On 19 and 20 June, online gaming regulators from four Member States, France (ARJEL), Italy (AAMS), Portugal (Santa Casa da Misericordia de Lisboa) and Spain (DGOJ), met to discuss their online gambling legal framework and market data with the aim of promoting operational cooperation in the field and enhancing exchanges of information.
This meeting could be seen as the first possible extension of the cooperation bilateral agreement executed between French (ARJEL) and Italian (AAMS) gaming authorities of 28 June 2011, whereby ARJEL and AAMS agreed to implement a cooperation and information sharing process to foster contrast of illegal gambling, sports frauds and improve operators’ control when licensed in both countries. On 10 July 2012, the French online gaming regulator ARJEL executed a new cooperation, a bilateral agreement, with the UK Gambling Commission.
As premises to the above mentioned meeting, the four regulators participating agreed to consider online gambling, a sector in which state intervention is necessary due to issues such as public order, protection of consumers against fraud and criminal activities, prevention of addiction, integrity of the games and the fight against illegal gambling. It is stated ‘these objectives can only be effectively pursued by each individual state regarding each specific ethical, cultural and social reality, through strong regulatory instruments, exercised by public authorities, not relying on market forces only.’1 Nevertheless, ‘these common political vision and objectives make possible an operational cooperation aimed at laying the foundations for a better protection of the ends provided for by the legislation and for exchanges on the licensing criteria in each jurisdiction.’ Interestingly, the four regulators have thus defined the priority objectives to debate and agree on. Indeed, both the Schaldemose and Creutzmann reports2 clearly stated the need for closer cooperation between regulatory authorities but did not define what first steps were required to move forward. In consideration of the lack of harmonisation at European level, the question of ‘where to start’ is still an open and sensitive issue. According to these regulators, cross-border cooperation should start on: (i) protection of consumers and preventing gambling addiction; (ii) fighting illegal gambling; (iii) preventing fraud and criminal activities; and (iv) ensuring integrity of the games.
Online gambling regulations still represent an open debate for all EU institutions with specific reference to the forthcoming communication of the Commission. Latest CJEU rulings3 stressed that no mutual recognition principle for gambling licenses shall apply but coherence within the gaming regulation is requested.
These four regulators have now defined the main objectives and interests in which they are willing to prioritise regulatory cooperation on online gambling. But this meeting is of utmost importance for another reason: the scope of the meeting seems not to be limited to an information exchange agreement with regards to the operators licensed in more than one jurisdiction but seems to recognise the added value of an operational cooperation. In other words, the above mentioned objectives could be even better addressed at a cross-border level. Among these, a possible shared liquidity in certain games among some of the countries participating in the meeting has not been excluded. If a new regulators’ agreement is reached among the four participants, it will clearly demonstrate that despite the different levels of regulatory and market development observed in each of the countries, enhanced cooperation between EU Member States and, in particular, their gaming authorities, is the right way forward.
According to EU Treaties4, enhanced cooperation is a tool that can permit a limited number of Member States (at least nine) to strengthen their cooperation between themselves in one of the areas covered by the Treaties, not of exclusive EU competence, with the aim to find common solutions to cross-border issues and to promote the EU integration process5. Binding regulation is directly applicable only in the participating Member States. It is open to all Member States, subject to their compliance with all the conditions of participation laid down by the enhanced cooperation decision – at any time, subject to compliance with the acts already adopted within that framework.
Ideally, a limited number of ‘advanced’ Member States could decide to create common pan European minimum standards through an enhanced cooperation on certain issues identified above. The main advantages of an enhanced cooperation for the regulatory authorities could be, not only the information sharing in the authorisation process and ongoing activities, but also a greater cooperation on law enforcement common standards (anti money laundering investigations, fraud and collusion controls), on fairness and integrity of games offered, common standards for player protection (responsible gaming, risks of addiction, minors) and common guidelines for advertising. The main advantages of an enhanced cooperation for the operators could be a simplified licensing process for a licensed operator in another Member State through common standards, at least for IT systems and the use of certifications/auditing mechanisms and no localisation requirements (no need to re-locate and duplicate the technical infrastructure when located in another Member State). Where can we go from here? The proactivity of these regulators should hopefully permit to by-pass the harmonisation difficulties setting common guidelines and solutions to a certain number of issues raised by the latter, the Green Paper and by the experts working groups of the EU Commission. The challenge to draft European common standards could now have a start and we strongly hope that the next meeting of online gaming regulators to be held in Paris in December 2012 shall see the cooperation of other Member States sharing similar regulatory principles and strategies and willing to adopt the same proactive approach.
1. Common Press release – July 12th, 2012.
2. March 10th, 2009 and November 15th, 2011 respectively.
3. C-42/07 and C-347/09.
4. Articles 329 and following, TFEU – Treaty on the Functionality of the EU.
5. See also Lexgiochi.it – article April 15th, 2012.