EGBA welcomed two judgments from the CJEU

CJEU questions Polish respect of obligation to notify gambling provisions
 
The first ruling in the joined Fortuna case (C-213/11, C-214/11, C-217/11) looked at the key question “whether the provisions of that Law may be relied upon against an individual when they were not notified to the Commission under the procedure prescribed by Directive 98/34. The ruling casts serious doubts on the respect by Polish authorities of important procedural EU rules when adopting the 2010 Gambling Act.

The CJEU confirms that: The provisions at stake “are capable of constituting ‘technical regulations’…drafts of which must be the subject of communication” (paragraph 40) in line with Directive 98/34. It is to the national judge to establish “those provisions constitute conditions which can significantly influence the nature or the marketing of the product” (paragraph 40)

The European Parliament was alerted in 2010 to the Polish Gambling Act regarding issues of compliance with EU law, including the lack of notification; consequently the Petition Committee questioned the European Commission and issued a report in 2011.   

Latvian restrictions on gambling must meet strict conditions under EU law

The second ruling regards the Latvian Garkalns case (C-470/11), questioning whether the gambling law, which allows Latvian authorities to restrict the market on the particularly broad grounds of 'substantial impairment of the interests of the State and of the residents of the administrative area concerned', is compatible with the Treaty.

This specific case gave the CJEU the opportunity to recall that: such restrictions; “must be based on objective, non-discriminatory criteria known in advance, in such a way as to circumscribe the exercise by the authorities of their discretion so that it is not used arbitrarily” (paragraph 42)

“It is also necessary for the competent authorities to base each of their decisions on reasoning which is accessible to the public, stating precisely the reasons for which, as the case may be, authorisation has been refused” (paragraph 43)

For the national courts to ensure … that legislation genuinely meets the concern to reduce opportunities for gambling and to limit activities in that domain in a consistent and systematic manner.” (paragraph 44)

“It is therefore for the national court to verify, in particular, that the State strictly supervises the activities related to betting and gaming; that the refusal of the local authorities to authorise the opening of new establishments of that type genuinely pursues the declared objective of protecting consumers; and that the criterion of ‘substantial impairment of the interests of the State and of the residents of the administrative area concerned’ is applied without discrimination.” (paragraph 47)

EGBA Secretary General Sigrid Ligné comments: “The Court has reconfirmed that Member States are required to notify draft gambling legislation. If they fail to do so, the legislation can´t be enforced against operators. Likewise, we are satisfied that the Court firmly recalls that restrictions to the market can only be justifiable subject to strict conditions.”

Ligné added: “What is worrying is that these are well known and longstanding requirements that Member States should, but many do not comply with. As recently confirmed by Commissioner Barnier, Member States’ compliance with European rules is essential. The Commission has acknowledged that in addition to the 9 pending infringement procedures, 28 complaints against 12 Member States will now be investigated. We are confident that the Commission will take appropriate legal action.”