(3) Whosoever in cases under subsection (1) above acts ‘(1) Whosoever without the authorisation of a public authority publicly organises or operates a game of chance or makes equipment for it available shall be liable to imprisonment of not more than two years or a fine. Paragraph 284 of the Strafgesetzbuch (German Criminal Code, ‘StGb’) provides as follows: In Germany, powers relating to gaming are shared between the Federal State and the Länder, in most of which there is a regional monopoly for the organisation of sports betting and lotteries, while the operation of slot machines and casinos is entrusted to duly authorised private operators.Ĩ. The fact that there is no secondary law means that recourse must be had to primary law and, in particular in the present case, Article 49 EC, the first paragraph of which provides that ‘restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended’.ħ. Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market ( 3) expressly excludes gaming from its ambit: ‘this Directive shall not apply to the following activities: … (h) gambling activities which involve wagering a stake with pecuniary value in games of chance, including lotteries, gambling in casinos and betting transactions’ (Article 2(2)).Ħ. The gaming sector is not at present harmonised in Community law. Secondly, the Court must give a ruling on the possibility of applying the principle of mutual recognition to national licences for the organisation of sports betting.ĥ. In the present cases the Verwaltungsgerichte (Administrative Courts) of Giessen and Stuttgart have asked the Court to give a ruling, first, on the compatibility with Community law of the monopoly of sports betting and lotteries that exists in Germany, because they consider that the national policy of limiting gaming suffers from a presumed lack of consistency.
The Court, in replying to questions referred for a preliminary ruling, has to give them guidance in that difficult task.Ĥ. In the final instance it is they who have to examine, from the viewpoint of Community law, legislation restricting access to the gaming market in a Member State. In spite of a marked increase in decided cases, there is still not a sufficient basis in case-law to resolve the different situations which are brought before the national courts every day. In the present case the absence of secondary law is a decisive factor compelling the courts to refer directly to the treaties.
The questions considered here are clear proof of this, like many other questions which have already been referred to the Court. ( 2)ģ. All those elements are present in the gaming sector: that is why it should be no surprise that the sector is highly litigious and will probably continue to give rise to disputes in the future. A sector for which the law is not harmonised and the case-law is based on individual cases.Ģ. A service which, thanks to new means of communication, finds it easy to cross frontiers. An industry worth thousands of millions of euros involving a harmful and culturally sensitive activity.
(Freedom to provide services – Games of chance – Consistency of national policy concerning gaming – Activity of organising sports betting subject to licence – Mutual recognition)ġ. (Reference for a preliminary ruling from the Verwaltungsgericht Stuttgart (Germany)) (Reference for a preliminary ruling from the Verwaltungsgericht Giessen (Germany))