General principle of prohibition
A number of Member States proscriptively consider that gambling is prohibited on their territories, except in so far as exceptions are provided by law (this is true of Austria, Belgium, Cyprus, Denmark, Finland, France, Germany, Greece, Ireland, Luxembourg, the Netherlands and Slovakia). This restrictive policy aims to safeguard the interests of consumers and to prevent fraud, illegal gaming and gambling addiction (Austria, Belgium, Denmark, France, Germany, Greece, Luxembourg, the Netherlands and Slovakia). It also aims at ensuring that the profits derived from the gambling market are devoted to the public’s general interests (Belgium, Denmark, France, Greece, Germany).
In certain Member States (the Czech Republic, Denmark, Germany, Hungary, the Netherlands, Slovakia and Sweden), it is unlawful to facilitate participation in foreign games of chance. It may similarly be unlawful to deliberately participate in an illegal game of chance offered by a foreign operator not licensed by the competent national authority of the Member State where the participant resides (Austria, Germany, the Netherlands).
Often, on-line gaming is also prohibited, at least in so far as no national gaming licenses can be issued for on-line gaming (in Cyprus, Greece, Portugal and at present the Netherlands).
Sometimes, advertising of casino gaming services and other forms of gambling is severely restricted, for example in Belgium (where regional legislation and self-regulatory norms limit or condition the advertisement of certain types of games of chance), Estonia, Lithuania, the Netherlands (where strict self-regulatory norms limit and condition the advertisement of certain types of games of chance), Poland and the United Kingdom (Northern Ireland).
Most Member States require every operator of any form of gambling on their territories to obtain a licence within the jurisdiction (Austria, Belgium, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Slovenia, Spain and the United Kingdom). In general, the policy of granting licenses is restrictive and potential licensees have to comply with a series of strict requirements.
Moreover, gaming licenses can only be issued by national or regional authorities; whether or not the operator disposes of a foreign gaming licence or complies with foreign gaming regulations is irrelevant (Austria, Belgium, Cyprus, the Czech Republic, Denmark, Estonia, France, Finland, Germany, Latvia, Lithuania, Luxembourg, Poland, Portugal, Slovakia, Slovenia, Spain, the Netherlands and Sweden).
In a majority of Member States, there are specific requirements as to the type of legal entity entitled to run the gambling activity (this is true in Austria, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Lithuania, Malta, Poland, Spain, Slovakia and Sweden). In Finland, licences are only issued to non-profit national companies.
Often, a licence can only be issued to a legal entity with registered offices on the territory of the State where the gambling business is operated (Austria, the Czech Republic, Estonia, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia).
Several Member States restrict the accumulation of licences by individual licensees. In Belgium, for example, it is not permissible to hold a type E licence (needed for the sale, rental, maintenance etc. of gambling equipment) at the same time as one or more of the other types of licences (A, B, C, D). In Finland, it is not possible for an operator to hold any two or more types of licence at the same time. Dutch gaming licenses for certain types of games of chance (i.e. State Lottery or casino gaming) are issued on a permanent basis.
Since only a single gaming licence can be issued for these types of games (cf. infra, n° 3.2.2 and 3.2.3), such legislation results in a barrier which completely hinders other providers (foreign or domestic) from accessing the gambling market for these types of games of chance.
In most Member States, the number of operators entitled to run a gambling business is limited.
There is thus a numerus clausus of casinos and gambling halls in the following Member States: Austria (where there is also a numerus clausus in respect of lottery service providers) Belgium, Germany, Portugal (where there is also a numerus clausus for bingo halls), Spain and Slovenia. The Netherlands, Sweden and the United Kingdom (Great Britain) maintain a numerus clausus for casinos, but not for gambling halls.
Sometimes, only a single operator is licensed, in particular for casinos (Austria, the Netherlands and Sweden), horse racing (Cyprus, Greece and the Netherlands), and sports betting (France, Greece and the Netherlands), creating in certain cases a monopolistic position from the legal standpoint. Similarly, a draft law containing temporary provisions on games of chance offered via the Internet is intended to exclusively licence the current Dutch casino gaming licensee (Holland Casino) to provide on-line gaming in the Netherlands.
Some European jurisdictions have set up a State monopoly for games of chance (Austria, Denmark, Finland, Germany (within the scope of the Länder legislation; some of the Länder have imposed express monopolies, while others attribute de facto monopoly rights to Stateheld entities), Estonia, Greece, Hungary, Slovakia and Sweden). In others, individual operators enjoy a monopolistic position, as is the case in particular of national lottery operators (Belgium, Cyprus, France, Ireland, Luxembourg, Malta, Portugal and the United Kingdom).
It must also be noted that in respect of particular sectors (e.g. horse race betting off the tracks), certain States have set up a single national operator, which appears to have a monopolistic position. This single operator is in fact a type of consortium that coordinates the betting business of a very important number of local operators on the tracks. In this type of closed market, the real effect of the so-called “legal monopoly” is to exclude commercial betting operators, in particular those based in other Member States.