Memorandum from European Lotteries (DGB
102)
This letter is made on behalf of European Lotteries
(EL) further to the call for written evidence of 19 November 2003.
EL brings together most of the State Lottery and/or Toto companies
of the EU Member States as well as the lottery/Toto companies
of Albania, Azerbaijan Republic, Bosnia-Herzegovina, Bulgaria,
Croatia, Cyprus, Czech Republic, Estonia, Gibraltar, Hungary,
Iceland, Israel, Kazakhstan, Kosovo, Latvia, Lithuania, Macedonia,
Malta, Moldavia, Norway, Poland, Romania, Serbia-Montenegro, Slovakia,
Slovenia Switzerland, Turkey and Ukraine.
EL is writing to the Joint Parliamentary Committee
concerning the content of the UK Draft Gambling Bill. EL welcomes
the opportunity to give its comments and would like, if required,
to provide oral evidence.
It is well-established case law of the European Court
of Justice7[7]
that Member States have the right to prohibit or restrict games
offered from other EU jurisdictions, even if provided by means
of information society (internet, interactive television, mobile
betting, etc.) and even if these services are provided by a gambling
operator that is established in another Member State and duly
licensed in that Member State. In its gambling jurisprudence,
the European Court has consistently accepted that a national legislation
that confers exclusive rights to certain undertakings to offer
gambling services does, as such, not constitute a violation of
the EC Treaty, as long as this legislation is justified by objectives
of social policy and consumer protection aimed at limiting the
harmful effects of gambling activities. Hence, if these conditions
are being complied with, national gambling monopolies and exclusive
licenses do no violate the EC Treaty provisions. Accordingly,
Member States remain entitled to prohibit or restrict gambling
activities offered from other EU jurisdictions.
Among the proposals contained in the bill are
the regulation of remote gambling, which will be licensed for
the first time in the United Kingdom. EL is very concerned about
the impact of the draft Gambling Bill, as the current draft would
stimulate UK licensed gambling operators to offer their services
on a pan-European scale.
This evolution would undermine the national
gaming policies of the other EU Member States and would pave the
way for an unlimited supply of remote gambling services into the
territories of the other EU Member States. The European Court
of Justice has consistently recognised the discretionary power
of the Member States to decide about the number and type of operators,
as well as the right to decide about the type and volume of games.
If a UK operator would offer its games on the entire EU territory,
this would destroy the discretionary power of the national authorities.
In relation to cross-border gambling, the draft
Gambling Bill stipulates that a remote gambling operator will
commit an offence if it does anything in the United Kingdom, or
uses remote gambling equipment situated in the United Kingdom,
for the purpose of inviting or enabling a person in a prohibited
territory to participate in remote gambling. It will be the responsibility
of the Secretary of the State to designate the countries which
are regarded as a prohibited territory. However, following the
publication of the DCMS' position paper on remote gambling, EL
is very concerned that the prohibited territory clause will not
be made applicable to other EU Member States. In its position
paper, the DCMS has clearly opted to follow a free market approach
on gambling. In the DCMS's view national boundaries have little
meaning and there is no black list of countries from where the
UK gaming industry are unable to accept customers. The UK Government
will only oblige UK operators to refuse bets if (remote) gambling
is not allowed in the country of destination.
In addition, the European Court of Justice also confirmed
that the extent of protection offered on a territory also depends
upon the social and cultural differences of each Member States.
In the light of the specific social and cultural features of each
Member State, national authorities must have a sufficient degree
of latitude to regulate gambling activities and to determine what
is required to protect the players. Not every EU jurisdiction
has the same gaming culture as in the United Kingdom. This consideration
goes hand in hand with the subsidiarity principle, as agreed during
the Edinburgh Council of 1992. In Edinburgh, the European Council
decided not to regulate gambling at the EU level, as it found
that gambling, given the principle of subsidiarity, is unsuitable
for Community legislation and is better dealt with at a national
level.
In the light of the aforementioned considerations,
EL therefore urges the Joint Committee on the Draft Gambling Bill
to take into consideration the preoccupations of the other Member
States so that the future deregulation of the UK gambling policy
does not adversely affect the competencies of the Member States
with regard to the regulation of gambling services.
EL would also appreciate it if it could give more
extensive information about its views during the oral hearings.January
2004
7 Case C-275/92, Her Majesty's Customs and Excise v
G. Schindler and J. Schindler, 1994 ECR I-1039, Case C-124/97,
Markku Juhani Laara, Cotswold Microsystems Ltd,
Oy Transatlantic Software Ltd. v Kihlakunnansyyttaja,
Suomen Valtio, 1999 ECR I-6067, Case C-67/98, Questore di Verona
v Diego Zenatti, 1999 ECR I-7289, Case C-6/01, Associaça¯o
Nacional de Operadores de Ma«quinas Recreativas (Anomar)
v Portuguese State, judgment of 11 September 2003, Case
C-243/01, Procuratore della Repubblica v Piergiorgio Gambelli,
judgment of 6 November 2003 and Case C-42/02, Diana Elisabeth
Lindman v Skatterattelsnamnden, judgment of
13 November 2003. Back
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