Study of gambling services in the internal market of the European Union – Executive summary and table of contents

Abstract

The purpose of the study is to evaluate how the differing laws regulating on-line and off-line gambling services impact upon the smooth functioning of the Internal Market for these and associated services and thus could restrict the economic and employment growth associated with such services. The EU gambling markets in the areas of charity, media and sales promotional gambling are not properly documented at present. It appears that the vacuum exists for a combination of reasons. The essential thrust of many responses from stakeholders in the media and sales promotional sectors has been to strongly argue that their relevant activities technically do not constitute gambling. Conclusions: The ECJ jurisprudence requires an objective analysis of whether the restrictions imposed by a Member State can be supported by an admissible justification, these being maintenance of the public order, prevention of fraud and other criminal activities, limitation of the exploitation of the human passion for gambling, prevention of the damaging individual and social consequences of incitement to expenses and more generally consumer protection, maintenance of the social order, protection of moral and cultural aspects, prevention of gambling from being a source of private profit. The financing of social activities cannot be the fundamental justification but must constitute only an incidental beneficial consequence. Fiscal policy considerations (avoidance of a diminution or reduction of tax revenue) is as such no valid justification for national legislative measures. The ECJ jurisprudence requires an especially critical assessment of the laws of Member States that cite justifications recognised on the EC level. The ECJ recently indicated that the reasoning on which a justification is based must enclose statistical or other evidence which lead to the conclusion that the justification ground is really existent. As regards proportionality it must be examined whether the national restrictions imposed go beyond what is necessary and whether they are not disproportionate in the light of the ECJ case-law. The justifications invoked by a Member State must be accompanied by an analysis of the appropriateness and proportionality of the restrictive measure adopted by that State. The ECJ has stated that, in principle, the level of protection a Member State wishes to provide does in itself not affect the proportionality of national provisions, and as a result that the system of protection can differ from that adopted by another Member State. It remains however necessary to determine whether the imposition of restrictions goes beyond what is necessary and appropriate in the particular case especially where the supplier of the service is subject to a control system in his Member State of establishment.

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