BELGIAN AND FRENCH VIEWS OF
EUROPEAN GAMBLING REGULATION
Thibault Verbiest
Attorney at the Paris and Brussels Bars
[email protected]
University of Tilburg,
23 November 2005
Belgian and French views of
European gambling regulation
What is the European gambling regulation?
(1) The EC Treaty
 article 50 EC Treaty: services are provided for
remuneration
 Article 49 ECT: freedom to provide services within
the Community
 Article 46 ECT: discriminatory restrictions ok if
public policy, public security, public health.
Belgian and French views of
European gambling regulation
(2) The ECJ case-law
Schindler, Zenatti and Läärä cases (1994-1999):
restrictions ok if
 Non discriminatory
 Justified by imperative reasons of general interest:
to curb harmful effects of gambling
 Necessary and proportionate: must guarantee the
achievement of the objective pursued and not go
beyond what is necessary.
Belgian and French views of European
gambling regulation
2) The ECJ case-law
 The Gambelli and Lindman cases (2003): limitation of
possible restrictions
 Consistent gaming policy
 Clear guidelines to national courts on how they should use
their discretional power to interpret the facts of the case
 Country of origin principle
 Proof of clear and present risks for consumers
 Proof of proportionality by submission of statistical or
other evidence
Belgian and French views of European
gambling regulation
(3)Secondary EU law and initiatives of the Commission











E-commerce directive (2000): second report awaited 2005
Ensure free movement of information society services
Internal market clause
Exclusion of gambling services
Study on gambling services in the internal market
To evaluate how the differing laws regulating online and offline gambling
services impact on functioning of the Internal Market
To evaluate whether those laws restrict the economic and employment growth
associated with gambling services
Publication of report June 2006
Proposal for a Directive on Services in the Internal Market (Jan 2004)
Country of Origin principle (//internal market clause)
Gambling excluded from COP
Belgian and French views of European
gambling regulation
(3)Secondary EU law and initiatives of the Commission
Gebhardt report on the services directive (April
2005)
 Complete exclusion of gambling
To finance public budget
To protect society at large
MS have the right to impose restrictions on
cross-border provision of services to maintain
social order and consumer protection
Belgian and French views of European
gambling regulation
(3)Secondary EU law and initiatives of the Commission
 Gebhardt report on the services directive (April 2005)
 Mutual recognition & Country of Destination
 Country of origin rules do not apply in fields of consumer
protection, environmental protection, labour law
 MS may invoke Country of Destination principle if :
 Reasons of public interest (social policy)
 This interest is not yet protected by provisions applicable to the
service provider in his Country of Origin (equivalence)
 These rules are proportionate, generally applicable, businessrelated in nature
Belgian and French views of European
gambling regulation
(3) Secondary EU law and initiatives of the Commission
 Inconsistency of the Gebhardt report with ECJ case-law
 The right of MS to impose restrictions is not absolute: see
Gambelli and Lindman (consistent gaming policy)
 Restrictions of cross-border gambling to secure public
revenues is not a justified ground to override the freedom
to provide/receive services
Schindler, Zenatti, Gambelli cases
 Vote on Gebhardt report postponed until 21 November
2005
 EP’s plenary will probably vote in January 2006
Belgian and French views of
European gambling regulation
(4) France: regulatory framework
 Restrictive gaming policy
Act of 21 May 1836 on lotteries
Act of 12 July 1983 on games of chance
Act of 15 June 1907 on casinos
Act of 2 June 1891 on horse races
Belgian and French views of
European gambling regulation
(4) France : regulatory framework
Games of chance 1983 Act: illegal provided
that
The operation involves a gaming house
(remote casinos)
This gaming house is open to the public
Games of chance take place on the premises
Belgian and French views of
European gambling regulation
(4) France : regulatory framework
 Lotteries 1836 Act: illegal provided that
 The offer is made to the public
 The intention is to make a profit
 The outcome of the lottery is random
 Two exceptions:
 FDJ, also online
 PMU, also online
Belgian and French views of
European gambling regulation
(4) France : regulatory framework
 Perben II Act, 9 March 2004
Offence to distribute or to facilitate the
distribution of tickets, to announce, to
display or to make public the existence of a
forbidden lottery
Criminal complicity rules
Belgian and French views of
European gambling regulation
(4) France: case-law
 TGI Paris, 8 July 2005
 PMU wins case against Malta established bookmaker
Zeturf
 Debate focused on intellectual property aspects and PMU’s
exclusive rights
 No assessment of the compliance of French gaming policy
with European law
 Delocalization of gambling not easy: see Regulation
44/2001
 Appeal lodged: should focus on Gambelli
Belgian and French views of
European gambling regulation
(4) France: case-law
 TGI Paris, 2 November 2005, Summary proceedings
 Order condemning the two companies hosting Zeturf’s
website to:
 prevent the access to the site www.zeturf.com as long as
online sports betting activity are offered, under a 1500 €
penalty per day
 to pay a provisional indemnity of 30 000 € to the PMU
 Appeal lodged against the order ► Paris Court of appeal,
22 November 2005
Belgian and French views of
European gambling regulation
(4) France: case-law
Criminal Court of Nanterre, 12 November 2004
 Condemnation of a French individual associated
with the website www.kipari.com.
 Following a complaint of the FDJ and the PMU,
the Court ordered to stop taking bets from French
residents
Belgian and French views of
European gambling regulation
(4) France: Senate report
 2002 Trucy report on French gaming policy
 Partial vision: state protectionism but no answer to
compulsive gambling and dynamism of the gaming market
 Ambivalent position of the French State: moral issues /
State revenues ►French state regulator and majority
shareholder of the FDJ
 Absence of regulatory initiative: regulatory framework for
games out-dated and unnecessary complicated
 Risks: emigration of certain operators / development of
illegal activities.
Belgian and French views of European
gambling regulation
(5) Belgium: regulatory framework
 No blanket regulation for the organization of
games
 Three acts:
 Games of chance Act 1999
 National Lottery Act 2002
 Sports betting Act 1963 (pool betting)
 Games that are not subject to any of these acts can
be organized without a particular “gaming license”
Belgian and French views of European
gambling regulation
(5) Belgium: regulatory framework
 Games of chance 1999 Act
 Article 2
“ any game involving a stake and whereby the result or the
winner is determined by chance”
 Section 4: licence requirement
“No person shall operate one or more games of chance or
gaming establishments without a licence … previously
granted by the Gaming Commission.”
 Ended the « game of chance vs. competition » debate
Belgian and French views of European
gambling regulation
(5) Belgium: regulatory framework
1999 Act: Shortcomings
 Qualification of “stake”
 Betting activities on sports events excluded: fixedodd betting not regulated ► no bookmaker permit
required
 Technology neutral ► applies to games of chance
organized by means of new technologies
Belgian and French views of European
gambling regulation
(5)Belgium: regulatory framework
 National lottery Act 2002
 Monopoly on remote gaming operations
 Shortcomings
 Initiatives to modify the 1999 Act: private gaming
operators may obtain licence to operate
 EC Notification Directive 1998/34 ► compulsory to notify
regulatory proposal concerning information society
services (ie, online gaming services), otherwise
unenforceable against individual gaming operators
Belgian and French views of European
gambling regulation
(5)Belgium: regulatory framework
Consequence: Program Act December 2002
modifies 2002 National lottery Act
Abolition of National Lottery monopoly
No exclusive right to organize remote
games
Belgian and French views of European
gambling regulation
(5) Belgium: case-law
Constitutional Court, 10 March 2004
2002 National Lottery Act partially
infringes the Belgian Constitution.
Explicit reference to Gambelli: MS cannot
invoke public order concerns, when at the
same time they incite and encourage
consumers to participate in games to the
financial benefit of the public purse.
Belgian and French views of European
gambling regulation
(5) Belgium: case-law
 Consistent gaming policy shortcomings
 Court does not consider if the exclusive right of the National Lottery to
organize remote gaming de facto meets EU law requirements
 Does not consider the consistency of the Belgian gaming policy:
 Consumer Protection Act 1991►exclusive right of national lottery to
advertise ?
 National Lottery’s compliance with 1999 Act ?
 Necessity/proportionality assessment? ►statistical evidence (Lindman
case)
 March 2003 contract: “National lottery shall carry out adequate
marketing campaigns”► incentive to play
Belgian and French views of European
gambling regulation
(5) Belgium: future
Gaming Board: will regulate in a more consistent
manner
 Possible extension of the scope of the 1999 Act on
games of chance to all sorts of games, including
betting activities
 Private operators may be granted a remote gaming
license to offer and promote online casinos and
games of chance
Belgian and French views of European
gambling regulation
 General conclusions
 Ambivalent role of the French state: public funds vs morality of gaming
services ► no consistent gaming policy
 no single public authority competent to monitor the sector
 no public program to counter the negative consequences of compulsive
gambling ► no responsible gaming policy
 Complaints lodged to the European Commission by Maltese bookmakers
against French State
 Belgium: partial and abstract application of Gambelli
 Belgium willing to open up market to online private operators, not France:
exclusivity of FDJ & PMU
 Complaints lodged to the European Commission by German firm against
Belgian National Lottery
 Pressure growing on both MS to open market, Belgium more compliant with
EU law requirements