The ECJ upheld its case law regarding online gambling services: towards 27 national gambling legislations?
The ECJ held in Otto Sjoberg and Anders Gerdin v. Swedish State (joint cases C-447/08 and C-448/08, July 8, 2010) that Swedish legislation which prohibits the promotion of online gambling organized by private operators in other Member States for profit is consistent with EU law. However, EU law precludes national legislation which penalizes the promotion of gambling organized in Sweden without a license differently from that of gambling organized outside Sweden.
In the above-mentioned rulings, the ECJ observed, thereby upholding its earlier case law regarding online gambling services (e.g. Santa Casa, Ladbrokes and Sporting Exchange), that EU law allows restrictions justified, among other things, on grounds of public policy, public security or public health. In this regard, in the absence of harmonization at EU level as regards gambling, each Member State is entitled to determine in that area, in accordance with its own scale of values, how to protect the interests in question. The Member States are therefore free to set the objectives of their policy on gambling and, where appropriate, to define in detail the level of protection sought. The restrictive measures that they impose must nevertheless satisfy the conditions laid down in the case law of the ECJ as regards their legitimacy, proportionality and suitability. The ECJ observed that it is clear that the exclusion of private profit-making interests from the gambling sector is, according to the referring court, a fundamental principle of the Swedish legislation in this field. Those activities are reserved in Sweden to bodies pursuing objectives which are socially beneficial or in the public interest and licenses for the operation of gambling have been granted exclusively to public or charitable bodies.
In view of the foregoing, the ECJ is of the opinion that considerations of a cultural, moral or religious nature can justify restrictions on the freedom of gambling operators to provide services, in particular in so far as it might be considered unacceptable to allow private profit to be drawn from the exploitation of a social evil or the weakness of players and their misfortune. Thus, the ECJ concluded, in light of the findings presented to it, that the Swedish legislation at stake reflects the objective of the exclusion of private profit-making interests from the gambling sector and may be regarded as necessary in order to meet such an objective. Such a legislation is therefore consistent with EU law.
In addition, the ECJ noted that the legislation in question provides for criminal sanctions only in relation to the promotion of gambling organized in another Member State and does not apply to the promotion of gambling organized in Sweden without a license, that latter offence being punishable only by an administrative penalty. Accordingly, if the persons carrying out the promotion of gambling organized in Sweden without a license incur penalties which are less stringent than those imposed on the persons who advertise gambling organized in other Member States, then the Swedish arrangements are discriminatory and thus infringe EU law.
One may infer from the ECJ’s assertion that the latter clearly upheld its highly controversial ruling delivered in Santa Casa v. Bwin (please see also more recent rulings in Ladbrokes and Sporting Exchange), thereby giving the green light to Member States for passing their own national online gambling legislations. In the current state of EU law, the EU could end up having as many as 27 national online gambling legislations. The internal market is far from being achieved…
