Non-EU compliant laws cannot be implemented using criminal law
The issues with Austrian online gambling laws continued after the first conclusions in September 2010 made by the European Court of Justice. Back then, the Court adjudicated that Austrian legislation on internet gambling was in discord with European laws because more transparency was required during the licensing process. On top of that, the legislation proscribed that a person who was granted a license must be present in Austria, a problem which can be found in some other new European online gambling regulations.
Concerning ECJ case C-347/09, Advocate General Bot stated that criminal law cannot be used for gambling law implementation, which does not follow EU laws. He added, “...a member state cannot enforce a criminal sanction in relation to an administrative formality [… which] is refused or made impossible by the member state concerned in violation of EU law. The obligation of mutual recognition of authorizations delivered in other member states would become relevant.” AG also brings to mind that a monopoly is only in agreement with EU laws if it implies a really high level of consumer protection, and that it may not trivialize gambling, or give it a positive image, promote the fact that revenues are used for public interest activities or promote big wins. And it’s not sure if Austria fulfills this criteria, considering the big spending for Lottery commercials, some 39.37 millions of Euros in 2010.
The AG’s comments aren’t binding, but The Court also validated that according to the EU Treaty, legalization is not allowed to "oblige [a] person to obtain a new license, without due account being taken of the fact that the conditions of issue are, essentially, the same as those which apply to the license already issued to that person in another EU Member State.” By forcing this process a Member State constitutes discrimination based on nationality, and using these double regulatory obstacles, countries go against fundamental EU law and the principle of trust and sincere.
A general secretary of the European Gaming and Betting Association (EGBA) Sigrid Ligné gave his opinion on AG’s statements: “The ECJ is continually refining its jurisprudence, as the recent critical rulings on the German and Austrian gambling legislation show. It provides ammunition to the European Commission to finally refer long-pending infringement cases against the gambling legislation of a series of Member States." He also emphasized the importance of law harmonization in EU, “The Green paper on online gambling confirms that the Internet provides more sophisticated possibilities to track the transactions of each player compared to off-line gambling formats, [and] it is time to work towards a sustainable solution and introduce EU harmonized rules for online gambling.”