EN Official Journal of the European Union CE 78/225

(2004/C 78 E/0229)

WRITTEN QUESTION E-3126/03

by Astrid Thors (ELDR) to the Commission

(23 October 2003)

Subject: The cross-border provision of gaming services for humanitarian causes

Although Article 49 of the Rome Treaty guarantees the freedom to provide services throughout the European Union, the European Court of Justice ruled that Member States have a right to impose restrictions on the cross-border provision of gaming services to safeguard their national public order. Nevertheless, this right is not an absolute one, and any restriction imposed must be necessary to achieve the objective pursued and must be proportionate.

In the Gambelli case, which is pending before the European Court of Justice, the Advocate General concluded in its opinion of 13 March 2003 that restrictions imposed on a UK established online bookmaker were discriminatory and not justified.

In light of the foregoing, does the Commission consider that, provided a duly established and licensed EU gaming service provider whose gains are used for humanitarian causes offers all the necessary guarantees in the field of consumer protection and measures against organised crime, cross-border restrictions of online gaming services supplied by it violate Article 49 of the Rome Treaty?

In this particular humanitarian context and considering the de facto cross-border nature of information society services, what initiatives will or can the Commission undertake to safeguard that the rules of the internal market would be applicable to such properly regulated, humanitarian services?

Answer given by Mr Bolkestein on behalf of the Commission

(18 December 2003)

The Commission notes that the European Court of Justice has recently ruled in the Gambelli case (C-243/01) that Member States may impose restrictions on the cross-border provision of services to protect general interest objectives such as the protection of consumers or the maintenance of public order. However, in line with the Court's jurisprudence, such restrictions are compatible with the EC Treaty if they are non-discriminatory and proportionate to these objectives and, in any event, they must serve to limit betting activities in a consistent and systematic way. These considerations made by the Court are general and, therefore, liable to be valid independently of the question whether gains are used for specific purposes and in particular for humanitarian causes. It must also be stressed that the specific distribution of gains could not be considered, per se, as being sufficient reason to consider that all the above-mentioned requirements are automatically met.

The Commission has received a number of complaints from gambling service operators contesting the application of existing national restrictions to cross border services. The Commission will now analyse complaints in this area, in view of the recent ruling of the Court cited above and proceed with appropriate action in order to ensure that the principles provided by the recent ruling of the Court in the area of gambling are respected, including in the area of gaming whose gains are used for humanitarian causes.