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EEA CASE-LAW ON GAMES OF CHANCE – Application of State aid rules

Online gambling in EU

The European Commission opened, under the EU state aid rules (Articles 107 and 108 TFEU), two formal investigations in the field of gambling. One formal final decision has been adopted whilst the other one is pending:

Denmark: here the Commission examined whether lower taxes for online casinos in comparison to traditional casinos in Denmark could procure an anticompetitive advantage for such online casinos. Denmark had decided to reform the national legislation on gambling and betting services and to replace the monopoly regime with a regulated and partially liberalised one. Under the notification provided to the Commission in July 2010, online providers of casino games and gaming machines would be subject to a flat tax of 20 % on the GGR compared with up to 75 % for landbased casinos and gaming halls. The Commission submits that the measure constituted State aid as the differential treatment entails a competitive advantage for online casinos as compared to their land-based “competitors”. However, the Commission concluded that the measure is compatible with the internal market under Article 107(3)(c) TFEU because the overall balance of implementing the measure was considered to be positive. If the tax rate for online gambling had been set at the same rate or at a similar level as the rate for land-based gambling operators this would have led to a situation where the industry and the players would not have responded to the possibility of legally providing online gambling services on the Danish market. This would have defeated the objectives of general interest pursued by the Gaming Act (keep gambling at a moderate level, protect gamblers, ensure public order and prevent gambling being used for criminal purposes). (Commission Decision 2012/140/EU of 20 September 2011 on the measure C 35/10 (ex N 302/10) which Denmark is planning to implement in the form of duties for online gambling in the Danish Gambling Duties Act, OJ L 68/3 of 7.5.2012. Two appeals to the General Court have been submitted against this decision: T-601/11 submitted by the DAB (Danish Amusement Machine Association) and T-615/11 submitted by the Royal Casino Aarhus. To be noted, in this context, that the Commission has received other complaints against Member States’ regulations imposing different taxation on online and off-line gambling services.)

France: here the Commission has opened the formal investigation procedure to examine whether a parafiscal tax (levy) to finance horse racing companies is in line with competition rules because of its doubts regarding the qualification of the mission conferred on horseracing companies as a service of general economic interest.(State aid C 34/10 (ex N 140/10) – Levies to finance the public service mission of improvement of the equine species and the promotion of horse breeding, training in the horse racing and breeding sector and rural development. See the invitation to summit comments ex Article 108 (2) TFEU in OJ C 10/4 of 14.1.2011.)  The procedure is still to be finalised with a formal decision.

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