dvocate General Szpunar’s opinion follows a ruling of the Higher Administrative Court in Hesse of 16 October suspending the granting of licenses under the German Interstate Treaty on Gambling.
The European Commission has asked similar questions to the German Länder (provinces) and must now consider opening formal infringement proceedings against the German gambling legislation.
The AG’s assessment was based on the Ince case (C-336/14) – a rejection of the licence application of an Austrian company for a German sports betting license.
The local German court asked the CJEU preliminary questions regarding the non-transparent and discriminatory licensing system that has been in place since 2012, however, on the basis of which not a single licence has been issued to date.
In his opinion the AG confirms settled CJEU case-law on the primacy of EU law and on the non-applicability of sanctions (Placanica). The AG maintains that where “a monopoly on sports betting is contrary to EU law, Article 56 TFEU precludes national criminal prosecution authorities from penalizing [operators] licensed in another Member States.”
AG Szpunar clearly states that, while the Concessions Directive 2014/23/EU does not apply to the German tender at issue, its general principles “may serve as a source of inspiration and guidance…for granting licenses and concessions.
The European Commission has already asked highly critical questions regarding the consistency and EU compliance of the German Interstate Treaty on Gambling, stating that it had clearly failed in its objectives.
Whilst the German Länder still defended the legislation as recently as early October 2015, the Land of Hesse has meanwhile rejected it in favour of the multi-licence system for all online gambling products, the prevalent regulatory model throughout the EU.
A ruling of the Higher Administrative Court in Hesse found two weeks ago that the licensing procedure is in violation of German constitutional law, effectively rendering the German legislation obsolete.
European Gaming and Betting Association general secretary Maarten Haijer said Thursday: “The recent developments confirm what has been all too obvious for too long: the German online gambling legislation is in conflict with EU law. It is disappointing that Germany considers EU obligations inapplicable to its legislation. Only decisive action is left to push Germany to change its ways. The Commission must now prove it is prepared to take legal action, irrespective of the size of the Member State.”