EU Law and Sport

Internal Market and Gambling Issues

Gambling and sport sectors have one thing in common: They are both regarded as “specific” by the European Court of Justice. In general terms, gambling activities contribute substantially to the whole financing of sport in the EU.

At EU level, the gambling issue has taken a new turn in the past two years. Various initiatives have been taken by the EU institutions in order to tackle this issue.

The European Commission started a series of infringement proceedings against Member States in the field of gambling in 2006. At this stage, procedures against 10 countries are still pending. The European Commission is currently assessing whether the measures taken by Member States in this sector (restrictions to the access of the gambling market, whether it is “physical” or “on-line gambling”) are compatible with EU law and article 49 of the EC Treaty in particular, which guarantees the free movement of services.
In parallel, the European Commission (DG Internal Market), as announced in the White Paper on Sport, will in 2009 launch a study on the financing of sport (recommendation 37 of the White Paper on Sport: “independent study… on financing of grassroots sport and sport for all in the Member States”). The European Commission published in March 2009 a call for tender regarding the EU study on internal market barriers to the financing of sport. The study will probably start during the summer of 2009 and end after 14 months, at the end of 2010. Among its main general objectives, the European Commission intends to assess the impact of gambling activities on the financing of sport in the EU.

The Council of the EU and the Member States also remain very active on this topic. In July 2008, formal discussions started through a working group on gambling. A progress report was published December 1, 2008: “Gambling and betting: legal framework and policies in the Member States of the European Union – Progress report”. The report provides a complete overview of the national state of play with regards to gambling. It is mentioned that “over half of the Member States have begun reforming their national legislation (Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Estonia, Finland, France, Hungary, Ireland, Lithuania, Poland, Romania and Sweden) or have recently carried out such a reform (Germany, Italy, Latvia, United Kingdom and, in 2002, Malta)”.
Although it is doubtful that any initiative will be taken at EU level within the Council of the EU, the monitoring of gambling issues will be continuing during the various presidencies of the EU. It is also crucial for Member States to share their concerns and best practices in this area, which will most probably be tackled at national level.

The European Parliament initiated in 2008 a report on the integrity of on-line gambling. The initiative report was adopted during the plenary session of the European Parliament on March 10, 2009. In the report, the European Parliament underlines those issues that are related to the financing of sport and the integrity of sport competitions. It “calls on the Member States to ensure that sports competition organisers, betting operators and regulators cooperate on measures to tackle the risks related to illegal betting behaviour and match-fixing in sport and explore the establishment of a workable, equitable and sustainable regulatory framework to protect the integrity of sports;” (point 9) It also “highlights that sports bets are a form of commercial exploitation of sporting competitions, and recommends that Member States protect sporting competitions from any unauthorised commercial use, notably by recognition of a sport organisers right, and put in place arrangements to ensure fair financial returns for the benefit of all levels of professional and amateur sport…;” (point 10).

The jurisprudence of the European Court of Justice has played a crucial role in the evolution of the gambling issue at EU level and within the Member States. The Gambelli (2003) and Placanica (2007) rulings are the most recent cornerstones of the ECJ’s position on gambling.
There are still numerous pending cases at the ECJ, mainly preliminary rulings, with regard to gambling. This shows the uncertainty surrounding the subject at the level of national jurisdiction. The next decision of the ECJ expected is on Case C42/07: Santa Casa da Misericórdia de Lisboa v Liga Portuguesa de Fuetbol Profissional (CA/LPFP), Baw International Ltd and Betandwin.Com Interactive Entertainment (preliminary ruling from the Tribunal Judicial da Comarca do Porto (Portugal). The opinion of the General Advocate BOT was published in October 2008.