Scope of Application in EU Gambling Law
This chapter examines different dimensions of the scope of application. Do gambling-related facts bring that matter within the scope of application of EU law? Which fundamental freedoms apply to the field of games of chance? When do the games in question qualify as games of chance?
With regard to the first dimension, the chapter notes that counsels of several governments were initially of the view that gambling services did not fall within the scope of EU law. While the Court of Justice disagreed, it nevertheless accepted a ‘peculiar nature’ of gambling services, an aspect that is dealt with throughout this book.
The cases before the Court of Justice have mostly regarded the freedom to provide services and the freedom of establishment. The chapter explains the delimitation between the (mere) provision of services and actual establishment in the area of online gambling. Even if an operator decided to set up certain computer support infrastructure, such as servers, the facts of the case may still fall under the provisions of the freedom to provide services.
Finally, the chapter examines under which conditions games qualify to be assessed in the light of precedent on gambling, including a wide discretion for national authorities. The Court deviated from its gambling precedent in cases touching upon prize competitions (puzzles) as well as games that were not played for the prospect of winning money. The chapter further argues that the Omega case, often portrayed as a gambling judgment, significantly differed from gambling characteristics: it involved games of skill and dealt exclusively with public morality concerns.
KeywordsCriminal Proceeding Gambling Activity Condition Game Lottery Ticket Fundamental Freedom
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