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EU law keeps moving in circles (Punishing gaming consumers)

Posted on | February 24, 2010 | No Comments

The process of shaping European national gambling law into a consistent community law honoring the Rome treaty continues to move in circles. Each time a juridical matter is up for trial it seems to fail just the actual “trial” due to the simple fact that the core matter never gets tried. The core matter in my opinion is not whether a national gambling monopoly is in line with or in conflict with community law. The core matter is whether the national monopolies in fact ACT IN A SUCH A WAY THAT THE PURPOSE OF THE MONOPOLY IS ACHIEVED.

Yesterday EU Advocate General Yves Bot issued an opinion regarding the Sweden related case where Chief Editors of Aftonbladet and Expressen stand accused for violating the national Swedish lottery law. Albeit Bots opinion was another circular reference avoiding touching on the actual problem, it features three interesting conclusions, especially when factored against each other:

  1. The prohibition on promoting internet gaming offered by companies established in other Member States can be regarded as justified by the objective of the fight against fraud and criminality
  2. Internet gaming organized by a company established in another Member State does not necessarily pose greater risks of fraud and crime to the detriment of consumers than gaming organized clandestinely by a company established within the national territory.
  3. Community law does not preclude Swedish legislation which reserves the right to organize gambling only to licensed operators which carry on their activities under the strict supervision of the public authorities.

We all acknowledge that a national monopoly is perfectly compliant with EU law as long as it´s purpose is to guard the good of the public, and nothing else. In gambling lingo this often translates into “fighting fraud and other criminality” for instance. The problem is however that we to date never have seen the correlation between actions and purpose tried in any relevant court. The recent Santa Casa verdict only concluded that the Portuguese monopoly could be justified on the grounds of public protection. It didn´t penetrate the matter as to validate if public protection was best achieved through the current monopoly or if it could be achieved more efficiently in some other way.

Yesterdays opinion by ECJ Advocate General  Yves Bot in the Swedish case where Aftonbladet and Expressen teamed up against Swedish State in a marketing matter concerning advertisements for foreign gambling operators is (not all that surprising) another circular move. It is perfectly ok for Swedish law to forbid marketing by nationally un-licensed operators. A conclusion without value as it is based on the assumption that the monopoly actually is operating efficiently to prevent crime and to protect the citizens from harm. As long as the de facto actions of the monopolies are never tried in correlation to the purpose of the monopolies all similar trials and verdicts will be of absolutely no further value!

Let´s take a look at my list featuring conclusions of particular interest again:

  1. The prohibition on promoting internet gaming offered by companies established in other Member States can be regarded as justified by the objective of the fight against fraud and criminality

REFLECTION: In our modern and enlightened European society, how can it be that the entire legal gaming framework relies on an assumption that the monopolies in fact honor the  above purpose and also that a monopoly (one of the most dramatic and aggressive economic tools available) in fact is the best measure to achieve the purpose? The answer is of course spelled Gov tax income.

  1. Internet gaming organized by a company established in another Member State does not necessarily pose greater risks of fraud and crime to the detriment of consumers than gaming organized clandestinely by a company established within the national territory.

REFLECTION: If above stands valid and true, how can it be that any EU member state gambling monopoly is discriminatory towards operators located in another EYU member state? The circular lack of logics spins and spirals out at an ever faster pace.

  1. Community law does not preclude Swedish legislation which reserves the right to organize gambling only to licensed operators which carry on their activities under the strict supervision of the public authorities.

REFLECTION: Fair and square, assuming the monopoly is a good way to protect the good of the public any operator under the monopoly should be supervised rigorously. The problem is that Swedish lottery law stipulates that only Swedish organizations can acquire a permit to operate in Sweden. Consider this fact and then consider the two items above. It doesn´t hold up, does it? Unfortunately it probably will until ECJ finally starts looking at the actual actions of each individual monopoly operator. Which ECJ clearly have stated through its opinions and rulings that they are not prepared to do.

So it seems that the Swedes cannot expect any improvement to the current violation of consumer rights. Nor can any other European gaming consumer currently under a hostile gambling monopoly expect any change for the better. Prices will remain too high, product offerings from monopolies will remain worse than featured on the market. Myself and many others argue that the current national monopolies are also destructive to the national economies in large, and to gambling addiction prevalence in particular. But perhaps worst, we will see the project of the European Union move on further along a path that is quite contradictive to the original principles and intentions of the Rome treaty. Where will it lead us?

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