According to the European Union’s Court of Justice Advocate General Mazák, a Member State which reserves the operation of casinos exclusively to companies which have their seat in its territory is acting in a way which is incompatible with European Union Law. In his Opinion, delivered on Tuesday, Advocate General Ján Mazák considers, first, that the Austrian legislation which reserves the operation of games of chance in gaming establishments exclusively to limited companies which have their seat in Austrian territory is incompatible with freedom of establishment.
Secondly, Mr Mazák considers that freedom to provide services precludes the Austrian provision under which all licences to operate games of chance and gaming establishments are granted on the basis of rules which exclude from tendering procedures candidates from the Community who do not possess Austrian nationality. The Advocate General considers that such a measure constitutes a restriction on freedom to provide services since the national legislation does not permit participation in those procedures on the basis of a secondary establishment in Austria.
Furthermore, from his point of view, that restriction is discriminatory and cannot be justified in the present case on grounds of public policy, public security or public health in the absence of a genuine and sufficiently serious threat affecting a fundamental interest of society.
Thirdly, the Advocate General analyses the question whether the Austrian State monopoly on casinos is incompatible with the EC Treaty on the ground that the national policy of restricting games of chance lacks consistency inasmuch as the holders of licences in respect of other forms of gaming which are also subject to a monopoly (such as lotteries) advertise their product.
On the subject of online gaming, according to Advocate General Bot, Swedish legislation prohibiting the promotion of gambling over the internet by companies established in other Member States complies with Community law. However, Community law precludes provisions of national law which penalise the promotion of lotteries organised in Sweden without a licence differently from lotteries organised outside Sweden.
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About six years ago two newspaper editors published on the sports pages of their newspapers, aimed at the Swedish public, advertisements for lotteries offered on the internet sites of the companies Expekt, Unibet, Ladbrokes and Centrebet, established in Malta and the United Kingdom. On the basis of those facts, considered to infringe the Swedish law on betting, they were each sentenced to 50 daily fines of approximately €100.
In that case whereas penalties of a fine and imprisonment for up to six months are laid down for persons who advertise gaming organised abroad, those who advertise gaming organised in Sweden without a licence do not incur equivalent criminal penalties, but only administrative penalties. Accordingly, the Advocate General considers that Community law precludes national legislation under which anyone who promotes participation in internet gaming organised by a company established in another Member State is liable to criminal penalties, whereas anyone who promotes participation in such gaming organised within the national territory without a licence does not incur such penalties.
The Advocates General Opinions are not binding on the Court of Justice. It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The Judges of the Court are now beginning their deliberations in these cases and judgment will be given at a later date. (E-02.25.10)
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