With unofficial spending by Polish online gamblers estimated at €1bn in 2010, any potential chink in Poland's strict regulatory regime, which prohibits all online gambling save for online betting, deserves to be fully exploited by gambling operators. And given that such a chink appears to have been exposed recently by the European courts, we expect that operators are one step closer to gaining a foothold in the lucrative Polish online gambling market.
The case giving rise to this new sense of optimism in Poland involved a challenge to the legality of certain aspects of the Gambling Act 2009 and was brought by Polish operators Fortuna, Grand and Forta.
In the ruling on joined cases C-213/11, C-214/11, C-217/11 the CJEU ruled that Poland had failed to comply with EU law by not notifying the 2009 Act to the European Commission. The Court confirmed that the provisions at stake "are capable of constituting 'technical regulations'…drafts of which must be the subject of communication" (paragraph 40) in line with Directive 98/34.
Poland made further changes to the gambling regulatory framework in the Gambling Act 2011. It prohibits online gambling and introduces demanding regulatory requirements. Like the 2009 Act, the 2011 Act also has not been notified to the EU.
Compliance with EU law is a constitutional requirement for every act in Poland. Polish courts and authorities are legally obliged to assess constitutional compliance of acts at all times when delivering a verdict or a decision. Given that the European Commission, EGBA and operators have all expressed views that the 2011 Gambling Act does not comply with EU law and that we now have the CJEU's decision concerning the 2009 Act, there is every reason to believe that the 2011 Act may now be successfully challenged in Poland.