Internet gambling and the right to provide services under EU law

Abstract

Gaming has been deemed as controversial since time immemorial. This dissertation focuses on the various gaming, both online and offline, related cases and other protective measures imposed by the Member States of the European Union. It aims to give a better understanding of the reasons and methods that were employed by different Member States whilst restricting service provision under Article 56 TFEU. It assesses the major issues that are being faced by the remote gaming operators when accessing the service market of Member States. An assessment of different national legislations and their compatibility with the Treaty under the Article 56 was carried out. Overviews of the European Commission actions were conducted in respect of the national legislative incompatibilities and its consequences. Finally, the reasoning of the Court of Justice of the European Union was analyzed in order to establish why Court, on occasions, does not preclude national legislation and allows certain restrictions. The main findings from this research show that the Court chooses to apply inconsistent reasoning, while taking into considerations previous rulings. Member States exert protectionist tendencies in the gaming industry and seek justification of such actions under Article 52 TFEU on grounds of public policy, public security or public health. Another interesting finding is that European Commission was an active player in the issue, trying to safeguard the interests of the Internal Market, yet gaming services were excluded from two Directives based on political reasons. However, European Commission issued a Green Paper on 24 March 2011 in order to launch public consultation on the matter. The Court's reasoning was analyzed from the critical point of view, since under preliminary reference procedure, it needs to establish, whether the means employed by the Member States can be deemed proportional and also in other actions including infringement proceedings against the Member States where a national law is found to be too restrictive because it is disproportionate. There exists an unfair balance in favor of the Member States vis-a-vis online gaming providers. The jurisprudence upholds revenue pursuit as the core interest.