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, granted 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 open to all, they have problems to operate in countries that lack of regulation in this regard. At first, one might think that this hits full 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 a special economic activities, and has repeatedly 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, offering a variety of online gaming services. In Portugal there is an exclusive concession to the Department of Jogos da Santa Casa de Misericordia of Lisbon (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 web of bets for this entity, so that the direction of the bookmaker Portuguese decided to fine both organizations for having promoted, organized and operated electronic gambling, with the granting of these licenses the exclusive power of the state.

Given this decision, International Bwin Portuguese League Ltd and each brought to the jurisdiction of Portugal. Admitted latter, the Court raised a question to the European Court of Justice (ECJ), asking whether the Portuguese legislation, to grant exclusivity to the bookmaker quoted a monopoly on the game, was violating the Principle of Freedom 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 suitable for securing the objective and (3) does not go beyond necessary to achieve this goal. Since the play of a harmonized economic activity, for each State to prove this right. 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 betting.

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 induce and encourage consumers to participate in lotteries, gambling and other Gambling that the Treasury derive economic benefit, the authorities of that State are not entitled to invoke public policy as the reason for the need to reduce social gambling opportunities. "

Concerning the second reason (to prevent fraud) and in response to the need for the restrictive measure must be proportionate to the purpose, "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 concessions 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 that 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 this type of games (addiction, financial problems ...) and use the proceeds 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 made in a safe and controlled.

The Bwin LPFP and argue that there is no justification for limiting the right of the second to provide the service free online game, considering that the real reason is to obtain the benefits of play, because if they admitted to other entities participating in this state sector income from this activity would be diminished significantly. They also consider that even admitting the purposes claimed by the Portuguese Government as sufficient, they may also be achieved by allowing others to enter to participate in the sector through a number of concessions.

In October 2008, published the findings of the case by the Attorney General, the appeal brought before the ECJ. We follow the same line is exposed by this body in Gambelli and Placanica cases, however, progress was made regarding the fact that the entities operating on the Internet: the assumption that governments restrict the free provision of services justified by overriding the extension of the special rules for the Internet 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 States may legislate, but to be affected entities that do not have Portuguese nationality, must be notified to the Commission. By not doing so, Bwin could not be bound by Portuguese law.

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

Photo: Ulrik De Wachter (sxc)