Under Austrian law, the advertising of casinos located abroad requires prior authorisation. In order to obtain such a permit, the operator of a casino located in another Member State must prove that the legal protection for gamblers that is provided for in that State at least corresponds to Austrian legal protection.

The stringent Austrian legal scheme provides that :

  • only persons who have attained the age of majority may enter a casino;
  • the casino’s management must observe gamblers’ conduct in order to determine whether the frequency and intensity of their participation in gaming jeopardize the minimum income required for their subsistence;
  • the casino’s management has the duty to retain details of the client’s identity for at least five years; and
  • the customers may bring a direct civil action against the casino’s management for breach of those obligations.

Two Slovenian companies operating casinos in Slovenia applied for permits to carry out advertising in Austria for their casinos.

These applications were rejected on the ground that the applicants had not demonstrated that the Slovenian legal provisions ensured a level of protection for gamblers comparable to the level provided for in Austria.

Following a reference for preliminary ruling filed by an Austrian administrative Court with the Court of Justice of the EU on the compatibility of Austrian law with the freedom to provide services principle, the Court rendered an interesting judgment on 12 July 2012.

It examined whether the restriction onthe freedom to provide the services at stake may be allowed as a derogation from the prohibition provided for by the Treaty on the functioning of the EU.

It acknowledged that the legislation on games of chance is one of the areas in which there are significant moral, religious and cultural differences between the Member States. Accordingly, in the absence of legal harmonization in that field, the Member States are free to set the objectives of their policy on games of chance and to define in detail the level of protection sought.

The Court considered that such legislation can be found to be justified by the objective of protecting individuals from the risks connected with games of chance, recognised by the Court as an overriding reason in the public interest.

The Court recalled that, according to its well settled case law on services provided in such sensitive areas, the mere fact that a Member State has opted for a system of protection which differs from that adopted by another Member State cannot affect the assessment of the proportionality of the legal provisions adopted to that end. Those provisions must be assessed solely by reference to the objectives pursued and the level of protection which they seek to ensure.

Given that objective, the Court found it did not constitute an excessive burden for the operators of foreign casinos and is in compliance with the principle of proportionality.

In the light of these factors, the Court concluded that EU law does not preclude Austrian legislation requiring a proof of equivalence of the legal protection for gamblers in another Member State.

The assessment of the proportionality of the Austrian legislation would probably have differed if it required the rules in the other Member State to be identical or if it imposed rules not directly related to protection against the risks of gaming.