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Free movement of services: Commission inquires into Danish restrictions on sports betting

Friday 2nd April 2004

The European Commission has decided to send Denmark an official request for information on its legislation, adopted on 26 March 2003, which prohibits the supply or advertisement of, and the facilitation of participation in, gambling services offered by providers licensed in other Member States. Danish law restricts in particular the provision of sports betting services. The Commission intends to verify the compatibility of the ban in question with the provisions of the EC Treaty on the free movement of services and on the freedom of establishment. The Commission's request will take the form of a letter of formal notice, the first step of an infringement procedure under Article 226 of the EC Treaty. Denmark will be asked to respond within two months. If the Commission were not satisfied with the response, it could send a formal request (known as a reasoned opinion) for the system to be changed and if Denmark did not comply, the Commission could take the case to the European Court of Justice.

The prohibition introduced by the Danish Act on Certain Games, Lotteries and Bets (Lov om visse spil, lotterier og væddemål, Law no 204 of 26 March 2003) renders it illegal for any service provider, operating under a gambling licence of another Member State than Denmark, to advertise, facilitate participation in or supply gaming services. The prohibition of advertising and the sale of advertising space to gambling providers applies to printed media, radio, television and information society services. The Danish law also prevents suppliers of the services concerned from providing them into Denmark from another Member State. The Commission is concerned that this could contravene Article 49 of the EC Treaty on the free movement of services.

The Danish legislation also makes it impossible for EU based providers of sports betting services to establish a presence in Denmark for example by setting up an office and to supply their services via that presence. In the Commission's view, this could contravene the principle of the freedom of establishment set out in Article 43 of the EC Treaty.

The Commission is therefore concerned that, on the basis of the available information, the Danish legislation in question could give rise to restrictions on establishment and on the cross-border provision of services which are disproportionate to general interest objectives recognised by the European Court of Justice (such as the protection of consumers or the maintenance of public order).

The Court's case law (see C-243/01, Gambelli) provides that national measures that may give rise to restrictions must seek to protect general interest objectives such as the protection of consumers or the maintenance of public order and that such restrictions must, in any event, seek to limit gaming services in a consistent and systematic way. In particular, the Court's case law indicates that a Member State cannot invoke the need to restrict its citizens' access to gambling if at the same time public authorities in that Member State incite and encourage people to participate in lotteries, games of chance and betting to the financial benefit of the public purse.

The latest information on infringement proceedings concerning all Member States can be found at the following site:

http://europa.eu.int/comm/secretariat_general/sgb/droit_com/index_en.htm






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