Today’s EU Court of Justice ruling states that the provision of services by operators established in Gibraltar to persons established in the UK constitutes, as a matter of EU law, a situation confined in all respects within a single Member State.
The case opposing the Gibraltar Betting and Gaming Association Limited v Commissioners for Her Majesty’s Revenue and Customs before the High Court was detailed in my previous post relating to the opinion sustained by the Advocate General Szpunar.
In substance, the High Court asked the EU Court whether, for the purposes of the freedom to provide services, Gibraltar and the UK are to be treated as if they were part of a single Member State or whether, with respect to the freedom to provide services, Gibraltar has, as a matter of EU law, the constitutional status of a separate territory to the UK, so that the provision of services between the two is to be treated as intra-EU trade.
Even though the Court observes that Article 56 TFEU is applicable to Gibraltar and Gibraltar does not form part of the UK, it confirms that according to its case law, the provisions of the Treaty on freedom to provide services do not apply to a situation, which is confined in all respects within a single Member State.
The UK has assumed obligations towards the other Member States under the Treaties so far as the application and transposition of EU law in the territory of Gibraltar is concerned. Therefore, considering Gibraltar and the UK two Member States would deny this connection, recognised in EU law, between that territory and that Member State.
This implies that the GBGA has yet no enforceable EU rights to enhance its challenging before the High Court of England and Wales against the UK taxation regime that requires all gambling services providers established in Gibraltar to pay gambling duty deriving from the remote games of chance placed with them by UK consumers.
But this further implies that the Brexit will clearly impact Gibraltar as well and therewith the gambling companies and suppliers operating from Gibraltar as licensees in other EU jurisdictions.
