Katarzyna Szychowska

Another gambling case

An EU member state may prohibit promotion and advertising of gambling services provided by enterprises from other member states, but may not apply discriminatory sanctions for violating the ban.

The ruling in the joined cases of Otto Sjöberg (C-447/08) and Anders Gerdin (C-448/08) represents the latest fallout from the Unibet decision (C-432/05) handed down by the European Court of Justice in 2007. Both of the new cases involved preliminary rulings under Swedish regulations prohibiting promotion of gambling in Sweden via the mass media, under threat of criminal sanctions. The issue before the ECJ was whether the Swedish law was consistent with the freedom to provide services.

Criminal charges were filed against Sjöberg and Gerdin, editors-in-chief and publishers of two of the leading newspapers in Sweden, because they had published advertisements for Internet gambling offered by a number of companies based in other member states. The charges were brought under the Swedish Law on Lotteries and Gambling, §38 of which prohibits promotion of games for monetary stakes conducted abroad, or conducted in Sweden without a licence, while §53 of the law provides for sanctions for violating this ban. The sanctions for advertising gambling conducted abroad are more severe than for advertising gambling conducted in Sweden without a licence.

In the ruling issued on 8 July 2010, the ECJ followed its fairly conservative approach to gambling services. The court pointed out that there is a wide divergence in gambling regulations among the various member states, reflecting lifestyle, religious and cultural differences. Given the lack of harmonisation of EU law in this area, member states may set the requirements for access to gambling in accordance with their own set of values.

In response to the references from the Swedish court for a preliminary ruling, the ECJ relied primarily on the 2009 ruling in Liga Portuguesa de Futubol Profissional (Case C-42/07), in which it held that in order to protect consumers from the danger of fraud and criminality, a member state may prohibit enterprises registered in another member state and providing gambling services over the Internet under a licence issued in their home country from offering such services to consumers residing in the first member state. In the opinion of the ECJ, these conclusions are also applicable in the context of advertising and promotion, even if the national regulations permit promotion of gambling by licensed domestic operators while at the same time banning promotion of services provided by foreign enterprises operating under a comparable licence. In consequence, according to the ECJ, the principle of freedom to provide services does not bar the prohibition set forth in §38 of the Swedish Lotterilag.

The court did find, however, that the regulation providing for harsher sanctions for promotion of gambling organised abroad was discriminatory and in violation of the freedom to provide services.

The judgment comes as no surprise, but represents an extension of existing ECJ precedent on gambling to cover the area of advertising and promotion.