Gambling: within the space of a few days, a spate of liberalisation has hit not just France, but also Denmark, Switzerland and again Italy – does a recent ruling from the European Court of Justice clear the way for Germany?

Rechtsanwalt Dr. Wulf Hambach

Hambach & Hambach Rechtsanwälte
Haimhauser Str. 1
D - 80802 München
Tel.: +49 89 389975-50
Fax: +49 89 389975-60
E-Mail: w.hambach@timelaw.de
A comment from attorney Dr. Wulf Hambach and Dipl.-Jur. Tobias Kruis, LL.M., Hambach & Hambach Law Firm.

A leading global information service (GamblingCompliance.com) headlined within the space of just a few days:
  • Denmark To Dismantle Gambling Monopoly ( 22nd of April 2009)
  • Switzerland Prepares Online Casino Reforms ( 24th of April 2009)
  • Earthquake Brings Avalanche Of Reforms in Italy ( 24th of April 2009)
Although it has attracted comparatively little attention, the so-called Hartlauer-Decision of the European Court of Justice (case C-169/07 of 10th March 2009, Hartlauer Handelsgesellschaft MBH vs. Vienna State government) could have far-reaching consequences for the German gambling market. In this decision, the European Court of Justice, in the same composition as in the eagerly expected Liga Portugisa-Decision, opposed Advocate General Yves Bot. The European Court of Justice reprimanded Austria, with reference to its so-called Placanica-Decision, because of an infringement against Community law and, in particular, because of an unjustified restriction of the Single European Market in the dental sector. But what has this decision about dental practices in Austria to do with Germany’s justification of the gambling monopoly? At first sight: just as little as the Californian returnee Klinsmann will have to do with FC Bayern in the future. A second and closer look reveals a predetermined breaking point in Community law regarding the justification chain of the Inter-State Treaty on Gambling.

In detail:

The present Austrian legislation requires prior official approval from the competent authorities before the setting up of autonomous ambulatory dental services where medical practitioners are active as employees. This approval is only granted if there is a corresponding requirement. On the other hand, group practices can be established at any time by independent practitioners without an approval or an economic requirements test.

Surgeries and group practices not only have similar equipment and numbers of doctors at their disposal, but also usually offer the same medical services so that patients generally cannot differentiate between them. The European Court of Justice now had to answer the question as to whether such a licence requirement in combination with a requirements test complies with Community law, i.e. the freedom of establishment. The court determined that this rule represents a restriction and generally requires justification. Subsequently, the court carries out an extensive and detailed examination regarding the suitability of the regulation to attain a high standard of health care and to avoid substantial threat to the financial balance of the social security system. It finally reaches the conclusion that it is not suitable. The main emphasis lies with the examination of the Consistency Requirement, developed in the Gambelli judgment1. According to this, the legal regulation has to allow the achievement of the aim in a consistent and systematic way. From the point of view of the European Court of Justice, the Austrian Regulation is not consistently designed, since there is no approval regulation for the equipment, furnishing or services of similar group practices. The Court also held that the member state had not put forward any justification for this unequal treatment.

What is the impact of this verdict, within community law, on the possible justification of a gambling monopoly?

Firstly, it shows that the European Court of Justice continues to strictly scrutinise the suitability of legislation, even in areas of competence that are basically the responsibility of the member state itself, leaving no wide-ranging scope for regulation for the member state. With that, the European Court of Justice continues its increasingly strict examination of the legal justification. Beyond that, the court reaffirms that the burden of explanation and investigation of the justification still remains with the member states, meaning that a gambling monopoly in a member state can only be justified if the level of protection is based on facts proved by a conclusive study. It is decisive that there is no consistent restriction of fundamental rights, where comparable categories are treated differently. That is why there must be a lack of consistency, when, as in Germany, fairly harmless gambling offers such as Lotto are forbidden while considerably more dangerous forms of gambling such as, for instance, slot machines and online horse betting, may be organised.

Conclusion

If one wanted to make a prediction, it would be: It is to be expected that these effects will become noticeable no later than in the pending preliminary ruling led by the Hambach & Hambach Law Firm, C-46/08, Carmen Media Group. In this case, the question of the consistency of the German gambling monopoly will be the centre of attention2. If there is no political relenting shown by the legislative body, then the monopoly will probably not stand up to the strict examination of the consistency requirement by the European Court of Justice to be expected after the Hartlauer ruling. To get back to the initial metaphor: the monopoly in Germany would end up just like Jürgen Klinsmann: served its time.

(1) Case C-243 / 01, Gambelli, ECR 2003, I-13031,par. 67.

(2) See, to this effect, W. Hambach/C. Hambach, “Taking stock of legislative activities – 100 days of the State Treaty on Gambling: a financial and legal blessing or a Waterloo for the German Federal States and the addressees?” TIME Law News 1/2008, S. 21 (25).