Spanish Presidency
Legal reflection on topic of illegal gambling continues
By Dafydd ab Iago | Wednesday 31 March 2010
Following on from work during the Swedish and French EU Presidencies, the Spaniards undertook a lengthy exercise in analysing possible actions against illegal gambling in the EU. The Presidency sent out a detailed questionnaire on the different legal policies and measures that member states implement against illegal gambling. It also sought to ascertain what constitutes «illegal gambling» in the EU27.
More controversially, the Spanish Presidency even hinted that replies from the member states could serve as input for policy-choices when considering (common) actions against illegal gambling. Whilst «fully» respecting the principle of subsidiarity and proportionality, the Spaniards thus believe the debate may eventually give rise to future coordinated actions to deal with the challenges of gambling sector.
NO COMMON DEFINITION OF ILLEGAL GAMBLING
Clearly, though, such actions would need a common European definition of what exactly constitutes illegal gambling. «The member states do not have a common definition of illegal gambling,» admit the Spaniards. New member states, too, need to identify what is illegal gambling, especially in a cross-border scope. The Spaniards also point out that numerous member states have carried out or are carrying out amendments to their laws on gambling.
These legal reforms obviously make the definition of illegal gambling even harder, especially since
the definition ultimately lies with public authorities. All the member states have a public authority to issue licenses, regulate and control gambling. This may be an independent regulatory body (Italy, United Kingdom, and France) or the Ministry of Finance (Austria, Cyprus, Estonia, Hungary, Poland and Spain) or even other related authorities. On-line gambling is now authorised or in process of being authorised in most of the member states, except in Greece, Portugal, Germany, Romania, Cyprus, Poland and Lithuania.
The Spaniards note then that due to the absence of a common definition, gambling that is operated without license, or without complying with the laws of the relevant country, is considered unlawful. The problem lies in the cross-border dimension of whether and how a member state may prevent an operator legally established in another member state from operating in its country.
Although foreseen by some national laws, no member state actually uses financial transaction blocking for online gambling activities. Due to the practical difficulties involved, member states appear reluctant to apply financial transaction blocking. Most member states also do not block unauthorised gambling and betting Web pages (with Italy being the exception). The Spaniards appear to doubt whether this latter measure is «proportional» or «useful» against online illegal gambling.
Surveying the EU27, the Spanish Presidency has come to the conclusion that the most common measures against illegal gambling are administrative penalties. Administrative penalties are seen as causing less problems despite the legal requirements of serving notice and problems regarding the place of establishment of the operator.
Court resolutions for imprisonment of illegal operators, despite being on the books in the laws of some countries, are not frequently put into practice. This is due to the proportionality of the measure being «controversial», add the Spaniards. Equally controversial is the question of whether persons using illegal operators should be penalised. «Restrictive measures adopted in order to preserve public order must be also proportional to the gambling policy of the member states concerned,» notes the Spanish Presidency.
TRANSITIONAL PERIODS
The Spaniards end by pinpointing problems facing «illegal» operators in member states that have started to reform national legislation on gambling. Whilst most member states have not introduced limitations barring previously «illegal» operators from taking part in any tenders for licences, industry fears «grandfather» clauses in countries such as Denmark, France and Belgium protecting incumbent (state-controlled) operators.
The Presidency thus raises the question as to whether member states should examine transitional requirements which might not be compatible with EU legislation. «These kind of provisions during the transitional period might cause negative effects for the attainment of the objectives set in the new legislation and should therefore be carefully reviewed,» warn the Spaniards.
Member states appear reluctant to apply financial transaction blocking.
Measures against illegal operators
Surveying actions at national level in the EU, the Spaniards list measures as including:
i. imposing penalties through a gambling commission or other competent authority;
ii. court judgments of imprisonment;
iii. blocking financial transactions for online gambling activities;
iv. blocking systems for web pages;
v. prohibitions imposed on citizens on access to illegal gambling operators;
vi. sanctions against illegal advertising.
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