According to the bill recently introduced before the Italian Senate to take up again the long-awaited Government gambling reorganization, the future of any form of commercial communications to promote, directly or indirectly, the gambling services of a gambling operator in Italy is heavily compromised. For more details on the provisions, please refer to previous blog “Only the European Commission could actually save Italian onlin gambling from total ban on advertising“.
Aiming to safeguard health and to prevent compulsive or excessive gambling, this total ban of commercial communications should concern all gambling offline and online products, a part of national deferred lotteries, on every promotional means, including TV, newspaper, publication, radio, Internet, theatre and cinema communications.
Should the bill pass as is operators and relevant gambling associations may be ready to complain and push forward the EU Commission with the opening of an infringement procedure towards Italy for noncompliance with the EU legislation.
The EU Commission has an obligation under the Treaties to ensure that Member States’ legislation is fully compatible with EU law. In this purpose, it may decide to send a formal request for information to Italy on national legislation restricting the commercial communications in order to verify whether the national measures in question are compatible with Article 56 of the UE Treaty which guarantees the free movement of services. Italy would be compelled to demonstrate the advantages in terms of safeguarding health and excessive gambling prevention to justify the imposed ban as a restriction to free movement of services.
Shall we recall that, with specific regard to commercial communications for online gambling, the EU Commission expressly recognized, in its recommendation on common principles for the protection of consumers and players of online gambling services and for the prevention of minors from gambling online dated 14 July 2014, that commercial communication of online gambling services can play an important role in “directing consumers to the regulated offer” and therefore recommended the Member States to put forward responsible rules showing the identity of the operator and carrying correct information about online gambling including the risks of problem gambling, as well as appropriate warning messages also to avoid appealing to minors. The recommendation did not suggest any ban and on the contrary welcomed codes of conduct of these commercial communication principles.
Now, in the absence of harmonisation at Union level, Member States are free to set the objectives of their policy on games of chance and to define the level of protection sought for the purpose of protecting the health of consumers. But the Court of Justice of the European Union has made it very clear on the interpretation of the fundamental freedoms of the internal market in the area of gambling, taking into account the specific nature of gambling activities: while Member States may restrict or limit the cross-border supply of online gambling services on the basis of public interest objectives that they seek to protect, they are nonetheless to demonstrate the suitability and necessity of the measure in question.
Therefore, as long as Italy will be able to demonstrate these measures are necessary, proportionate and non-discriminatory and public interest objectives are being pursued in a consistent and systematic manner, the request may not have any implication for its entitlement to seek to protect the general interest.
In any case, let us also remember that the above captioned Commission’s recommendation has expressly provided for a Member State reporting obligation with a deadline to notify to it of any measures taken pursuant to this Recommendation by January 2016.
In light of the above preliminary considerations, it may be unlikely that the Italian State is willing to risk a new EU infringement complaint.
