Convergence of European and national regulations – part two
Series of articles from “The Practice of Gambling” by Anchidim Zagrean, Rombet Vice-President
In the Green Paper on online gambling in the Internal market, published by the European Commission, the way in which the activity of gambling services has been normalized, the special rules by which it is regulated, as well as the practical interpretation of these rules, for the whole industry, is under scrutiny.
While gambling services are not subject to sectoral regulation at EU level or horizontal acts such as the Services Directive (Directive 2006/123/EC) or the e-commerce Directive (Directive 2000/31/EC), they are subject to several rules in secondary EU legislation.
Article 56 TFEU prohibits restrictions on the freedom to provide services to beneficiaries in other Member States. In the case of Schindler, the CJEU first confirmed, that the provision and use of cross-border gambling offers is an economic activity that falls within the scope of the Treaty. Similarly, in the Gambelli case, the Court stated, that electronic services are also covered by the Treaty and that national legislation prohibiting operators established in a Member State from providing online gambling services to consumers in another Member State, or which limits the freedom to receive or to benefit as recipient of services provided by a supplier, established in another Member State constitutes a restriction on the freedom to provide services. Restrictions can only be accepted as exceptional measures, expressly provided for in Articles 51 and 52 of the TFEU, or can be justified, in accordance with the case-law of the Court, of compelling reasons of general interest. The Court has recognized several overriding reasons of general interest, such as consumer protection objectives and the prevention of both fraud and incitement to excessive gambling and the general need to maintain public order. However, the reduction of tax revenue is not one of the reasons mentioned in Article 52 TFEU and does not constitute an overriding reason in the general interest. All recognized societal aspects may serve to justify the need for national authorities to have an enough margin of discretion to determine the requirements imposed by consumer protection and the maintenance of public order, in terms of the type of service offered in this area.
The case-law also calls for such services and cross-border restrictions that may result from the regulatory approach, to lead to a real reduction in gambling opportunities and to be applied in a coherent and systematic manner to all service offerings in the field. In so far as the authorities of a Member State incite and encourage consumers to participate, for the benefit of public finances, in lotteries, gambling and betting, the authorities of that State may not invoke public policy issues leading to the need to reduce betting opportunities, in order to justify the restrictions. Restrictions must be applied without discrimination and must be proportionate and appropriate, to achieve the objective pursued and do not go beyond, what is necessary to achieve it. The procedure for granting a licence must respect the principle of equal treatment and non-discrimination and the obligation of transparency arising therefrom.
Relevant EU secondary legislation in the field of gambling
I. REGULATIONS – have general applicability, are binding in its entirety and directly applicable in each Member State
1. REGULATION (EU) NO 549/2013 of the European PARLIAMENT AND of the COUNCIL of 21 May 2013 on the European System of national and regional accounts in the European Union
Lotteries and gambling, 4,135.
The sums paid for lottery or betting tickets consist of two items: payment for a service to the unit that organizes the lottery or gambling and a residual current transfer to the winners.
Payment for the service may be substantial and includes taxes on the production of gambling services. In the system, transfers are considered to be carried out directly between lottery participants or gambling, i.e. between households. In the case of participation of non-resident households, there may be significant net transfers between the households and the rest of the world.
2. REGULATION (EC) NO 1126/2008 of the COMMISSION of 3 November 2008-consolidated form-adopting certain international accounting standards in the accordance with regulation (EC) No 1606/2002 of the European Parliament and of the Council.
Revenues include only gross inputs of economic benefits received or to be received by the entity in its own name. The amounts collected on behalf of third parties, such as sales taxes, taxes on goods and services, and value added taxes are not economic benefits generated for the entity and do not result in increases in equity.
Therefore, they are excluded from income. Similarly, in the case of a mandate contract, gross economic benefit entries include the amounts collected on behalf of the representative and which do not result in increases in the entity’s own capital. The amounts collected on behalf of the representative are not income. Instead, revenues are represented by the amount of commissions.
For the implementation of these mandatory European regulations in the National special rule, the sums paid for lottery tickets or wagered are defined as a fee for participation in the game and the residual transfer to players is defined as prizes granted.
The payment of the service to the organizer is defined as income from the gambling activity and it follows, that the difference between the game participation fee and the prizes awarded, those amounts representing the economic benefits received in their own name and there, where applicable, any commissions collected shall be added.
3. REGULATION (EU) 2016/679 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
Data Protection Regulation
As far as European secondary legislation is concerned, gambling services are not regulated by sectoral rules at EU level but are nevertheless subject to several EU acts.
The following texts are noteworthy: The Audio-visual Media Services Directive, the Unfair Commercial Practices Directive, the Distance Selling Directive, the Money Laundering Directive, the Directive on Privacy and Electronic Communications and the Directive on the Common System of Value Added Tax added. In other cases, gambling services have been explicitly excluded from the scope of EU law. This is the case for The e-commerce Directive and The Services Directive.
COUNCIL DIRECTIVE 2006/112/EC
Directive on the common system of value added tax
CHAPTER 3, exemptions for other activities, article 135
Member States shall exempt the following operations:
(i) Betting, lotteries and other forms of gambling, subject to the conditions and restrictions determined by each Member State;
CHAPTER 4, other taxes, duties and duties, article 401
Without prejudice to other provisions of Community law, this directive shall not preclude any Member State from retaining or introducing taxes on insurance contracts, gambling charges and sports betting, excise duties, stamp fees or, more generally, any duties, fees or taxes which cannot be characterised as turnover taxes, provided that by collecting such taxes, duties and fees should not arise, in trade between Member States, some formalities relating to the passage of borders.
2. DIRECTIVE (EU) 2015/849 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
Directive in the field of money laundering, article 2
1. This directive shall apply to the following obliged entities:
(f) Gambling service providers;
14. ”Gambling services” means any service which entails a stake of monetary value in gambling, including those with an element of skill, such as lotteries, casino games, poker games and bets, provided in a physical establishment or by any means remotely, electronically or with the help of any other kind of technology facilitating communication, and at the individual request of the recipient of the services;
DIRECTIVE 2011/83 / EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
Distance Selling Directive, Article 3, Scope of application
(3) This Directive shall not apply to contracts:
(c) Gambling involving stake on a pot of pecuniary value in games luck, including lotteries, casino games and betting transactions;
We come back with other opinions in the next issue of the magazine…