Minimalist abuse control is a must

(Executive Summary)

Guidelines for the Examination of Union Law Restrictions in the Gambling Sector by the Member State Courts

by Univ.-Prof. Dr. Heiko Sauer *

Summary of the main findings:

  • In the absence of harmonization under Union law in the gambling sector, the Member States may determine the level of protection they deem necessary themselves; in this context, monopoly or concession systems are also permissible in principle. However, the overall broad scope for assessment is limited by the fundamental freedoms: These may be limited for reasons of public health or other imperative requirements in the general interest, which also include the objectives of gambling regulation pursued by the Member States. However, the restrictions on fundamental freedoms must be suitable and necessary in order to achieve the public interest objectives pursued.
  • In this examination, the coherence requirement developed by the ECJ is of decisive importance. This is not a general requirement of consistency, but rather the question of whether the public interest objectives cited by the member states are really behind the restriction of the fundamental freedoms (“truthfulness test”): Although there is a great deal of freedom in defining these objectives, the member states must then be able to adhere to the objectives put forward.
  • Whether a restriction of the fundamental freedoms is coherent in this sense must be examined by the courts of the Member States within the framework of an overall assessment of the circumstances. This involves a comprehensive legal and, above all, factual consideration not only of the relevant legal framework, but also of its practical implementation and control. A dynamic consideration is required, which must be carried out again and again. The coherence check is not about weighing things up in the sense of a balancing process; rather, there are absolute limits to coherence, which have so far become relevant in case law, especially in the area of advertising for gambling offers.
  • In principle, the coherence test is sector-specific, i.e. it is not incoherent from the outset if certain forms of gaming are regulated differently or less strictly than others. However, even a cross-sectoral view may prove that the objectives specified for the regulation of one area are not the true objectives if the regulation of other areas conflicts with those objectives.
  • The requirements of the coherence requirement are flanked by the fundamental right to effective legal protection as a “barrier barrier” to the fundamental freedoms.
  • The overall assessment of the circumstances required for the coherence check is the task of the national courts, which are provided by the ECJ in preliminary rulings with what is necessary for the assessment under European Union law. The Court itself is very cautious in drawing its own conclusions on the compatibility of national measures with Union law. It lays down strict requirements for the consistency test: Namely, the objectives of a regulation, the factual assumptions underlying these objectives, the existence of strict control or the role of state revenues from gambling are to be examined. The burden of proof for consistency lies with the member states, and the level of control is high. A consistency check that fails to meet the requirements of Union law is itself contrary to Union law.
  • Due to the primacy of Union law, lower courts are not bound by supreme court decisions if they assess coherence differently. If necessary, they have to (re)initiate a reference for a preliminary ruling under Article 267 TFEU.
  • The coherence assessments of the Austrian supreme courts fail to meet the requirements of Union law: In the overall assessments of the circumstances carried out, actual circumstances, namely the practical application of gambling regulations, play too little of a prominent role; moreover, the assumptions underlying the objectives of gambling regulation are only insufficiently scrutinized. The coherence checks, which are to be carried out again and again in any case, thus fail overall to meet the requirements of EU law with regard to the density of control to be applied by the national courts. This is particularly evident in the area of advertising.

* The author holds the Chair of German and European Constitutional and Administrative Law at the Faculty of Law and Political Science of the Rheinische Friedrich-Wilhelms-Universität in Bonn. The text is based on an expert opinion commissioned by the OVWG. The legal opinion was completed on March 11, 2021.

The essay was published in: ECOLEX 2021/320.