The European Court of Justice’s (ECJ) Advocate General, Yves Bot, has opined that a Portuguese law conferring a State internet gambling monopoly may be legal under EU law, if certain conditions are met.
Portuguese law conferred a State gambling monopoly on Santa Casa de Misericórdua de Lisboa, a non-profit organisation, and later extended this monopoly to cover gambling conducted over all forms of communication, including the internet. Two companies, Bwin, an online gambling company based in Gibraltar and the Liga Portugesa de Futebol Profissional, were subsequently fined for infringing Portuguese law after they offered “mutual betting by electronic means” and advertised these services. Both companies challenged the fines and the Portuguese law extending Santa Casa’s exclusive State gambling monopoly to cover the internet. The Portuguese court referred the case—the first to question the extension of a State gambling monopoly to the internet—to the ECJ, where it is currently pending.
ECJ Advocate General Bot issued a non-binding advisory opinion. As a preliminary matter, Advocate General Bot opined that the legislation should be notified to the European Commission because it falls within the scope of the Information Society Directive. As regards the substance of the Portuguese law, Advocate General Bot opined that Portugal’s legislation extending the State gambling monopoly to cover the Internet would be consistent with EC law if it were justified by—and necessary to secure—an overriding public interest and was not discriminatory in practice. While these conditions are for the national court to apply, Advocate General Bot opined that Portuguese law satisfied them; i.e., the law was justified on the basis of consumer protection and ensuring public order and it is both proportionate and non-discriminatory.
The ECJ is not obliged to follow Advocate General Bot’s opinion. If, however, it upholds the right of a Member State to extend a State gambling monopoly to cover the internet, it could have far-reaching consequences for private gaming companies. Private gaming companies have long fought against State gambling monopolies, arguing that they preclude them from competing in violation of EU law.