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The European Court of Justice (ECJ) issued yesterday its decision on the dispute between the Austrian gaming operator, Bwin, and the Portuguese gaming monopolist, Santa Casa de Misericòdia de Lisboa (Santa Casa).
The dispute concerns Bwin’s sponsorship of the Portuguese professional football league which Santa Casa had challenged stating that the deal is in breach of of Portugal’s advertising code that expressly prohibits the advertising of games of chance in Portugal, except for games developed by Santa Casa, and issued fines against both Bwin and the football league.
Bwin and the football league brought actions before the criminal court of Oporto requiring the annulment of such fines and the court referred the dispute to the ECJ asking for clarifications on the compatibility of gambling monopolies under European law. In particular, as already occurred in the Placanica and Gambelli cases, the ECJ had been called to judge on the compatibility between the principle of freedom to provide services set forth in the EC Treaty and domestic laws prohibiting the offer of services in the State by operators established in another EU Member State and lawfully licensed to under the laws of such EU Member State to provide similar services.
Yesterday, the ECJ held that “the prohibition imposed on operators […] of offering games of chance via the Internet may be regarded as justified by the objective of combating fraud and crime“. Indeed, the court recognised these objectives as “over-riding reasons in the public interest” that can justify a limitation to the freedom to provide services.
Moreover, the court also highlighted that “because of the lack of direct contact between consumer and operator, games of chance accessible via the internet involve different and more substantial risks of fraud by operators against consumers compared with the traditional markets for such games“.
This is a very relevant decision under an Italian law perspective as well since the compatibility of the Italian gaming licensing system with the EU principle of freedom to provide services had been challenged by gaming operators in several circumstances before national courts (see “Italian Administrative Court rules against the Italian licensing system“) and the ECJ. This decision is supposed to bring more clarity to the Italian gaming sector.
