In 2004, the Swedish Supreme Court ruled that the country’s law defending its gambling monopoly was in line with the European Community (EC) Treaty. A few years and a few lawsuits later, the Supreme Court has become unsure about this ruling, and has ordered the Court of Appeals to verify that the Swedish Lottery Law – which protects national monopoly Svenska Spel – is indeed in agreement with supranational EU law.
According to the Gaming Intelligence Group, the Swedish Court of Appeal then issued five questions for the European Court of Justice aiming to find out if Swedish limitations on foreign gaming providers are permissible under EC rules. These questions are allegedly “the most comprehensive set of questions to date to be put to the ECJ.”
This is the text of the five questions:
- Can discrimination by reason of nationality be passed under any circumstances on national gambling and lottery markets due to coercive consideration for the interest of the public?
- If several reasons for the restrictive laws on the gambling and lottery market exist and one of them is the financing of social activities, can this be said to be an incidental beneficial consequence of the restrictive laws? If the answer is no, can the restrictive laws be said to be acceptable if the purpose to finance social activities cannot be said to be the main reason for the restrictive laws?
- Can the state refer to coercive consideration for the interest of the public as a reason for restrictive gambling laws if state owned companies market games and lotteries whose income benefits the state and one of several purposes of this marketing is the financing of social activities? If the answer to this question is no, can the restrictive laws still be acceptable if financing of social activities is not deemed to be the main reason for the marketing?
- Can a total ban on the marketing of gambling and lotteries organized in another member state by a company licensed and controlled by the authorities in that state be proportionate for the purpose of controlling and supervising gambling when there are no restrictions on the marketing of games and lotteries organized by the company licensed in the state practicing the restrictive laws? What is the answer to this question if the purpose of this arrangement is to limit gambling?
- Has a gambling company licensed and controlled by the competent authorities in one country the right to market its products in other member countries, for instance by advertising in newspapers without first applying for permission to do so from the competent authorities in those countries? If the answer to this question is yes, does this mean that a member country’s regulation which is intended to penalize the promotion of participation in lotteries organized in foreign countries is an obstacle to the freedom of consideration of the public interest? Will the answer to the first question be different if the country in which the gambling company is licensed invokes the same consideration for the interest of the public as the country the company wants to market its gambling services in?
Nobody is holding their breath waiting for the ECJ’s answers – experts estimate they may take 18 to 24 months to be issued. Stefan Widmark, Partner at Mannheimer Swartling and Sweden’s main lawyer in this case, looks forward to the ramifications of this probe:
It will take time, but from the moment these questions are raised, the debate will be elevated to a totally new level. It is a very important development that the Swedish court has been brave enough to face its responsibilities and enter this debate after years of intransigence.
He is right about the debate entering a new level: it is speculated that EU members with state gaming monopolies (such as Germany, France and Portugal) could rise against this case, and it is also expected that all major private operators will rally to ensure the case is heard. The answers to these questions could potentially lead the way for an open and regulated gaming market in the EU.
