Chapter 4: National Regulation of Online Gambling as a Trade Restriction
Julia Hörnle 4.1 INTRODUCTION It has already been pointed out1 that regulation varies between different states and that states regulate gambling by imposing licensing requirements, providing for private or state monopolies or even completely prohibiting some forms of gambling. Such regulation may prevent gambling operators from entering foreign markets and offering cross-border online gambling. This chapter will examine to what extent operators wishing to break into new (foreign) markets for online gambling can use instruments of trade liberalization (such as those in the EC Treaty or through the WTO instruments) in order to achieve this goal and prevent national regulation from restricting their operations. Conversely, national regulators restricting the cross-border provision of gambling (and in particular online gambling) may be defeated by obligations to open up national markets. This chapter will first examine the provisions of the EC Treaty and the jurisprudence of the ECJ in gambling cases and then briefly look at gambling issues arising in the WTO context and discuss to what extent the EU Internal Market2 and trade liberalization prevent national regulation of online gambling. 4.2 4.2.1 EUROPEAN UNION General Introduction The EC Treaty3 provides for several fundamental freedoms which potentially See Chapter 2, section 2.3. Defined in Art 26(2) of the EC Treaty as ‘an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties’. 3 The Treaty Arts have been renumbered in the Treaty of Amsterdam and more...
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