch national courts in cases brought by Ladbrokes and Betfair. In both cases, the gambling operators broadly question the compatibility of the Dutch licensing system with EU laws which protect the rights of EU-based businesses to provide their services in other EU Member States.
Advocate General Bot concluded that EU Member States can legitimately maintain monopoly gambling systems if objectively justified e.g. to prevent fraud or reduce gambling addiction.
Furthermore, monopoly gambling operators such as De Lotto in the Netherlands can create new games and advertise these services if this is intended to protect citizens from accessing unregulated sites. Following the ECJ’s Bwin/Liga judgment, he concluded that Member States are not obliged to allow operators access to their national gambling markets just because they are licensed in another Member State.
The only potentially positive part of this Opinion, at least, from the perspective of operators keen to provide services to Dutch citizens, is in relation to comments on the tender process for exclusive gambling licences.
The Advocate General considered that Member States should not extend an exclusive gambling licence without first conducting a competitive tender process unless such an omission is justified. If the ECJ agrees with this approach, the Dutch authorities may need to conduct an open and transparent tender process potentially allowing operators outside of the Netherlands to bid for licences.
The ECJ’s judgment will be published next year. Whether the ECJ follows the Advocate General’s Opinion remains to be seen – but unfortunately for Betfair and Ladbrokes, it does so in most cases.
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