261012_football The betting and gambling are regulated differently in each of the Member States of the European Union. Although many of these countries develop these activities, there is (to date) no directive at EU level to regulate regulate.

Some national laws have opted for a total ban on betting and gambling. Most attach to one or more institutions exclusive rights to operate in this sector, usually for the benefit of a de facto monopoly in favor of the national lottery and betting.

Given these restrictions, bookmakers located and licensed in countries where the game is total openness, are having trouble operating in countries without regulation accordingly. At first, one might think that it automatically hits with one of the fundamental principles of the common market, freedom to provide services.

The Court of Justice (ECJ) describes the betting and gaming and as special economic activities, and on several occasions has admitted the possibility of limiting the freedom to provide services, although there must be a reason precedence over such a restriction.

One of the most prominent recent cases is the bookmaker Bwin International Ltd (Bwin) in Portugal. This well-known bookmaker, has its registered office in Gibraltar and offers a variety of online gaming services. In Portugal there is an exclusive concession to the Department de Jogos da Santa Casa de Misericordia de Lisboa (equivalent to State Lotteries and Betting in Spain), nonprofit institution that allocates the profits to social projects.

Within its policy of expansion and marketing, Bwin entered into sponsorship contracts with the Portuguese Football League (LPFP) which was advertised by the betting site of this entity, so that the direction of the bookmaker Portuguese decided to fine both entities for having promoted, organized and operated electronic gambling, with the granting of these licenses an exclusive power of the state.

Given this decision, Bwin International Ltd and the Portuguese League brought proceedings before the jurisdiction of Portugal. They admitted, the Court raised a question to the European Court of Justice (ECJ), considering whether the Portuguese legislation, to grant exclusivity to the bookmaker quoted a monopoly on the game, was violating the principle of free provision of services, enshrined in the Treaty establishing the European Union.

The restriction of free provision of services is supported by European legislation if (1) is justified by an overriding public interest, (2) is adequate to ensure the attainment of the objective and (3) not beyond necessary to achieve this objective. Since the play of a harmonized economic activity, for each State to prove that reason. Usually, they often wield grounds of consumer protection with gambling problems and / or prevention of fraud in sporting events, which could be altered by the amounts of money moving in the bookmakers.

In previous cases, European case law gave the keys to realize the validity of these reasons. Thus, in Case Gambelli and Placanica cases, the ECJ considered insufficient reason for consumer protection because "as long as the states themselves incite and encourage consumers to participate in lotteries, gambling and other gambling for the Treasury to obtain economic benefits, the authorities of that State are not entitled to invoke public policy as a reason relating to the need of reducing gambling opportunities.

Concerning the second reason (to prevent fraud) and in response to the need for the restrictive measure must be proportionate to the aim pursued, "although the objective pursued by the authorities of a Member State is to avoid the risk of gaming licensees is involved in criminal or fraudulent activities, exclude the possibility that limited liability companies listed on regulated markets in other Member States to obtain licenses for the management of sports betting, especially when there are other ways of monitoring the accounts and activities of those companies, it may be a measure which goes beyond what is necessary to prevent fraud. "

In the case of Bwin and LPFP, the Government argues that the restriction of competition is justified in that its aims are to prevent social risks associated with these types of games (addiction, financial problems ...) and use revenues to cases of interest social. The fact that extend the monopoly to the Internet is justified in that it is a necessary step for online games are made secure and controlled.

The Bwin LPFP and argue that there is no justification for limiting the right of the second to freely provide the online gaming service, believing that the real reason is the profit of the game, because if they admitted to other entities involved in this sector state revenues from this activity would be significantly diminished. They also consider that even assuming for the purposes claimed by the Portuguese Government as sufficient, they could also be achieved by allowing other entities to participate in entering the sector through a number of concessions.

In October 2008 published the findings of the case by the Attorney General, the action brought in the ECJ. It follows the same line put forward by this body in Gambelli and Placanica cases, however, progress was made regarding the fact that the entities operating on the Internet: admitting that governments restrict the free provision of services justified by overriding , the extension of special rules for the Internet that requires notification to the European Commission, because it is one of the "technical regulations" which spoke of Directive 98/34 of the European Parliament. It is a special subject on which the States may legislate, but to be affected entities have no Portuguese, must be notified to the Commission. By not doing so, Bwin could not be bound by Portuguese law.

Pending the ECJ ruling, Bwin continues to operate on European territory against other laws, such is the case in Germany where he was forbidden to provide online gambling services. One consequence of the ban went through the same Real Madrid, who was fined for playing in Bremen sporting Bwin.com advertising.

Photo: Ulrik De Wachter (sxc)