Austrian legislation establishes a State monopoly over games of chance, with the effect that the right to organise and operate games of chance is, in principle, reserved to the State. The federal law in force is intended, in particular, to regulate games of chance with a view to their supervision and to enable the State to derive the maximum amount of revenue from them. The Federal Minister for Finance is permitted to grant a total of 12 concessions entitling their holders to organise and operate gaming establishments.

In Germany, jurisdiction over gambling is divided between the federal State and the Länder. In most of the Länder, there is a regional monopoly for the organisation of sporting bets and lotteries, while the organisation of bets on horse racing and the operation of gaming machines and casinos are entrusted to duly-authorised private operators.

“Win a holiday to the Caribbean! Only if you buy a packet of 10 chocolate bars today!” or “Sign a broadband contract today and win concert tickets to see your favourite singer” – companies have been playing with fire by using advertising slogans such as these ones. Although tying a competition to the purchase of a certain product is nothing new, in the past companies have always had to offer an alternative means of taking part in the competition (e.g. by sending in a postcard).

Advocate-General Yves Bot did not let down the monopolists in his final opinions on the Dutch preliminary ruling procedures. As expected, the final opinions on 17 December 2009 followed the previous example of his final opinions in the proceedings C-42/7 (Liga Portuguesa) on 14 October 2008. Again they were clearly to the detriment of transnationally active gambling providers, in this case UK-based companies Betfair (case C-203/08) and Ladbrokes (case C-258/08).

The original proceeding in Austria concerns a criminal procedure against Mr. Engelmann (a German citizen) who operated casino games in the Austrian city Linz without disposing of a concession delivered by the Austrian Ministry of Finance (BMF). The Court had expressed its doubts as to the conformity of the Austrian gaming monopoly with Community law and, in consequence, submitted three preliminary questions to the European Court of Justice:

In its press release “Administrative Court of Schleswig – just as the EU Commission – sees a violation of EU law and has submitted European-law questions relating to the new sports betting monopoly to the ECJ”, Hambach & Hambach informed the public for the first time of the ECJ case Carmen Media (C-46/08) represented by the law firm. On 8 December 2009, only slightly less than 2 years later, the La Grand Salle at the European Court of Justice was the centre of (European) gambling (law):

In addition to the references of two Dutch supreme courts (cf. German Gaming Law updated, no. 106 and 107), the French Council of State (Conseil d’État), in its capacity as France’s supreme administrative court, has referred questions regarding the compatibility of a betting monopoly with Community law to the European Court of Justice (ECJ) for preliminary ruling (order of 9 May 2008, decision no. 287503). The proceedings were initiated by the Malta based bookmaker ZETurf (Zeturf Limited)…

The European Court of Justice (ECJ) has recently held that commissions paid to a sports betting agent is not exempt from VAT (order of 14 May 2008, Joined Cases C-231/07 and C-232/07). The Brussels Court of Appeal (Cour d’appel Bruxelles) had asked the ECJ for clarification as to whether an exemption pursuant to Art. 13 part B letter d no. 3 of the Sixth Council Directive 77/388/EEC should be considered, according to which the supply of certain financial services relating to turnovers resulting from the transfer of bets are exempt from VAT.

In addition to the Dutch reference to the European Court of Justice (ECJ) by the Supreme Court of the Netherlands in the case of Ladbrokes (cf. German Gaming Law updated no. 106), the Raad van State, in its capacity as the highest administrative court of the Netherlands, has referred a case to Luxembourg (decision of 14 May 2008, file-no. 200700622/1). This reference has been filed with the ECJ as Case C-203/08. The referral is based on administrative proceedings between the world’s largest betting exchange Betfair (Sporting Exchange Ltd.) and the Dutch Minister of Justice.

The Netherland High Court (Hoge Raad der Nederlanden), the highest Dutch court for civil- and penal cases referred a case regarding the cross-border offer of sports bets for preliminary ruling. The referral is based on proceedings between the private bookmaker Ladbrokes and the Dutch gambling monopoly operator De Lotto. In 2002 Ladbrokes was restricted from accepting sports bets form Dutch citizens. The High Court (Hoge Raad) referred three questions to the ECJ:

The barriers against the cross-border offering of sports betting and gambling erected by the EU (and EEA) Member States have been under strict scrutiny by the European Commission for several years. The Commission judges numerous national provisions to be in breach of Community law and has therefore already initiated infringement proceedings against several Member States, including Germany (two proceedings, one relating to the sports betting monopoly and one relating to the new Interstate Treaty on Gambling) and Austria.

After the Austrian regional court of Linz’s reference for preliminary ruling regarding the monopoly on casinos other proceedings regarding the licensing procedure for casinos have just recently been referred to the European Court of Justice (ECJ) for preliminary ruling, this time from Greece (Case C-145/08 — „Club Hotel Loutraki“). The reference for preliminary ruling by the Symvoulio tis Epikrateias involves the question whether Community procurement law…