On 20 February 2018, the Court of Justice of the European Union (“CJEU”) published a judgment which upheld an earlier decision of the General Court rejecting an appeal by the Belgian state to annul a European Commission ("Commission") recommendation dealing with consumer protection in online gambling.

The recommendation in question was adopted by the Commission on 14 July 2014 and sets out principles for the protection of consumers and players of online gambling services and for the prevention of minors from gambling online (the "Recommendation") (see our update here). It includes guidelines on information requirements for operator websites, age verification checks to prevent minors having access to online gambling and the inclusion of health warnings in advertising. Member States were invited to notify the Commission of any measures taken pursuant to the Recommendation within 18 months in order for the Commission to evaluate its implementation.

Belgium sought to have the Recommendation annulled by the Court on grounds that it goes beyond a mere suggested course of action for Member States and is in fact intended to bring about the harmonisation of services in the online gambling sector.

The Commission argued that Belgium’s appeal was inadmissible on the ground that the Recommendation is a ‘genuine’ recommendation within the meaning of Article 288 TFEU, which has no binding force and does not impose any binding obligations. Advocate General Bobek delivered an opinion in December 2017 which disagreed with this argument, finding that in fact there were many elements of the Recommendation which, taken together, suggested that the Commission intended it to produce legal effects and to induce compliance beyond mere policy suggestions.

The CJEU did not follow AG Bobek’s opinion and rejected Belgium’s case. While the case confirms that the Recommendation is not legally binding, in a statement the European Gaming and Betting Association (“EGBA”) lends support to its implementation, stating that the guidelines are “an important tool to encourage Member States to apply a high and consistent level of consumer protection for online gambling activity in the EU”.