Welcome to le party, pal
The legal tussle that 888, Bwin, Sportingbet and Unibet are in with a group of French casinos in Paris at the moment suggests that the 'remote supply' approach to legal uncertainty taken by many operators is under threat too, says Stephen Kettely, a partner in the gaming law team at law firm Berwin Leighton Paisner...
WHILST some operators have always taken a view on the ‘greyness’ of the regulatory landscape on the basis that they do not have any connection with an offended jurisdiction, others – for reasons of reputation, quirks of ownership or obligations to regulators and investors – have sought a stronger rationale for their activities, and found comfort in the principle of the legality of remote supply.
This principle states that, provided that I am acting legally and am licensed to conduct my activity from where I’m located, then the laws and regulations of the customer’s jurisdiction will not apply; unless this argument is harmed through assertions of some effect that goes beyond territory or laws criminalising the activity of player (which could lead to accusations of aiding and abetting an offence that took place ‘on the ground’).
However, the continued offensive by legislation and case law at both European and at national level would suggest that this argument is risky too.
Understandably, operators such as Bwin, Sportingbet and Unibet, all currently embroiled in a fight in a Paris court with various land-based French gaming interests, are not giving up on the argument – and nor should they.
Whilst some saw the Santa Casa ruling as the monopolies’ first battle victory in a protracted war with the private sector, others advised caution, as Court decisions often are decided on their facts. The facts in Santa Casa may be different to those the ECJ will hear when Holland, Austria, Greece and others have their days under the spotlight.
The defences being made in Paris this week by Bwin, Unibet and Sportingbet are each based on the continued belief that the EU Treaty enshrines the basic freedom of movement of service and that unjustified threats to that freedom will – or at least should – ultimately fail.
Whilst this is interesting, what is more remarkable is the industry conspiracy theorists’ constant concern that the various happenings in France, both in the courts and in the rumours about what the final legislation will look like, are designed to give the incumbents a head start when the market opens up.
If true, however, any unfair advantage will probably be begrudgingly accepted by those who want to join the party in France either way.