Austrian gambling law consistency criticised
Advocate General Sharpston of the European Court of Justice has published an opinion critical of Austrian law consistency in the Pfleger case, reconfirming existing case law that national gambling legislation should be consistent and proportionate, and that it is up to the Member State to provide the necessary evidence to this effect.
The Pfleger case highlighted a specific problem in Austria in which the state monopoly on the one hand claimed that the exclusion of competitors was necessary for the protection of Austrian citizens from addiction, whilst on the other it indulged in aggressive marketing and advertising.
“Such an expansionist commercial policy is plainly inconsistent with an aim of achieving high levels of protection for consumers”, the AG observed.
Commenting on the AG’s opinion, Maarten Haijer, secretary general of the online gambling trade association EGBA said:
“We welcome AG Sharpston’s Opinion in questioning the compliance of the Austrian gambling legislation with EU law. At its heart is the issue of whether the Austrian gambling law is consistent rather than arbitrary. It becomes clear from today’s Opinion that the AG does not consider the Austrian gambling legislation as fulfilling the consistency requirement in order to comply with EU legislation and existing jurisprudence.
“By reaffirming the obligation for national regulation to be consistent, the Opinion once again confirms the “red lines” of EU jurisprudence that Member States cannot cross. It reinforces the need for the European Commission to fulfill its role as guardian of the treaties, including by making use of infringement procedures where needed.”
The Austrian gambling system has been subject to several court cases both on a national and EU level, in particular the CJEU cases C-64/08, Engelmann; C-347/09, Dickinger and Ömer as well as C-176/11, Hit and Hit Larix, in which the CJEU has detected major inconsistencies of Austrian gaming legislation leading to its non-compliance with EU law.