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Published online by Cambridge University Press: 20 January 2017
Billions of Euros of turnover are generated every year from games of chance. The legal framework conditions regulating this branch of the economy vary significantly within the European Union. Whilst in many countries such as Germany the state has a dominating monopoly position, other Member States, such as Denmark, France and Italy, have made moves towards a consistent partial liberalisation. These different framework conditions lead to problems, increasingly so as the European internal market is otherwise growing closer together. This is especially evident in the area of online gambling which, due to the structure of this medium, is not restricted by national boundaries, but must nevertheless not constitute a legal no man's land.
Against this background, it appears logical for the European Court of Justice (ECJ), on the occasion of the submission of cases by Member State courts pursuant to Art. 267 of the Treaty on the functioning of the European Union (TFEU) (previously Art. 234 EC), to repeatedly have called for the examination of national gambling regulations with regard to their compliance with Union law, as the ECJ's standing jurisdiction acknowledges that a (national) state monopoly for cross-border issues represents a violation of the freedom of establishment as set out in Art. 56 TFEU (previously Art. 49 EC) or the freedom of establishment as set out in Art. 49 TFEU (previously Art. 43 EC) respectively. Such restrictions of gambling activities may, however, be justified by matters of overriding general interest.
1 Judgment of 8 September 2010. In these proceedings, Carmen Media Group was represented by Wulf Hambach together with Christian Koenig, Michael Hettich and Susanna Pfundstein.
2 Standing case law since Schindler, see ECJ, judgment of 24 March 1994, C-275/92 regarding the import of advertising material for a lottery.
3 See, for instance, Gambelli, ECJ, judgment of 6 November 2003, C-243/01.
4 On “consistency” as a general requirement in the context of the examination of proportionality, see in particular the ECJ's decision in Hartlauer, judgment of 10 March 2009, C-169/07.
5 See ECJ, judgment of 8 September 2010, C-409/06.
6 See ECJ, judgment of 8 September 2010, C-316/07.
7 BVerfGE 115, 276 et sqq.; in this context, also see Christian Koenig, DÖV 2007, 313 et sqq.
8 ECJ, judgment of 8 September 2010 – C-46/08 para. 9.
9 Resolution for submission for preliminary ruling of 30 January 2008, see ZfWG 2008, 69 et sqq.
10 ECJ, judgment of 8 September 2010 – C-46/08 paras. 39 et sqq. and 1st headnote.
11 ECJ, judgment of 8 September 2010 – C-46/08 paras. 53 et sqq. and 2nd headnote.
12 ECJ, judgment of 8 September 2010 – C-46/08 paras. 63 et sqq. and 2nd headnote.
13 ECJ, judgment of 8 September 2010 – C-46/08 paras. 72 et sqq. and 3rd headnote. Another interesting decision in this context is the judgment in Engelmann of 9 September 2010 – C-64/08. In this case, the ECJ held upon submission for a preliminary ruling by an Austrian court, that if a licensing model is introduced, the licenses must be distributed by means of a transparent allocation procedure (see paras. 49 et sqq.). Furthermore, the granting of a license must not be made subject to the precondition that the company has a domestic establishment (see para. 40).
14 ECJ, judgment of 8 September 2010 – C-46/08 paras. 91 et sqq. and 4th headnote.
15 See, for instance, Gerhard Meyer in Jahrbuch Sucht 2009.
16 Notification letter by the European Commission dated 31 January 2008, infringement no. 2007 (4866, p. 9; recommendation of the expert committee for gambling addiction (Fachbeirat Glücksspielsucht) of 12 March 2008, available on the Internet at <http://www.fachbeirat-gluecksspielsucht.hessen.de> under “Sonstige Empfehlungen” (other recommendations)).
17 Hans-Günther Vieweg, Wirtschaftsentwicklung Unterhaltungsautomaten 2009 und Ausblick 2010 (economic development entertainment machines 2009 and outlook 2010), ifo Institut für Wirtschaftsforschung an der Universität München.
18 Similar: VG (administrative court) of Arnsberg, resolution of 15 October 2010, 1 L 700/10 and VG of Berlin, resolution of 6 October 2010, VG 35 L 354.10. A policy aimed at maximising profits, in particular in the area of commercial gambling machines, is, however, not considered to have been proven by the LG (regional court) of Duesseldorf, judgment of 3 November 2010, 12 O 232/09, VG of Oldenburg, resolution of 4 November 2010, 12 B 2474/20 and OVG (higher administrative court) of Berlin-Brandenburg, resolution of 26 October 2010, OVG 1 S 154.10.
19 Since ECJ, judgment of 9 March 1978 – C-258/98 ECR 1978 629, para. 24. On the binding effect for national authorities, see in particular ECJ, judgment of 9 September 2003 – C-198/01 ECR 2004, I-8055, para 51.
20 ECJ, judgment of 8 September 2010 – C-409/06. This concerned an application for a preliminary ruling filed by the VG of Cologne with its decision of 21 September 2006. This case still refers to the LottStV.
21 BVerfG, resolution of 6 July 2010, 2 BvR 2661/06, paras. 83 et sqq.
22 ECJ, judgment of 8 September 2010 – C-46/08, 4th headnote. Arguing along similar lines, Markus Ruttig, K&R (2010), pp. 714 et sqq. (717), making reference to the decision by the OLG (higher regional court) of Frankfurt a. M., resolution of 12 November 2009, 6 U 333/08.
23 ECJ, judgment of 8 September 2010 – C-46/08 paras. 97/98.
24 In this respect, the ECJ does not consider it to be sufficient if the submitting court makes reference to the arguments posed by the Commission in a detailed statement addressed to Germany regarding the GlüStV. Had the ECJ followed up on the reference to the Commission's statements, it would have been permitted to make specific determinations regarding the compliance of section 4 subsection 4 of the GlüStV with Union law. Therefore, submitting courts are strongly recommended in the future to directly provide their own even more comprehensive reasons for the submission for a preliminary ruling, in order to prevent the ECJ from restricting its own competence.
25 However, it is safe to even now forecast that German courts will have doubts with regard to the compliance of the “online ban” with Union law, and will therefore submit sufficiently specific questions to the ECJ in this respect.
26 ECJ, judgment of 8 September 2010 – C-46/08 paras. 64 et sqq.; ECJ, judgment of 6 November 2003 – C-243/01 ECR 2003, I-1301, para. 75.
27 To this effect, see Gerald Spindler, K&R (2010), pp. 450 et sqq.
28 See, for instance, the offers available on the Internet at <http://www.cinothek.com>. The operators are based in Germany and therefore are subject to the actions taken by German authorities.
29 Existing inconsistencies are particularly obvious with regard to the organisation of sports bets: Whilst freedom of trade applies to horse race bets, so that they may also be organised online, the GlüStV would be applicable for the organisation of camel races, so that the monopoly and the online ban would be applicable, see Jörg Ennuschat, GewArch (2010), pp. 425 et sqq.
30 See <http://www.lotto-hessen.de>.
31 The Fachbeirat Glücksspielsucht has reached the same conclusion with regard to the “E-Postbrief”, and has requested that the competent authority immediately withdraw the license, see resolution of the Fachbeirat of 27 April 2010, available on the Internet at <http://www.fachbeirat-gluecksspielsucht.hessen.de>, under “Sonstige Empfehlungen” (other recommendations).
32 ECJ, judgment of 8 September 2010 – C-46/08 para. 105.
33 See section 1 No. 2 of the GlüStV.
34 See Placanica, ECJ, judgment of 6 March 2007 – C-338/04, C-359/04, C-360/04, ECR. 2007, I-1891, para. 63.
35 ECJ, judgment of 8 September 2010 – C-316/07, C-358/07, C-359/07, C-360/07, C-409/07 and C-410/07, para. 115.
36 Günter Heine, for instance, states with regard to the protection under criminal law that such protection must also exist if a license was issued abroad and the licensing proceedings correspond to the essential control criteria in Germany. In this context, Günter Heine expressly makes reference to the “Whitelisting” procedure, see Schönke/Schröder, § 284 StGB para. 22d. This leads to the conclusion that, at present, sanctions cannot be imposed upon holders of licenses issued, for instance, on the Isle of Man.