September 11, 2009
The ECJ on ON-line gambling
The Grand Chamber issued its ruling on Liga Portuguesa de Futebol Proffissional, Bwin International Ltd v. Departamento de jogos da Santa Casa da Miscericordia de Lisboa on the 8th of September, 2009. The Liga and Bwin (online service provider) sought to repeal a fine placed on them, on the grounds that it constitutes a violation of the freedom of services. The significance of the case is evident from the 12 Member States (some with similar gaming monopolies) that took part in the proceedings.
The Liga and Bwin had entered into a sponsorship-agreement that made Bwin the main sponsor of the Portuguese Football League. Bwin was promoted and its marks highly visible at all venues and sites relating to the league. Sports fans were encouraged to access Bwin's site from the Liga'sweb pages as well as, at the stadiums and other venues.Santa Casa, who holds the exclusive license for gaming activities in Portugal sought a fine for illegal gamig activity. Bwin did not have a place of business in Portugal, however, it had established presence in Austria; where internet gaming is legal.
Having concluded that neither freedom of establishment ( Art. 43), nor the free movement of capital and payments ( Art. 56) were at issue here, the Grand Chamber found that Article 49 on the protection of freedom of services was relevant. Santa Casa' s exclusive license did offend Art. 49, however, it was justified under Articles 45-46 due to overriding interests of public policy.
Since gaming services have not been subject to Community harmonisation, the Member States are free to choose their gaming policy irrespective to that of others. The restrictive measures are assessed based on proportionality and how they reflect a genuine interest that is consistently and systematically pursued. The court found that the concerns inherent in gambling constituted sufficient reason for channeling all activity to one actor.
Read the decision and AG-opinion here
and the decision in a related Finnish case here.
