The Freedom to provide Services according to EEA-law: EFTA Supervisory Authority brings Action against „Norway“

Rechtsanwalt Martin Arendts, M.B.L.-HSG

Arendts Rechtsanwälte
Perlacher Str. 68
D - 82031 Grünwald (bei München)
The „Gambelli“ decision unfolds its effect outside the EU as well, as we had already mentioned in no. 17 of our Newsletter „German Gaming Law updated“. Parallel to the provisions of the EC-Treaty, the freedom to provide services and the freedom of establishment are part of the treaty on the European Economic Area (EEA) concluded between the EU-Member States and the EFTA-States.

The EFTA Supervisory Authority the equivalent of the EU-Commission, brought action against Norway on March 13th 2006, after the Norwegian government had failed to comply with a comprehensively argued decision by the Supervisory Authority. Meanwhile the writ was served by the EFTA-Court (case-no. E-1/06). Norway was called upon to reply until the 18th of April 2006.

The reason for the action is the introduction of a national monopoly on gaming machines. Norway amended its gambling law in 2003. Accordingly the state-owned Norsk Tipping has the exclusive right to operate about 10.000 gambling machines. Thereupon the EFTA Supervisory Authority initiated the infringement procedure. The Norwegian provision was called inconsistent and disproportional. It were especially incompatible with the consistency test established by the ECJ.

The EFTA Supervisory Authority was thus faster than the European Commission, which initiated infringement proceedings against Denmark and Greece but has not yet brought action. Insofar the supervisory authority’s decision is groundbreaking. The rarely called upon EFTA-Court is probably going to decide soon.

It is of special interest, whether the court is going to follow the Supervisory Authority’s line of arguments, arguing that the Gambelli-criteria were not only applicable to sports-betting but also to other games of chance. A liberalisation of the Scandinavian gaming market (as well as the EEA-member Lichtenstein) now seems possible.