Cross-Border Gaming: The European Regulatory Perspective

Abstract

CONSIDERING ITS SUBSTANTIAL economic importance1 the European Commission demonstrated in the early 1990s a certain interest2 in the “gaming sector.” The Member States, however, held the firm opinion, based upon the principle of subsidiarity, that the regulation of casino games, lotteries and other types of games was an exclusive Member State matter. Having considered the remarks brought forward by the Member States, the Commission underlined in 1992 that, even if a legislative initiative was not required, this could not be excluded. It stated that “as the Community becomes ever more closely integrated, and technological developments open up markets worldwide, it can not be precluded that the Commission will have to reconsider its position in view of new and as yet unforeseeable trends.”3 One of those “unforeseeable trends” could well be the dawning of the information society, most manifestly demonstrated by the growth of the Internet, a society, as we all know, without geographical frontiers. In this article, our objective is to analyze to what extent gaming operators can engage in cross-border activities. While European competition law4 can be of importance, our focus will be on the free provision of services and goods throughout the European Union, as clarified by the relevant jurisprudence of the European Court of Justice. Once the limits to this freedom have been analyzed, the impact of the rise of the information society, and the underlying opportunities, will be analyzed.