Cjeu: Ag Mazak rejects discriminatory austrian advertising restrictions on gambling
EGBA welcomes today’s opinion of Advocate General (AG) Mazak stating that the Austrian restrictions are discriminatory and a potential hidden total ban for cross border advertising. According to AG Mazak, in the Hit and Hit Larix case (C-176/11) at the Court of Justice of the European Union (CJEU):
“[T]he Austrian legislation making the grant of a permit to advertise [foreign] casinos […] subject to the condition that the legal protection […] corresponds to the protection under Austrian law constitutes an obstacle to the freedom to provide services” (para 12).
“[…] I wish to repeat my doubts as to the possibility of actually comparing the level of protection of gamblers in different legal systems, given the lack of harmonisation in the area of gambling and games of chance, as well as the diversity of national legislation in this area” (paras 10, 24).
“[A] system of prior authorisation in question could represent a ‘hidden’ total prohibition of the advertising of foreign casinos” (para 24).
“[T]he system of prior authorisation in question leads, ultimately, to a discrimination based on the origin of the applicant” (para 25).
AG Mazak criticizes that “the grant of a permit depends solely on the content of the legislation of the Member State, without taking account of the actual level of protection provided by the casino operator” as operators “have no influence over” the level of player protection within the national legislation (para 26).
EGBA Director for Regulatory Affairs Maarten Haijer comments: “We welcome AG Mazak’s opinion also for pointing out that the actual level of protection provided by the operator should be considered. All EGBA members comply with the agreement on Responsible Remote Gambling Measures that was agreed in the context of the European Standardisation Committee.”
Haijer further adds: “The AG confirms that assessing whether consumer laws in different Member States are equal is highly doubtful in practice due to the lack of harmonisation at EU level. It also begs the question why European consumers are still subject to different protection levels. It is time to agree on a common set of European consumer protection rules for gambling.”(1)
The Austrian Gambling Act had previously banned all advertising for non-Austrian based gambling operators. After its amendment in 2009, in reaction to an infringement procedure of the European Commission, it only allows cross-border gambling advertising, if the level of consumer protection in the foreign Member State is at least equal to the Austrian protection. AG Mazak is of the opinion that this provision is against EU law.
AG Mazak’s opinion is not binding but will be considered by the Court in its final ruling. The ruling is expected before summer 2012.