A Closer Look at the Placanica Decision

22 June 2007

Cases decided by the European Court of Justice (ECJ) can have a very significant impact, since the ECJ is the Court which decides on the interpretation of the European Union treaties and on the various directives made under them. The ECJ is also the final court on infringement cases like those to address whether the gambling legislation in an individual country is consistent with EU law as established under the treaties, etc.

EU law applies to all of the countries which are now members of the European Union: Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom.

But is the European Union a "United States of Europe" and is the ECJ a "European Supreme Court?" The answer to both questions is "No." The European Union is not a federation (like the United States), nor is it a nation state like, say, New Zealand. It is the creation of a series of treaties entered into between a number of wholly independent nations (i.e. the "Member States"). Through these treaties certain powers and responsibilities have been passed from the individual nations to the European Union but each Member State remains sovereign and could if it wishes (and not one has yet sought to do so) resume the powers and responsibilities which it has transferred to the European Union and leave the organization.

As well as establishing both the European Union and the principles of EU law, these treaties also establish the various political bodies and bureaucracies which run the European Union and which are empowered to build on the principles of EU law as set out in the treaties. All of the Member States are represented in these bodies (and in particular in the European Commission (EC) which "runs" the European Union on a day-to-day basis) and thus can have an impact on the detailed rules which are developed from the treaties.

A different treaty organization is the European Economic Area (EEA), which is separate from the European Union but is closely allied to it for many purposes, including some having relevance to gambling regulations. Broadly speaking, the EEA follows the EU principles on the free movement of goods and services. Thus the EEA treaty extends certain of these EU principles to Lichtenstein, Iceland and Norway.

It is the EU treaties (extended to the EEA) which establish the principles of the free movement of goods and services within the Member States (and the freedom to set up business anywhere in the European Union). The European Union, by the issue of directives and other pronouncements (including ECJ judgments), requires Member States to implement these principles by including them in the detail in their individual laws and regulations.

On a separate but related issue, we also often see references to the "United Kingdom," to "Great Britain," to "England" and to "the British Isles" and it may be thought that these are the same thing. But this is wrong. All of them, along with the "Channel Islands" and the "Isle of Man" mean different things.

The United Kingdom (which is a Member State in the European Union) is the nation the parliament of which sits at Westminster--and of which Gordon Brown is the Prime Minister in succession to Tony Blair. It is made up of England, Wales, Scotland and Northern Ireland. But not all laws which are passed by the U.K. parliament in Westminster actually apply to all of the United Kingdom. For example gambling law (including the Gambling Act 2005) applies to England, Wales and Scotland but only very peripherally to Northern Ireland which has its own gambling regulation.

Different from the United Kingdom is Great Britain which is the physical island comprising England, Scotland and Wales. It is not a nation but it is a part of the United Kingdom.

England is also a geographical area and comprises that part of Great Britain which is not Wales or Scotland.

The Isle of Man is an island in the Irish Sea physically situated between Great Britain and Ireland. It is a self-governing nation and is not part of the United Kingdom and is not regulated by the U.K. parliament or by the U.K. government. It has its own parliament, which makes its own laws and raises its own taxes, including its own gambling law and gambling taxes. The Isle of Man is not a member of the European Union or of the EEA but is associated for certain purposes.

The Channel Islands (which include Guernsey and Alderney) are a group of islands physically situated just off the northwest coast of France. But they are not part of France nor are they part of the United Kingdom since, like the Isle of Man, they are independent and self-governing and therefore also make their own laws and raise their own taxes including those covering gambling. Somewhat strangely, by historical accident, the Isle of Man and the Channel Islands owe certain allegiance to the "British Crown" and as a consequence the United Kingdom is responsible for their defense and for their external relations with other countries. But they are not regulated by the U.K. parliament nor are they run by the U.K. government.

The Channel Islands are sub-divided into two Bailiwicks. One covers Jersey and the other covers Guernsey, Alderney and a number of smaller islands. Alderney is also well known for its modern online gambling legislation, and Jersey has recently announced that it plans to introduce new gambling laws. The Channel Islands are not part of the European Union or the EEA.

All of these islands, i.e. Great Britain, the Isle of Man and the Channel Islands, together with the island of Ireland (both the Republic and the United Kingdom's province of Northern Ireland) make up the geographical, but not political, description of "the British Isles."

Tony Coles is Senior Partner with Jeffrey Green Russell, one of the leading firms of London lawyers dealing with leisure, gaming and related activities. Coles has been advising on betting and gaming law since the mid '60s and represents, amongst many other clients, a number of major corporations. As well as being a member of the International Masters of Gaming Law, Tony Coles is a member of the International Association of Gaming Attorneys (IAGA), the Society for the Study of Gambling and the European Association for the Study of Gambling. He sits on the Editorial Board of Gaming Law Review. He has contributed the United Kingdom segment to all editions of the highly acclaimed Internet Gambling Report, which has become the definitive legal resource on Internet gambling since its first printing in 1997.