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The Austrian gambling legislation criticised by Sharpston

The EGBA association of European gaming and betting operators has welcomed Advocate General Sharpston’s criticism of a lack of consistency in Austrian gambling legislation.

Sharpston said national gambling legislation should be consistent and that it is up to the Member States to provide the necessary evidence to this effect.

The Austrian gambling system has already been subject of a number of court cases on both a national and EU level.

Sharpston recalled constant Court of Justice of the European Union (CJEU) case-law that “the burden of proving that the restriction is proportionate rests with the Austrian authorities”, in particular to provide all necessary evidence that there has been a problem in Austria at the time and the national measure might solve the issue.

Sharpston cited “advertising that encourages gambling by trivialising it, giving it a positive image or increasing its attractiveness aims to expand the overall market for gaming activities rather than channelling the existing market to certain providers” before adding: “Such an expansionist commercial policy is plainly inconsistent with an aim of achieving high level of protection for consumers.”

Sharpston also recalled settled CJEU case-law that the violation of EU law “preludes the imposition of criminal penalties for infringing the restriction”.

Sharpston also reviewed the national law in regards to obligations under the EU Charter of Fundamental Rights.

“It becomes clear from today's opinion that the AG does not consider the Austrian gambling legislation as fulfilling the consistency requirement in order to comply with EU legislation and existing jurisprudence,” EGBA’s secretary general, Maarten Haijer, said.

“By reaffirming the obligation for national regulation to be consistent, the opinion once again confirms the ‘red lines’ of EU jurisprudence that member states cannot cross. It reinforces the need for the European Commission to fulfill its role as guardian of the treaties, including by making use of infringement procedures where needed.”