The Commission's decision to close all gambling infringement cases : a carte blanche to Member States to outmanoeuvre the free movement of services in the EU's online gambling sector?

Abstract

With the increased accessibility to the internet, the online gambling sector has seen a steep rise in popularity and in financial revenue. In recognising the exponential growth of the online gambling industry in the early 2000s and its cross-border dimension, the EU had shown an appetite to instil EU-law principles into online-gambling regulations. With the changes in the EU’s political players, one could witness the dwindling enthusiasm of the Commission and a growing trend amongst Member States, to regulate their national online gambling sector individually. The European Commission received complaints from other Member States and industry stakeholders and took action on the basis of powers afforded to it under Article 258 TFEU. On the other hand, the CJEU provides preliminary rulings requested from national courts on points of EU law in the area of online gambling. As seen in CJEU case law, striking a balance between a justifiable reason to restrict competition to protect public interest and the general principle of the free movement of services in the EU has proven hard to achieve. The CJEU has reiterated the latitude of Member States to legislate in this area in order to safeguard consumers against gambling problems, and to combat money-laundering and other crimes related thereto but did rule against national legislative provisions when found to be pursuing goals outside the overriding public interest. While at the outset the Commission was very keen on consultations and to provide recommendations to the stakeholders for a more streamlined industry, this interest waned off to the point that in 2017 the Commission took the decision to stop all infringement proceedings in the area of online gambling. This study traced this inconsistence and sought to understand the effect that the 2017 Decision has had (and still has) on the industry as a whole. It established that preliminary references do not replace infringement proceedings and therefore, this has not only taken away an important forum where stakeholders could challenge restrictive regulations in the field, but has also presented the Member States with a carte blanche to regulate more freely as they face much less channels of opposition.