Today on-line gambling services are widely offered and used in the EU and the economic significance of the sector is growing. The on-line offer is the fastest growing segment of the gambling market, accounting for 7.5% of the annual revenues of the overall gambling market in 2008, and it is expected to double in size by 2013. At the same time, the regulatory framework applicable to gambling differs significantly across Member States. While some Member States restrict or even ban the offer of certain games of chance, others have more open markets. Many Member States have also recently reviewed their gambling legislation or are in the process of doing so in view of the growth of on-line gambling services.
The advent of the internet and the rapid growth of on-line gambling opportunities combined with the considerably differing national regulations have resulted not only in an increasing legal offer of gambling services in certain Member States but also in the development of a significant unauthorised cross-border market. This consists of both a black market (with unlicensed clandestine betting and gaming, including from third countries) and a so-called “grey” market (operators duly licensed in one or more Member States promoting and/or providing gambling services to citizens in other Member States without having obtained a specific authorisation in those countries). This unauthorised cross-border market remains accessible to consumers, due either to de facto tolerance or lack of effective enforcement, and adds to the legal national offers that are available to consumers depending on the legal situation prevailing in the Member States where they are located.
Since July 2008, Member States have, within a Council Working Party on Establishment and Services, discussed matters of common interest in relation to the gambling sector.
Consecutive Presidencies have asked for the European Commission’s active participation and detailed consultations. The French Presidency suggested in 20086 that the Commission , in due course, should consider the possibility to make proposals to identify ways forward. The Swedish Presidency encouraged the European Commission to engage in the work on this topic to address gambling responsibility7 and the Spanish Presidency invited the Commission to initiate consultations with the stakeholders and the Member States in view of EU actions in this field8. Most recently, under the Belgian Presidency, all Member States agreed on Council conclusions that welcome a broad consultation by the European Commission on online gambling in the internal market which will allow for an in-depth discussion on issues raised by on-line gambling services in particular. These conclusions, adopted on 10 December 20109 also addressed cooperation between regulatory authorities and noted that the Internal Market Information system could become a useful tool in order to facilitate this administrative cooperation.
Under EU law, as confirmed by the CJEU, gambling services fall under Article 56 TFEU and are thus covered by the rules on the provision of services. According to these rules, operators authorised in one Member State may provide their services to consumers in other Member States, unless those impose restrictions justified by overriding reasons in the public interest, such as consumer protection or the general need to preserve public order. The Member States’ overall policy vis-à-vis on-line gambling must be proportionate and be applied in a consistent and systematic manner. Moreover, such restrictions must also be consistent with EU secondary legislation: although gambling services are not regulated by sector-specific regulation at EU level and excluded from horizontal acts such as the Services Directive (2006/123/EC) or the E-commerce Directive (2000/31/EC), they are subject to a number of rules in EU secondary legislation.
In view of recent trends, restrictions imposed to online gambling by each Member State can be expected to continue to vary considerably, with the effect that what is, or will become, considered a legal offer in one Member State will continue to be deemed “unlawful” (in that it has not been implicitly or explicitly authorised) in the territory of another Member State. It follows that, subject to the legal conditions set out above, effective enforcement will be essential to ensure the achievement of the objectives of a Member State’s gambling policy.
6 Presidency progress report, presented on 1 December 2008 (doc ref 16022/08).
7 Presidency progress report, presented on 3 December 2009, (doc ref 16571/09).
8 Presidency progress report, presented on 25 May 2010, (doc ref 9495/10).
9 Conclusions on the framework for gambling and betting in the EU Member States, adopted at the 3057th Competitiveness Council meeting, Brussels, 10 December 2010. Council document 16884/10.
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