The debate over Belgium's new Gambling Act, which only permits licensed land-based operators to offer online gaming services, could come to a head in the European Court of Justice.
The new law, which is scheduled to come into effect in January 2011, restricts online gambling services to certain licensed operators in Belgium, who, it seems, are in favour of being able to move into online wagering. According to Koen Platteau, partner at business law firm Olswang, the government’s justification for taking such a step is protecting public interests, such as consumer protection and tackling fraud and crime.
“The Belgian approach towards online gambling is certainly not unique within the EU,” Platteau told InterGaming. “It is important to stress that there will be no monopoly on online gambling in Belgium. However, only a limited number of operators will be entitled to offer the service.”
The Belgian parliament’s actions have been criticised by various organisations and online operators active throughout the EU and a complaint has been filed with the European Commission.
“They claim that the offline requirement creates barriers to the EU internal market,” Platteau explained. “In particular, they invoke the principles of free movement of services and freedom of establishment. Interestingly, the European Commission voiced similar concerns when it reviewed a draft of the Gambling Act containing the offline requirement. However, the Belgian Parliament adopted the offline requirement regardless of the Commission’s comments.”
There are, however, legal precedents in Belgium’s favour specifically relating to online gaming. In particular, the Court of Justice’s judgment in the Liga Portuguesa de Futebol/Bwin case, in which it upheld that the Portuguese monopoly that extended to internet gambling complied with EU law. In that instance, the court referred to the absence of harmonisation at the EU level and the risks of fraud and crime, which it perceived to be higher in the case of online gambling. In subsequent rulings, the court has confirmed that under current EU law, there is no obligation for member states to mutually recognised gambling licences issued by national authorities.
Platteau continued: “The offline requirement has been adopted and is due to come into force in January 2011. On the basis of the Court of Justice’s case law referred to above, the offline requirement is more likely than not to pass the Court’s scrutiny.”
This, of course, may bring the debate between the Belgian government and those opposed to the new law to a head.
“Their case is now in the hands of the European Commission,” Platteau added. “There are no strict time limits. If the Commission sticks to its earlier position and Belgium does not move, it will have to bring the matter before the court. It is not yet clear at this stage what the Commission’s intentions are.”
