The Carmen Media Case – The Expected Catalyst from Brussels for a New Approach to German Gambling Law?

Abstract

Billions of Euros of turnover are generated every year from games of chance. The legal framework conditions regulating this branch of the economy vary significantly within the European Union. Whilst in many countries such as Germany the state has a dominating monopoly position, other Member States, such as Denmark, France and Italy, have made moves towards a consistent partial liberalisation. These different framework conditions lead to problems, increasingly so as the European internal market is otherwise growing closer together. This is especially evident in the area of online gambling which, due to the structure of this medium, is not restricted by national boundaries, but must nevertheless not constitute a legal no man's land.Against this background, it appears logical for the European Court of Justice (ECJ), on the occasion of the submission of cases by Member State courts pursuant to Art. 267 of the Treaty on the functioning of the European Union (TFEU) (previously Art. 234 EC), to repeatedly have called for the examination of national gambling regulations with regard to their compliance with Union law, as the ECJ's standing jurisdiction acknowledges that a (national) state monopoly for cross-border issues represents a violation of the freedom of establishment as set out in Art. 56 TFEU (previously Art. 49 EC) or the freedom of establishment as set out in Art. 49 TFEU (previously Art. 43 EC) respectively. Such restrictions of gambling activities may, however, be justified by matters of overriding general interest.

Online Gambling under EU Law: Strolling Between Controlled Expansion and Genuine Diminution of Gambling Opportunities

“…EU Member States have thus realised that it is better to have strict state control over organization of the games. (more on this in Spindler, Hambach, Berberich, 2011). In 2001 the German Federal Constitutional Court concluded that »the work of a casino on the whole is an unwelcome occupation that is nonetheless permitted by the government to check illegal gambling, to provide state-supervised opportunities for the human gaming instinct which cannot be restrained, and thereby to protect the natural passion for gambling from punishable exploitation« (ruling of 19 July 2001, cited in Meyer et al: 2009.…”