European Gaming Lawyer magazine Autumn 2015 | Page 19

Malta’s change in attitude
By Joseph Borg - Senior Advisor, WH Partners

M

Malta has been known by
the industry for being a
“friendly” jurisdiction
– one which recurrently
opposes unreasonable
laws enacted by fellow EU member states
who breach the principles of the Treaty; one
which continuously voices its views in
favour of open and balanced
gaming regulatory regimes in front of the
Council of the European Union and in the
European Court of Justice (CJEU).
However, the recent withdrawal of its
Request For Opinion, which had been filed
by Malta with the CJEU on 8 July 2014, in
regard to the compatibility of the Council’s
Europe Convention on the Manipulation of
Sports Competitions with the EU Treaties,
pursuant to Article 218(11) TFEU, has
somewhat raised some eyebrows.
Malta had submitted the Request for
Opinion to obtain an opinion on whether
the definition of “illegal sports betting” was
consistent with the objectives of the Treaty.
The withdrawal of this Request for Opinion,
coupled with the sudden light approach
taken by Malta towards laws enacted by
other Member State, is a sign that something
has changed in Malta’ s attitude. As of late,
Malta has favoured the approach to laws
notified through the Technical Regulation
Information System (TRIS) rather than
taking the more confrontational route by
filing reasoned opinions which automatically
delayed the implementation of such laws.
Does this mean that Malta has changed
its position? According to the Malta Gaming
Authority (MGA), absolutely not! In its
press release relating to the withdrawal
of its Request For Opinion relating to
the Council’s Europe Convention on the
Manipulation of Sports Competitions, it
categorically stated that its position on the
Convention remains unchanged. While
maintaining its full support with respect to
main objectives of the Convention which

is to prevent the manipulation of sports
results, it still believes that the definition of
‘illegal sports betting’ goes beyond the scope
of the Convention and does not contribute
to fight against match fixing.
However, my understanding is that in the
coming months and perhaps years, Malta
will focus more on achieving its objectives
through dialogue and negotiations rather
than by embarking on holy wars with its
fellow EU Member States. This doesn’t mean
that it will not file reasoned opinions when
another Member State proposes a law that
is blatantly in breach of the principles of the
Treaty. As a matter of fact, Malta has filed
reasoned opinions on the laws proposed
by Hungary and Portugal. In the same way,
it will not stop intervening in CJEU cases
to voice its concerns. In fact, Malta kept
intervening and from my understanding it
will keep intervening in such cases, in the
foreseeable future.
Malta has always been open to cooperation with other jurisdictions,
particularly with respect of fraud, moneylaundering and match-fixing. The recent
case implicating a number of Italian
operators licensed in Malta and Italy,
who were allegedly involved in moneylaundering and other criminal activities, is
just one of a series of instances where Malta
offered and factually provided assistance
to its counterparts in other jurisdictions.
However, Malta’s perceived ‘belligerent’
attitude in various EU fora over the past
10 years has, to some extent, side-lined
and perhaps isolated Malta from its fellow
Member States in such fora. Probably the
new approach is also a result of a change in
attitude adopted by other Member States
towards Malta. Now that many of them have
started regulating and gaining experience in
regulating online gaming, they have realised
that Malta was not doing such a bad job after
all. They also recognise the needs of the
industry and understand Malta’s arguments

better since they are now experiencing these
issues themselves. Keep in mind that most of
the Member States which are now regulating
online gaming and opening up to foreign
operators, used to look at online gaming as
the devil in disguise less than 10 years ago.
Will this change in attitude work? It is
hard to say, at this stage. The way the gaming
regulatory climate has developed in Europe
did not allow Malta to maintain the same
attitude. Member States have opened up
significantly to online gaming but there is
no way that they will start recognising each
other’s licenses in the foreseeable future.
Perhaps, the best that can be achieved at
this stage is to agree on a set of common
standards to make it easier for operators to
comply with the national regulatory regimes
across Europe. This would significantly
make life easier for operators and allow
them to compete with other operators who
are not licensed and regulated in Europe.
The industry in Malta hopes that this
change in attitude produces something
tangible. What the industry does not expect,
however, is for Malta to become weak on
the international sphere. It expects Malta to
remain vociferous, even if with a different
tone when compared to the past, but still
there to promote best practices and uphold
the freedoms of the treaty. Let’s hope the
new philosophy works, for the growth of the
jurisdiction, the good of the industry and
the benefit of consumers.

JOSEPH BORG – Senior Advisor, WH
Partners – is a Gaming Law expert
and also lectures Gaming Law at
the University of Malta. He is the
former Chief Regulatory Officer at
the Malta Gaming Authority and
a former Member of the Board
of Trustees of the International
Association of Gaming Regulators.

European Gaming Lawyer | Autumn Issue | 2015 | 19