It’s unlikely we’ll be seeing the The European Commission (“EC”) pursuing any infringement proceedings against Member States in relation to protectionist national online gambling laws any time soon.
Earlier this month, the EC issued a statement saying that it will close all currently open cases, and follow a new strategic directive when it comes to future online gambling infringements by Member States – pretty much not get involved.
A couple of excerpts from the EC press release on the matter make the position clear.
“The Commission has today decided to close its infringement procedures in the area of online gambling and the treatment of relevant complaints against a number of Member States.”
“…it is not a priority for the Commission to use its infringement powers to promote an EU Single Market in the area of online gambling services.”
No doubt the EU has bigger issues on its plate than the plight of online gambling operators feeling they are being unfairly excluded from certain European markets. Brexit and the long term viability of the union perhaps probably top of the priority list.
Whatever the reason, the EC appear to be walking away from I-gaming oversight. Operators, and their representative groups will be understandably concerned by the development. The RGA has already responded with a statement expressing disappointment at the EC’s decision, saying among other things…
“By taking this sweeping action to drop all of those cases the European Commission has ignored the need for more enforcement effort in a field that is inherently of a cross-border nature and cannot be resolved solely at national level. More fundamentally, in doing so the European Commission has blatantly abandoned its role as a Guardian of the Treaty and this must have wider ramifications for the proper working of the Internal Market”
It does now beg the question, what avenue will aggrieved operators have in the future?
The EC suggests complaints can be adequately handled by national courts. But when the issue at hand is protectionism at a national level, leaving adjudication to national courts feels a little like leaving Genghis Khan in charge of the virgins.
While EU law doesn’t allow Member States to restrict gambling services simply to protect local operators, restrictions are permitted where necessary to protect public interest; something the EC found it necessary to mention in their 7 December release interestingly enough.
With future cases handled at national level, we may well see the notion of ‘public interest’ expand a little. We can probably also expect new online gambling laws (or amendments to existing laws) to err a little more on the side of protecting national interests now that the threat of EC involvement has been removed.