Austria currently has a gambling monopoly (§ 3 GSpG), whereby the Federal Minister of Finance (BMF) can transfer the right to conduct gambling to private companies by granting a licence. The direct award of licences, which was practised until 2010, was declared inadmissible by the ruling of the European Court of Justice in the Engelmann case (C-64/08): As a result, the Federal Ministry of Finance had to put its gambling licences out to tender Europe-wide, publicly and transparently for the first time – with moderate success as regards the licensing of providers other than CASAG and ÖLG.
The stationary casino concessions were awarded in two packages of six licences each – so far all in the hands of CASAG. In addition, three further individual licences were put out to tender for the first time in 2013, the award of which was delayed due to legal disputes and which – as things stand at present – will probably no longer be put out to tender. The only lottery licence which also includes online casino games (so-called “electronic lotteries”) was granted to the ÖLG (most recently in 2011).
The tender conditions for the lottery licence were tailored to the monopolist, especially as proof of at least five years of experience in offering lottery products was required. This definition of offline combined with online requirements meant that it was de facto impossible for a provider providing its services exclusively via the internet to obtain this concession. In addition, there is by now no justification for why, in a rapidly growing market, only one licence is required in order “to steer the gambling instinct into an orderly course”. Overall – as the European Court of Justice has already stressed several times – this raises serious doubts as to the conformity of the Austrian gambling monopoly with Union law.
Due to their EU licences, the members of the OVWG offer their services completely legally in Austria. Due to the lack of possibility to obtain Austrian licences and the fact that the Austrian gambling monopoly is contrary to EU law, need for action on the part of the legislator arises. The providers are prepared to apply for Austrian licences at any time and already comply with high player protection standards. These providers are taxed by the Federal Ministry of Finance at 40% of the annual gross gaming revenues.
Role models in the EU show how sustainable regulation of the online sector can succeed. In these countries it has already been possible to create a modern legal framework for the online sector and thus take account of the progressing digitisation: Denmark has taken on a pioneering role in Europe. The Danes have a licensing system with no numerical limit on the number of licences and strict requirements regarding consumer, data and youth protection. The authority publishes compliance guidelines and recommendations and also works closely with licensed gambling operators. Only one year after the opening of the market in 2012, the authority estimated the share of unlicensed providers at less than 5 percent. See below under “What we want to achieve” which criteria have led Denmark to successful regulation; we also want to achieve this for Austria.