October 13, 2015

The High Court has referred a challenge from the Gibraltar Betting and Gaming Association to the British Government to the European Court of Justice. A previous judgment dealt peremptorily with the complaints of the Gibraltarians, partly (in the view of some followers of the process) due to the focus by non-specialist counsel on the less distinctive aspects of the overall case, and partly by a judge who appeared not to understand the nuances of the British situation, primarily the fact that the British were reversing out of a liberalised market with high consumer protection of several years’ standing into a restrictive regime, and any evidence whatsoever of consumer detriment; a dynamic unlike that of any other EU Member State. The referral will be interesting for a variety of reasons. Firstly, it throws into relief the issue as to whether Gibraltar can claim EU ‘free movement’ protection as against the UK. Secondly, the ECJ’s analysis of the imposition of British gambling duty on operators, who may well already be paying duty in other Member States (Malta, Gibraltar) will be interesting, and not just for the British. Thirdly, one wonders what might pop up in the ECJ judgment on the duty that might also apply to the dubious previous UK judgment on the regulation itself. All that said, I have no great hopes of the ECJ which has, with one or two notable exceptions, shown itself fairly supine in relation to the liberties that Member States take with remote gambling regulation. Its judgments would be easier to swallow if any one of them had provided some evidence to support the ECJ’s unsubstantiated axiom, that all gambling is evil and remote gambling particularly so, that appears at some juncture in all their judgments.