European Gaming Lawyer magazine Autumn 2015 | Page 31

Learning from Mistakes:
Recent Court decisions on failed
gambling licensing procedures
By Martin Arendts, Attorney-at-Law

Martin Arendts

In several court cases, the Court of Justice of the
European Union (CJEU) has developed detailed
criteria on how gambling licenses can be granted
under EU law. Recently, in several Member States
of the EU, respectively the EEA, national courts
were called to apply these criteria. In Germany,
Austria and Liechtenstein courts held that national
gambling licensing procedures did not fulfill the
transparency criteria under EU law, expressly quoting
the relevant case-law of the CJEU. They therefore
revoked decisions to grant casino licenses or stopped
a licensing procedure. In Liechtenstein, the State
Court decided that selection criteria for the single
casino license had to be published before the deadline
to apply for a license. Quite similarly, the Austrian
Federal Administrative Court revoked decisions of
the Austrian Ministry of Finance to grant new casino
licenses in three cases, also arguing that the licensing
procedures were not transparent enough. With
regard to the sports betting licensing procedure in
Germany, several courts pointed to the transparency
requirements under EU law and effectively stopped the
licensing procedure in interim protection proceedings,
arguing that these requirements were not fulfilled.
Criteria of the CJEU: guidelines for licensing
procedures
From the basic freedoms and the principles of equal
treatment and non-discrimination, the CJEU formed
a concept of how gambling licenses should be awarded
under EU law. As the main part of this concept,
the CJEU developed a very detailed obligation of
transparency. Especially after the Costa decision,
in which the CJEU recapitulated the criteria, these
guidelines can be regarded as settled case-law (and
already have been quoted by several national courts).
In its decisions of 21 July 2015, the Austrian Federal

Administrative Court argued that the CJEU had
sufficiently clarified the legal situation. In its upcoming
Ince decision (Case C-336/14) the CJEU might clarify
further details.
The CJEU argues with the effectiveness of EU
law, requesting effective judicial review. Thereby, the
CJEU connects material law with procedural law as
it points to the obligation of the licensing authorities
to exercise their powers of discretion in a transparent
manner, so that the impartiality of the procedures can
be monitored afterwards by a court. According to the
CJEU, the licensing procedure has to be transparent
and must be based on objective, non-discriminatory
criteria known in advance.
First of all, the obligation of transparency concerns
the authority. A duty of transparency shall enable
the authority to ensure that the principles of equal
treatment and non-discrimination are complied with.
Additionally, in order to enable the impartiality of the
procedures to be monitored, the authority has to base
each decision on reasoning which is accessible.
Apart from that, transparency is even more
important for potential applicants. The whole
licensing procedure must be transparent, in order
to allow competition and the impartiality of the
licensing procedures to be reviewed. The obligation
1 For the situation in Germany (licensing procedure as a “never-ending story”) see
Arendts, No Clarity without Transparency: CJEU to decide on the sports betting
licensing procedure in Germany, EGR Spring 2015, 26.
2 For a summary of these criteria see Arendts, Guidelines for gambling licenses
under EU law, EGR Winter 2013, 16.
3 CJEU, decision of 16 February 2012 – Joined Cases Costa and Cifone - C-72/10
and C-77/10.
4 Sporting Exchange decision, para. 50; Carmen Media Group decision, para. 87;
Costa decision, para. 56.
5 ECJ, Commission v Italy – C-260/04, para. 24.

European Gaming Lawyer | Autumn Issue | 2015 | 31