The General Law on EU Fundamental Freedoms and the Conditions of Their Restrictions
The Court of Justice of the EU has dealt with gambling issues as a matter for fundamental freedoms. According to the general case law, Member States can justify restrictions based on the Treaty provisions, in particular public policy, public security and public health. In addition, the Court of Justice has recognised a number of justification grounds in its case law, so-called ‘mandatory requirements’. The differences between the two tracks are explained.
The chapter outlines the Court’s varying practice regarding the principle of proportionality. In non-harmonised areas, the Court regularly leaves it to the Member States to define the protection level of the public interest goal. It often leaves it to the referring court to make final conclusions regarding the proportionality of the measures, yet offers guiding criteria that the national court will have to consider in its suitability and necessity assessments.
The chapter pays special attention to the doctrine of the margin of appreciation, which has played a crucial role in the gambling case law. The chapter presents the doctrine, namely its notion and origin, its relationship to the principles of subsidiarity, judicial review and proportionality, and finally, the reasons for which it is practised. It is shown that the doctrine has been strongly shaped by the European Court of Human Rights. Commonalities and differences between this court and the Court of Justice are discussed. It is explained why the latter is entitled to apply a rather narrower margin of appreciation when confronted with similar justification grounds as the European Court of Human Rights.
KeywordsMember State National Court Advocate General Proportionality Test Mandatory Requirement
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