ECJ: Portuguese Dispute Heads back to Portugal

14 October 2008

Advocate General Yves Bot of the European Court of Justice today issued his much-anticipated opinion in the case involving Bwin Interactive Entertainment and Portugal's charitable lottery and sports betting monopoly, Departamento de Jogos de Santa Casa da Miseric├│rdia de Lisboa.

Very broadly, the case was referred from the Tribunal de Pequena Instância Criminal do Porto in Portugal to the Court of Justice in Luxembourg after Bwin and the Liga Portuguese de Futebol Profissional were fined 74,500 euros and 75,000 euros, respectively, for offering and advertising mutual sports betting services. Bwin and the Liga have been partners since 2005.

The Portuguese national court, before which Bwin and the Liga contested the fines, referred the case to Luxembourg because it was uncertain as to whether Portuguese legislation -- which gives Jogos de Santa Casa the exclusive right to offer land-based and electronic lottery and betting services in-country -- conforms with European Community law.

According to the advocate general's opinion, Portugal recently enacted legislation that extended Jogos de Santa Casa's land-based monopoly to electronic communications mediums, including the Internet.

Before enacting this legislation, however, the Portuguese government was obligated under European law to notify it to the European Commission. The advocate general has opined, however, that if the legislation was not notified to the commission, then the penalties the legislation proposes -- administrative fines -- must not apply to Bwin and the Liga.

"The national court will have to determine whether the draft legislation was notified to the Commission," read a press release from the Court of Justice summarizing the advocate general's opinion. "Similarly, it will also have to draw the appropriate conclusions with regard to the fines imposed on the Liga and Bwin."

As to whether the Portuguese monoply's extension to electronic mediums conforms with European Community law, Advocate General Bot said the monopoly could stand if certain conditions are met. These include a public interest test and considerations regarding consumer protection and public order.

The advocate general said it would be left to the Portuguese national court to decide whether its legislation is appropriate for meeting those aims.

Ahead of a detailed analysis being prepared for IGamingNews by Philippe Vlaemminck, a senior partner with Vlaemminck & Partners in Belgium, we wish to provide you with a list of educational materials from the Court of Justice, Bwin and the European Gaming & Betting Association.

A press release from the Court of Justice summarizing Advocate General Bot's opinion may be found here.

The full text of Advocate General Bot's opinion may be found here.

The questions referred originally in this case (No. C-42/07) to the Court of Justice may be found here.

A reaction to the advocate general's opinion from Bwin may be found here.

Finally, a reaction to the advocate general's opinion from the European Gaming & Betting Association -- of which Bwin is a member -- may be found here.

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