June 1st marks the point after which the Gaming Authority will follow a sharpened approach to enforcement whilst several voices claim that the decision of the CJEU in C-49/16 Unibet (22nd June), which revolves around the allocation of gambling licences, prevents the Gaming Authority from seeking enforcement measures against remote operators. As with many things in life, reality is more nuanced than what first meets the eye.

On June 29th the Gaming Authority issued a press release stating that Dutch gambling law has frequently been tested against EU law and has always been found to be in compliance. It also stated that all of its sanctions decisions have been upheld by the courts. Indeed, in terms of case-law published to date no operator has successfully challenged a sanction decision.

Yet, it cannot be said that all aspects of the regulatory regime have been found to be EU law compliant upon each and every test in recent years. Indeed, in 2011 the Council of State found in the Betfair case that the lack of a transparent allocation procedure for exclusive betting licences breached Article 56 TFEU. Given the continued lack of a transparent allocation procedure, the District Court of The Hague held that the lack of such a procedure could not be justified and was thus incompatible with EU law (in September 2016 regarding the horserace betting licence and in March and October that year regarding the sports-betting licence). Since then De Lotto has merged with the Staatsloterij, but it remains an open question as to whether the award of the sports-betting licence for the period 2017-2021, again in the absence of a transparent procedure, is compliant with EU law. A licence allocation process was introduced for the 2017-2022 horserace betting licence. If this last allocation procedure passes the scrutiny of EU law remains to be seen.

Furthermore, the rejection of an application for a “charity lottery” licence under Article 3 Wet op de kansspelen, on the basis of a 2014 policy rule, which sought to maintain the status quo on the market, has also proved problematic. By rejecting a licence application solely by reference to the policy rule, without considering whether doing so was justifiable under Article 56 TFEU, resulted in the court finding, along with other grounds, that the Gaming Authority had insufficiently motivated its decision. Ultimately this resulted in the introduction of a transparent licence allocation procedure for this particular sector.

Whilst in 2012 the Supreme Court found the exclusive licensing system for betting to be compliant with EU law, on the basis of facts stemming from 2006, the regulatory system evidently has not always received a clean bill of health under EU law. Questions remain. Indeed, infringement proceedings before the European Commission have not been closed. Both De Lotto’s offer and the case-law have evolved since 2006. As more time passes, a monopoly, without a transparent licence allocation process, appears increasingly archaic and inconsistent against scope for access to the markets for slot machines, charity lotteries and, in the future, the casino and remote gambling markets.

 

Justin Franssen & Dr Alan Littler, Kalff Katz & Franssen Attorneys at Law

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