Quo vadis Luxemburg? Die europäische Rechtsprechung zum Glücksspielrecht

Abstract

The ECJ has frequently been called upon to assess compatibility of national gambling legislation with EC law. The most recent Placanica decision, followed by two judgments of the EFTA Court concerning the Norwegian legislation, was expected to fix a new milestone. Did these rulings revolutionise one of the most controversially discussed matters in the context of EC and EEA primary law, develop certain aspects of the former judgments or rather confirm the course pursued? What can their possible impact be? This paper seeks to analyse the criteria which the ECJ has established as to the justifiability and proportionality of national restrictions upon the fundamental freedoms of services and establishment. It explains the jurisprudential background in order to set forth its shortcomings and lacunae and to demonstrate the difficulties faced by national authorities in interpreting and applying the principles developed by the jurisprudence in a convincing way. Until the Placanica decision, little clarity was achieved. The wide scope for manoeuvre formerly accorded by the ECJ to Member States and its later attempts at delimitation were not sufficiently precise to lead to a clear identification of restrictions of primary law which are EC law compatible. As regards the findings and the role of the recent judgments and their usefulness in shaping a way forward, the argumentation of the EFTA-Court is considered to be a more precise indicator of the proportionality test on the national level, than is the Placanica case. A short comparison with the ECJ’s jurisprudence in other sensitive areas and possible advances beyond primary law complete the analysis.