CJEU: Member States must compare consumer protection requirements

2012-07-13

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(Belgium).- EGBA welcomes the important clarification from the Court of Justice of the European Union (CJEU) that a Member State cannot prohibit gambling advertising from another Member State on the mere fact that the protection guaranteed in that Member State is not identical to the domestic rules.

On 12 July 2012, the CJEU delivered its ruling in the HIT and HIT Larix case (C-176/11) regarding the rejection by Austrian authorities of an advertising permit requested by a casino operated in Slovenia. The ruling provides a number of important clarifications on how Member States must address cross border gambling advertising:

When granting advertising permits ´the levels of protection for gamblers that exist in the various legal systems concerned must first be compared´ (paragraph 28).

A Member State can require that ‘the applicable legislation ensures protection against the risks of gaming that is in essence of a level equivalent to that which it guarantees itself´ (paragraph 31). But, it cannot require ´the rules in the other Member State to be identical’, which would be disproportionate (paragraph 32).

In any case, Member States ‘cannot impose rules not directly related to protection against the risks of gaming’ (paragraph 32). If Member States impose rules that protect incumbents, such provisions cannot justify restrictions of the freedom to provide services as decided in the recent Costa and Cifone ruling (C-72/10).

Today's ruling once again proves that harmonization is urgently needed. EGBA members adhere to the EGBA Standards (link) and the Responsible Remote Gambling Measures set out by the European Committee for Standardization (link) most of which surpass the requirements set out in national gambling legislations. The actual standards of player protection self-imposed by operators are currently not being taken into account.

EGBA Secretary General Sigrid Ligné comments: “We welcome the CJEU’s ruling as it confirms that Member States cannot regulate the gambling market in isolation but need to take into account protection guaranteed by other Member States.”

Ligné added: “Today's ruling once again shows that consumer protection rules for gambling are fragmented in the EU, which might be good for lawyers, but it´s certainly not in the interest of consumers. It highlights the urgency of Commissioner Barnier´s proposal to develop a common European base of principles and measures of protection, so that all citizens are protected, wherever they are and whichever legal site they are connecting to.”