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CJEU: Advocate General criticizes consistency of Austrian gambling legislation

15 November 2013

BRUSSELS, Belgium -- (PRESS RELEASE) -- EGBA welcomes yesterday’s Opinion of Advocate General (AG) Sharpston in the Pfleger case (C-390/12) which reconfirms existing case law that national gambling legislation should be consistent and that it is up to the Member State to provide the necessary evidence to this effect.

AG Shapston recalled constant CJEU case-law that "[t]he burden of proving that the restriction is proportionate rests with the Austrian authorities", in particular to provide all necessary evidence that there has been a specific problem in Austria at the material time and that the national measure might actually solve that problem (para 58). (1)
The license holder's "[a]dvertising that encourages gambling by trivialising it, giving it a positive image or increasing its attractiveness aims to expand the overall market for gaming activities rather than channelling the existing market to certain providers. Such an expansionist commercial policy is plainly inconsistent with an aim of achieving high level of protection for consumers". (para 60)
AG Sharpston recalls settled CJEU case-law that the violation of EU law "precludes the imposition of criminal penalties for infringing the restriction" (para 73).
Finally, AG Sharpston reviews the national law with regard to obligations under the EU Charta of Fundamental Rights. She concludes that Member States have to satisfy obligations both, under the EU freedoms as well as the EU Charta of Fundamental Rights (see for example para 70).

EGBA Secretary General Maarten Haijer comments: "We welcome AG Sharpston’s Opinion in questioning the compliance of the Austrian gambling legislation with EU law. At heart is the issue 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.”

Haijer further adds: "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.

AG Sharpston’s Opinion is not legally binding but the Court often follows the Opinion in its ruling.

(1) The first and only prevalence study on Austria [Kalke et al 2011] shows very similar prevalence rates as in open, liberalized markets such as UK

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