1. Freedom to provide services – Restrictions – Gambling – National legislation conferring an exclusive right to organise gambling on a single operator subject to strict State control – Justification
(Art. 49 EC)
2. Freedom to provide services – Restrictions – Gambling – National legislation conferring an exclusive right to organise betting on horseracing on a single operator subject to strict State control
(Art. 49 EC)
1. Article 49 EC must be interpreted as meaning that a Member State seeking to ensure a particularly high level of consumer protection in the gambling sector may be justified in taking the view that it is only by granting exclusive rights to a single body, subject to strict control by the public authorities, that it can tackle the risks connected with that sector and pursue the objective of preventing incitement to squander money on gambling and of combating addiction to gambling with sufficient effectiveness.
In that regard, it is for the national court to determine, first, whether the national authorities genuinely sought, at the material time, to ensure such a particularly high level of protection and whether, having regard to the level of protection sought, the establishment of a monopoly could actually be considered necessary and, secondly, whether the State controls to which the activities of the body benefiting from the exclusive rights are, in principle, subject are actually carried out in the consistent and systematic pursuit of the objectives assigned to that body.
In order to be consistent with the objectives of combating criminality and reducing gambling opportunities, national legislation establishing a gambling monopoly must:
– be based on a finding that criminal and fraudulent activities linked to gaming and gambling addiction are a problem in the territory of the Member State concerned, which the expansion of authorised and regulated activities would be capable of solving,
– allow only measured advertising strictly limited to what is necessary in order to channel consumers towards controlled gaming networks.
(see para. 72, operative part 1)
2. In order to assess the restriction of the freedom to provide services by a system that has established exclusive rights to organise horse-race betting, it is for the national courts to take account of all the substitutable channels of marketing for that betting, unless the consequence of using the internet is to increase the risks linked to games of chance beyond those that exist in relation to games marketed through traditional channels.
Where the national legislation applies in the same way to the offering of horse-race betting online and to such betting through traditional channels, the restriction of the freedom to provide services should be assessed from the point of view of the restrictions placed on the entire sector concerned.
(see para. 83, operative part 2)