The legal view: The evolution of CJEU case law on gambling

In each issue of EGBA News, Professor Dr. Dr. h.c. Claus-Dieter Ehlermann provides his opinion on legal questions at the heart of the online gambling debate.

professor-dr-dr-ehlermann To date, the Court has rendered thirty judgments concerning the application of the Union’s fundamental freedoms to gambling, eleven of which have been delivered since the last comprehensive overview of gambling- related case law in a previous edition of the EGBA News1 . The Court has since reaffirmed its jurisprudence and refined the application of three substantive principles.

Firstly, the most firmly established principle relating to gambling is the overarching consistency requirement, which the Court has deduced from the general principle of proportionality. In the Berlington Hungary judgment2 , the Court recalled that the definition of the overarching consistency requirement is that a Member State has to regulate all types of games in its territory in a consistent and systematic manner. In this context, and as reaffirmed by subsequent case law, the Member State bears the evidentiary burden3 . A controlled expansion of gambling is permissible only if it is demonstrated by strong evidence that a specific criminal and addiction problem actually exists in the Member State concerned, and on the further condition that this expansion is suitable to solve the problem by channeling gambling into a controlled space.

The Court’s overarching consistency requirement is channel-neutral, i.e. it takes into account both traditional landbased and online gambling, unless in the particular case at hand the online channel is associated with higher risks with regard to the invoked objectives than the traditional channel. According to older case law4 , games of chance accessible via the internet had been considered as involving more substantial risks of fraud compared with the traditional markets for such games. However, in the Zeturf judgement5 , the Court provides a deliberate reversal of those initial findings by clearly stating that the online channel does not necessarily involve a higher level of risk. 

Furthermore, in the Admiral Casinos judgement6 , the Court made clear that the application of the overarching consistency test by the referring court must be dynamic rather than static in the sense that the test applies not only to the point in time when the restriction is introduced but to the entire time period for which the restriction is in force.

The Court interprets the consistency assessment as a very comprehensive “hypocrisy test”. It is clear from the latest judgements7 that the central and decisive criterion underlying the overarching consistency test that the Court applies is the genuineness of the Member State’s submission with regard to the objectives that its legislation pursues.

Secondly, based on the overarching consistency requirement, the Court has formulated specific rules for multilicensed systems. The requirement that the award of a license must ensure transparency and equality has been fully endorsed by successive judgements. With regard to the application of the Court’s jurisprudence on Article 56 TFEU to the gambling sector, the Court clarified in the recent Biasci case8 that while the principle of mutual recognition of licenses among Member States does not apply, the prohibition of the duplication of identical substantive requirements in the licensing procedure is necessary. Furthermore, the Court held in the Berlington Hungary judgment that the fundamental principles of legal certainty and the protection of legitimate expectations requires the existence of transitional periods for substantial changes in licenses9 .

Thirdly, the Court has also been consistently applying a number of requirements specific to gambling monopoly systems established on the basis of the overarching consistency requirement. The Court reiterated its previous case law by making clear that gambling monopolies are admissible and compatible with EU law only if they meet very strict conditions10.

The main conclusion that can be drawn from the continuous development of jurisprudence is that the Court leaves less and less room for maneuver to Member States when they adopt legislation to regulate online gambling.

1 EGBA news, Issue 9: Online safety and ethics.
2 Cases Berlington Hungary (C-98/14) §64 but also Ince (C-336/14) §55, Digibet and Albers (C-153/13) §24, Pfleger (C-390/12) §45, Stanleybet & Others (C-186/11 and C-209/11) §30 and HIT and HIT LARIX (C-176/11) §31.
3 Case Berlington Hungary (C-98/14) §65.
4 Cases Liga Portuguesa (C-42/07) §70, and Carmen Media (C-46/08) §102.
5 Case Zeturf (C-212/08) §75-77.
6 Case Admiral Casinos (C-464/15) §36.
7 Cases Laezza (C-375/14) §36, Biasci (C-660/11 and C-8/12) §25, Garkalns (C-470/11) §37, HIT and HIT LARIX (C-176/11) §31-36, and Pfleger (C-390/12) §54-55.
8 Case Biasci (C-660/11 and C-8/12).
9 Case Berlington Hungary (C-98/14), §77-87.
10 See for example Case Winner Wetten (C-409/06), §69.
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