Abstract
To determine the evolution of the jurisprudence of the European Court of Justice (ECJ) on ‘sports betting’ is a complex task. In this contribution, an innovative method of research the purpose of which is to facilitate that effort considerably, is presented. The method starts from the fact that the ECJ jurisprudence is based on the stare decisis principle which is expressly applied by the Court when it makes references to the sources used, that is its previous decisions and the relevant paragraphs therein. The traditional method of academic analysis shows how the jurisprudence evolved from the first ‘sports betting’ case up to and including the at the time of his writing most recent one. According to the alternative method it is preferred to reverse the chronological order of study, starting from the most recent case and going back to the first one. This operational method is similar to the approach taken by the Court when drafting a new decision. The new method is supposed to be a more objective, neutral, non-arbitrary and non-impressionist combination of close reading and feed-back; it might be called the ‘reversal’ or ‘retrospective’ method. This method allows us to determine which paragraphs in previous decisions are most important (or relatively important). In this contribution, the ‘reversal’ method is systematically and consistently tested in practice. What is the essence of the jurisprudence of the ECJ on sports betting, on the basis of the application of this method?
This contribution is an elaborated version of a paper that was presented by this author at the 6th international seminar on Sports Law and Taxation organised by NOLOT, Amsterdam, 4 December 2009. Since that time, the ECJ produced new jurisprudence on sports betting such as the Ladbrokes, Sporting Exchange (‘Betfair’), Otto Sjöberg and Anders Gerdin v. Swedish State, and Carmen Media rulings. The information on the new case-law was added and incorporated in this contribution.
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Notes
- 1.
In: Gardiner et al. (2009). A partly adaptation of this Article will appear in print under the title: “European Union Law, Gambling, and Sport Betting. European Court of Justice Jurisprudence, Member States Case Law, and Policy”, in: Anderson et al. (2011). A general work of reference on EU law and gambling/betting is: Littler and Fijnaut (2007).
- 2.
A short overview on ‘Sports Betting and European Law is presented by Marios Papaloukas in: Papaloukas (2010).
- 3.
Kaburakis (2009), p. 560.
- 4.
Idem.
- 5.
Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, O.J. 2006 L 76/36.
- 6.
Similarly, Article 1(5)(d) of the E-commerce Directive, Directive 2000/31/EC of 8 June 2000, O.J. 2000 L.17/1.
- 7.
EL = European Lotteries, which is the non-profit-making association representing the state-licensed lotteries and toto companies In Europe.
- 8.
Cf., Case C-67/98, Judgment of the Court of 21 October 1999, paras 3–7 of the preliminary ruling, ECR (1999) I-07289.
- 9.
Cf., Case C-243/01, Judgment of the Court of 6 November 2003, paras 7–15 of the preliminary ruling, ECT (2003) I-13031.
- 10.
Cf., Joined cases C-338/04, C-359/04 and C-360/04, Judgment of the Court of 6 March 2007, paras 2–14 and 18–31 of the preliminary ruling, ECR (2007) I-1891.
- 11.
Cf., Case C-260/04, judgment of the Court of 13 September 2007, paras 2–10 of the preliminary ruling, ECR (2007) I-7083.
- 12.
Cf., Case C-42/07, Judgment of the Court of 8 September 2009, paras 3–28 of the preliminary ruling, ECR (2009) I-7633.
- 13.
Cf., Case C-203/08, Judgment of the Court of 3 June 2010, paras 3–19.
- 14.
Cf., Case C-258/08, Judgment of the Court of 3 June 2010, paras 3–13 of the preliminary ruling.
- 15.
Cf., Joined Cases C-447/08 and C-448/08, Judgment of the Court of 8 July 2010, paras 3–25 and 27 of the preliminary ruling.
- 16.
Cf., Case C-46/08, Judgment of the Court of 8 September 2010, paras 3–25 and 38.
- 17.
See, for a discussion whether sports law exists, whether there is a sports law, and what it is, what it consists of, the author’s inaugural lecture as professor of International and European Sports Law at the School of Law of Erasmus University Rotterdam, 10 June 2010; see for the English-language version, Siekmann ( 2011).
- 18.
Cf., also in this context, the CAS award of 20 August 1999 in AEK Athens and Slavia Prague v. UEFA (CAS 98/200), para 35 (ENIC case): ‘The ratio of the rule [the UEFA ban on the multiple ownership of clubs/teams competing in the same competition; RS] is manifest: if two or more clubs participating in the same contest are under control of or managed by one single entity, there is cause for concern that in a given situation the existence of opposing interests which underlies any sport competition will not be apparent. For instance, should two clubs under joint control or ownership meet at a certain stage of the competition, the public’s perception of the authenticity of the result would be jeopardised. In the present case, for example ENIC’s business interests in the field of the provision of betting services could be seen by some as an obstacle to the development of fair competition on the pitch.’
- 19.
Commission Staff Working Document—The EU and Sport: Background and Content, Accompanying document to the White Paper on Sport (2007), p. 109.
- 20.
Accompanying document, at p. 105.
References
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Siekmann, R.C.R. (2012). Sports Betting in the Jurisprudence of the European Court of Justice: A Study into the Application of the Stare Decisis Principle, or: The Application of the ‘Reversal Method’ of Content Analysis and The Essence of the ECJ Case Law on Sports Betting. In: Introduction to International and European Sports Law. ASSER International Sports Law Series. T.M.C. Asser Press. https://doi.org/10.1007/978-90-6704-852-1_5
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