» » » » » » Gambling Restrictions upon Arts. 43 and 49 EC Treaty in Austria

Gambling Restrictions upon Arts. 43 and 49 EC Treaty in Austria

Flag_of_Austria.svg

Justification

  • National measure
  • Compatibility with EC law, in particular with the principle of proportionality

Public order, money laundering crime

National measure

§ 3 GSpG (Glücksspielgesetz, Law on Gambling): State gaming monopoly
§ 14 ss 2 no. 1 GSpG: Domicile of lottery operator in Austria
§ 14 ss 3 no. 1 GSpG: Limited period of lottery licence of 15 years
§ 14 ss 5 GSpG: Limited number of one lottery licence
§ 15 GSpG: Prohibition of establishing lottery branches abroad and qualified participation in foreign companies, if a reduction in revenue from the licence fee is to be expected
§ 16 ss 14 GSpG: For conclusion of agreements for Lotto, Toto and Additional Games tobacco shops run by handicapped people have priority
§ 21 ss 2 no. 1 GSpG: Domicile of a Casino operator in Austria
§ 21 ss 4 GSpG: Limited number of twelve Casino licences
§ 22 no. 1 GSpG: Limited period of Casino license of 15 years
§ 24 GSpG: Prohibition of establishing casino branches abroad and qualified participation in foreign companies, if a reduction in revenue from the licence fee is to be expected
§ 36 GSpG: Domicile of operator of specific games in Austria
§ 56 GSpG: Prohibition of participation in foreign games
§ 56a GSpG: Closure of the business by authority if operation of games of chance contravene the provisions of the law
§ 168 Penal Code: Prohibition of organising games of chance
§ 7 ss 3 and 6 Events Act (Carinthia): Limited number of gambling machines to eight per location, Limited period of license to three years
§ 4 Events Act (Vienna): A managing director in Austria, if the operator of a gambling machine is not domiciled in Austria.
§ 15 ss 2 and 2b Events Act (Vienna): The licence is granted for maximum two gambling machines per location, for more than three gambling machines specific structural conditions are foreseen.
§ 15 ss 5 Events Act (Vienna): The licence period for gambling machines is limited to two or ten years.
§ 9 ss 4 Events Act (Styria): The licence for operating a gambling machine is granted for three years at maximum.
§ 7 ss 2 Events Act (Lower Austria): The licence for gambling machines can be granted for determined periods, but at maximum for ten years.
§ 3 Gambling Machines Act (Lower Austria): Gambling Machines operated with money and cash-prizes are prohibited.
§ 5 Gambling Machines Act (Lower Austria): The natural person applying for a license has to be domiciled in Austria.
§ 4 ss 3 Gambling Machines Act (Lower Austria): A license is limited to a period of two years.
§ 6 ss 1 Gambling Machines Act (Lower Austria): Only three gambling machines are allowed to be installed in one location outside of a specifically labelled gambling hall.
§ 2 ss 4 and 5 Gambling Machines Act (Vorarlberg): The licence is granted for three years at maximum and for only three gambling machines per location. The authority has also to guarantee by adequate measures and conditions that the public interests are not violated.
§ 3 Gambling Machines Act (Vorarlberg): Gambling Machines operated with money and cash-prizes are prohibited.
§ 4 ss 4 Gambling Machines Act (Upper Austria): The licence for gambling machines has to be allocated for three years at maximum.
§ 3 ss 1 Gambling Machines Act (Upper Austria): Gambling Machines operated with money and cash-prizes are prohibited.
§ 15 ss 1 nr. 5 Events Act (Burgenland): Gambling Machines operated with money and cash-prizes are prohibited.
§ 21 ss 1 lit. b) Events Act (Salzburg): Gambling Machines operated with money and cash-prizes are prohibited.
§ 19 ss 1 lit. b) Events Act (Tyrol): Gambling Machines operated with money and cash-prizes are prohibited.

Compatibility with EC law, in particular with the principle of proportionality

Decision of the Constitutional Court (VfGH, 30.9.1989, Slg. 12.165): Limited number of Casino licenses

The Constitutional Court is of the opinion that the requirement of a licence to operation a casino does not violate the requirements of objectivity and proportionality with respect to the freedom of trade. Both the nature and the possible effects of the operation of a Casino mean that this activity cannot be equated with other trade activities. The specific requirements concerning the reliability and economic power of a Casino operator – as well as the necessity of government supervision of this activity – justify such a system, including the limited number of the gaming licences.

Decision of the Administrative Court (VwGH, 21.12.1998, Gz. 97/17/0175): Limited number of Lottery licenses The administrative Court is of the opinion that legislative norms concerning the limited number of lottery licences could perhaps discriminate nationals of other Member States but the applicant for a licence in this case was a company domiciled in Austria. The Court thus held that the legal situation of Community law is clear and therefore no request has been made to the ECJ for a preliminary opinion concerning the regulation of granting a lottery licence because no doubts could have been seen as regards the compatibility with EC Law while treating this particular case by the Court.

Consumer protection

National measure

§ 28 (Law on Unfair Competition, UWG):
It is prohibited to sell goods or services in such a manner that the delivery of the good or the performance of the service depend on the result of a lottery or another coincidence.

§ 29 UWG:
Encouraging activities according to § 28 UWG is punished by a fine up to 2.900 Euro. All restrictive measures of the Law on Gambling and the Acts of the State law mentioned above are among other grounds also justified by consumer protection aspects

Compatibility with EC law, in particular with the principle of proportionality

Decision of the Highest Court, 14. 3. 2005, 4 Ob 255/04k: German license necessary for operator already licensed in Austria if he advertises betting services via Internet. The Austrian Court ruled that, based on Art. 48 Austrian International Private Law, German law is applicable in the existing case and according to German law a licence (from German authorities) is required in order to advertise betting services. The Austrian Court did not examine the Austrian licence and its efficiency.

The German penal law hindering foreign gambling providers from other EU-MS to advertise their services via Internet although they are licensed in their country of origin, namely in another EU-MS. Normally it should be examined very carefully the existing Austrian license for advertising and providing betting services via Internet before deciding about the punishability in Germany. Especially because of the fact that German gambling monopoly companies will be considered to having taken into account the consumer protection aspect, but foreign providers licensed abroad will risk not to be considered to do so.

Decision of the Constitutional Court (VfGH, 30.9.1989, Slg. 12.165): Limited number of Casino licenses Decision of the Administrative Court (VwGH, 21.12.1998, Gz. 97/17/0175): Limited number of Lottery licenses Comments see above referring to Case Slg. 12.165

Social order, moral and cultural standardsâ

National measure

All restrictive measures of the Law on Gambling and the Acts of the State law mentioned above are among other grounds also justified by social order aspects

Compatibility with EC law, in particular with the principle of proportionality

Decision of the Administrative Court (VwGH, 21.12.1998, Gz. 97/17/0175): Limited number of Lottery licenses

Comments see above referring to Case Gz. 97/17/0175.

Other grounds: Media pluralism

National measure

Decision of the Highest Court, 23.3.1999, 4Ob249/98s: During that procedure the ECJ rendered its decision in C- 368/95 (Familiapress). The prohibition of premiums in the form of prize games to periodicals (§ 9a ss 2 item 8 UWG) was examined.

Compatibility with EC law, in particular with the principle of proportionality

Although the ECJ stated that this barrier to a free internal market can be justified by the ensuring of media pluralism if the mentioned prohibition is proportionate, the Austrian Court did not examine the measure in the light of proportionality in depth. The Court and the parliamentary materials to the mentioned article in the UWG only refer to media pluralism as such to justify the prohibition.

(See also decisions in the same sense Highest Court OGH, 5.4.2005, 4Ob31/05w, and Constitutional Court VfGH, 11.3.1994, Slg. 13725)

Fiscal policy objectives

National measure

All restrictive measures of the Law on Gambling mentioned above are among other grounds also justified by fiscal political aspects

Compatibility with EC law, in particular with the principle of proportionality

Decision of the Constitutional Court, 23.2.2004, B 615/02- 19, B616/02-19: Limited number of Lottery licenses Decision of the Constitutional Court, 28.2.2005, B 1244/04- 3: Limited number of Casino licenses Decision of the Administrative Court (VwGH, 21.12.1998, Gz. 97/17/0175): Limited number of Lottery licenses

Maximising the income of the state budget by restrictions to the freedom to provide services or the freedom of establishment is not valid as justification. The ECJ made clear that the right of fundamental freedoms in the EU market is overriding fiscal political aspects of a Member State. (Gambelli, para. 61)

Leave a Reply

Your e-mail address will not be published. Required fields are marked *