By Philippe Vlaemminck & Sandrine Mathieu

Gambling

WHAT?

In a press release dated 7 December 2017, the European Commission announced its decision to close all infringement procedures and the treatment of complaints in the area of gambling. Concretely, this implies that Member States currently concerned with an infringement procedure will no longer be subject to the Commission’s review.

WHY?

This decision appears to be in line with the political priorities set out by the Juncker Commission from the very beginning of its mandate. Such political approach has been transposed to the Commission’s handling of infringement cases, meaning that the Commission prioritises cases in a strategic manner by “carefully weighing the various public and private interests involved”. In a Communication published in January 2017 (“EU law: Better results through better application”, OJ C 18, 19 January 2017, p. 10-20), the Commission considers that national mechanisms may be more adequate to deal with certain categories of cases, especially those of “incorrect application not raising issues of wider principle, where there is insufficient evidence of a general practice, of a problem of compliance of national legislation with EU law or of a systematic failure to comply with EU law”.

This is no surprise as the Commission has previously used its discretionary power in the area of online gambling to close a case in the area of online gambling in which proceedings were initiated as a result of a complaint lodged in November last year. In this regard, the plaintiff has been informed that practices in the area of online gambling are not an immediate priority for the Commission. The decision to close all infringement procedures therefore amounts to an extension of this position, as the Commission stated that “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”.

Reasons for this decision can also be found in the tremendous amount of judgments of the Court of Justice of the European Union (“CJEU”) in the gambling area. The CJEU has consistently ruled that Member States have the right to restrict gambling services where it is necessary to protect public interest objectives (e.g. fight against gambling addiction and fraud, protection of minors, etc.). Together with the Member States’ efforts to modernise The Commission has therefore acknowledged the broader political legitimacy of the public interest objectives that Member States are pursuing when regulating gambling services.

HOW FUTURE CASES WILL BE HANDLED?

However, such decision does not mean that the gambling sector is now exempt from respecting EU law. It rather relocates the control to national level by strengthening national courts’ enforcement powers. Indeed, the Commission considers national courts to be in a better position to handle complaints efficiently in light of the CJEU’s settled case law. Complainants may therefore make use of national remedies when facing problems with EU law in the gambling sector.

Pharumlegal has been involved on behalf of a Member state in all gambling cases at the CJEU and in some of the infringement procedures on behalf of a Member state.