![]() 4 This could for instance be observed in Anomar where the Portuguese government pointed at the ‘special nature’ of gaming. ![]() The Services Directive states “ambling activities should be excluded from the scope of this Directive in view of the specific nature of these activities.” 3 Counsels of governments have repeatedly argued this specific nature, be it in court hearings or public presentations. Both the EU legislator and EU judiciary have repeatedly emphasised a peculiar or special nature of gambling. 2Īccording to prevalent views, gambling and gambling addiction appear to be fundamentally different from other risks and therefore need a different, separate regulatory approach. The aim has been to gain the high ground regarding the ‘correct interpretation’ of the judgment and to highlight alleged points of victory. In line with the adversarial setting of court proceedings and the financial consequences that are at stake, 1 private operators and public monopolies have usually continued their quarrel outside the courtroom immediately after the release of a new ruling. Until recently, the pan-European discussion in the legislative branch was very limited, and the Internal Market Courts consequently became the main ‘fora of discussion’ of gambling issues. There can be no doubt that protecting consumers from gambling addiction is a highly legitimate motive that can justify restrictions to cross-border trade in gambling services. 9.1).Īmong the justification grounds pleaded in the gambling cases, the protection of consumers from gambling-related harm is an important, if not the central concern. ![]() In view of inquiring the aforementioned aspects, 10.1007/978-6-9_9 must start with an introduction to the nature and mechanisms of gambling addiction according to the current state of research (Sect. 9.3.3) of the Court’s diverging approach are examined. The Court’s approach to games of chance is subsequently compared to cases involving similar consumer protection concerns (Sect. It inquires to which extent the Court’s views on gambling addiction are supported by empirical evidence on this mental disorder (Sect. Apart from this legal analysis, it also assesses the Court’s review practice from an empirical perspective. Accordingly, 10.1007/978-6-9_9 examines to which extent the granted discretion was accompanied by an effective proportionality review. The previous chapter also showed that the doctrine of the margin of appreciation is supposed to go hand in hand with judicial review. The chapter notes a ‘ judicial vacuum’ in the review practice the numerous cases referred to the Court of Justice are an expression of this problem as predicted by the late Advocate General Colomer.ġ0.1007/978-6-9_8 looked into the use of the margin of appreciation and noted a general tendency of the Court of Justice of leaving wide discretion to national authorities in the field of gambling. Dealing with gambling as a ‘peculiar issue’ and a topos of public morality led to a lack of a science- informed assessment of gambling- related risks. It analyses in particular the political context of the early case law and it identifies passages in the jurisprudence that illustrate a subjective- moral rather than objective-scientific perspective on gambling-related risks.įinally, the chapter addresses the consequences of the Court’s diverging approach. ![]() The chapter inquires the causes for the Court’s peculiar approach to gambling issues. Again, a diverging standard of review is noted. In a next step, the Court’s review practice is compared to judgments in other areas that involved similar consumer protection concerns (alcohol addiction and youth drinking internet threats). The chapter also establishes that different standards of review have applied to different aspects of gambling regulation, with the most lenient review being applied to national choices of licensing models and the strictest to penalties and procedural requirements in licensing tenders. ![]() It is shown that the Court of Justice's – legally relevant(!) – assumptions on gambling addiction are (only) partly supported by empirical evidence. These findings lay the ground to analyse the proportionality review: judicial views are contrasted with empirical findings. It explains the nature and mechanisms of this mental disorder. This chapter starts with a thorough introduction to gambling addiction according to the current state of research. ![]()
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