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The General Law on EU Fundamental Freedoms and the Conditions of Their Restrictions

  • Simon Planzer
Chapter
Part of the Studies in European Economic Law and Regulation book series (SEELR, volume 1)

Abstract

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.

Keywords

Member State National Court Advocate General Proportionality Test Mandatory Requirement 
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

Bibliography

  1. Schrauwen, A. (Ed.) (2005). The rule of reason and its relation to proportionality and subsidiarity (The Hogendrop Papers). Groningen: Europa Law Publishing.Google Scholar
  2. Emiliou, N. (1996). The principle of proportionality in European law – A comparative study. The Hague/London/Boston: Kluwer Law International.Google Scholar

Copyright information

© Springer International Publishing Switzerland 2014

Authors and Affiliations

  • Simon Planzer
    • 1
  1. 1.Lecturer in LawUniversity of St.Gallen HSGSt.GallenSwitzerland

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