According to the latest ruling of the European Court of Justice, an EU Member State cannot prohibit gambling advertising from another Member State merely on grounds that the protection guaranteed in that Member State is not identical to the domestic rules.
The court based its decision of 12 July 2012, on the HIT and HIT Larix case (C-176/11), where Austrian authorities rejected an advertising permit application submitted by a casino operated in Slovenia.
The clarifications provided by the ruling on how Member States must address cross border gambling advertising include:
* When granting advertising permits "the levels of protection for gamblers that exist in the various legal systems concerned must first be compared."
* A Member State can require that "the applicable legislation ensures protection against the risks of gaming that is in essence of a level equivalent to that which it guarantees itself". However, it is specified that it cannot require "the rules in the other Member State to be identical" to its own, which would be disproportionate.
Also, Member States "cannot impose rules not directly related to protection against the risks of gaming". And if they do impose rules that protect incumbents, these measures cannot justify restrictions of the freedom to provide services as decided in the recent Costa and Cifone ruling (C-72/10).
In the opinion of the trade body European Gaming and Betting Association, this ECJ ruling is another illustration of the need for harmonisation of online gambling laws in the EU.
The organization also underlined that its members comply with the EGBA Standards and the Responsible Remote Gambling Measures set out by the European Committee for Standardisation, most of which surpass the requirements set out in national gambling legislations.
It was stated by EGBA Secretary General Sigrid Ligné regarding the ECJ ruling: "It confirms that Member States cannot regulate the gambling market in isolation but need to take into account protection guaranteed by other Member States.
“Today's ruling once again shows that consumer protection rules for gambling are fragmented in the EU, which might be good for lawyers, but it´s certainly not in the interest of consumers. It highlights the urgency of European Commissioner Barnier´s proposal to develop a common European base of principles and measures of protection, so that all citizens are protected, wherever they are and whichever legal site they are connecting to.”
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