1 Judgment of 3 June 2010.

2 Ibid. ** Editorial Hint: Articles 49 and 55 (in combination with 46) of the EC Treaty in its pre-Lisbon version.

3 Article 16(1) of the Law on games of chance (‘Wet op de kansspelen’).

4 In addition to a licence from the UK, Sporting Exchange is also licensed in Malta.

5 The relevant licences were already distributed to other operators. The non-profit-making foundation ‘Stichting de Nationale Sporttotalisator’ (De Lotto) has held the licence for the organisation of sports-related prize competitions, the lottery and numbers games since 1961. The licence for the organisation of a totalisator on the outcome of horse races was granted to Scientific Games Racing BV (SGR), a subsidiary of Scientific Games Corporation Inc., which is established in the United States.

6 Strictly speaking, the case concerned Ladbrokes Betting & Gaming Ltd. and Ladbrokes International Ltd. In the following, they are referred to as “Ladbrokes”.

7 This case, Ladbrokes before the ECJ, should not be confused with an earlier gambling case that also involved Ladbrokes but in which proceedings took place before the EFTA Court: E-3/06, Ladbrokes Ltd. v. The Government of Norway, Ministry of Culture and Church Affairs and Ministry of Agriculture and Food [2007] EFTA Court Report 86.

8 The numbering of the articles in these two cases follows the pre- Lisbon version since the cases were referred to the ECJ prior to the entry into effect of the Lisbon Treaty. I follow this numbering throughout my case note.

9 Sporting Exchange, para. 31.

10 “It should be noted in that regard that the internet gaming industry has not been the subject of harmonisation within the European Union. A Member State is therefore entitled to take the view that the mere fact that an operator such as Betfair lawfully offers services in that sector via the internet in another Member State, in which it is established and where it is in principle already subject to statutory conditions and controls on the part of the competent authorities in that State, cannot be regarded as amounting to a sufficient assurance that national consumers will be protected against the risks of fraud and crime, in the light of the difficulties liable to be encountered in such a context by the authorities of the Member State of establishment in assessing the professional qualities and integrity of operators.” Sporting Exchange, para. 33, referring to C-42/07, Liga Portuguesa de Futebol Profissional, Bwin International Ltd v. Departamento de Jogos da Santa Casa da Misericórdia de Lisboa [2009] ECR I-00000, para. 69. For a critical assessment of this paragraph, cf. Simon Planzer, “Liga Portuguesa – The ECJ and Its Mysterious Way of Reasoning”, 11 European Law Reporter (2009), pp. 368 et sqq., at p. 372.

11 Sporting Exchange, para. 34, referring to C-42/07, Liga Portuguesa de Futebol Profissional, Bwin International Ltd v. Departamento de Jogos da Santa Casa da Misericórdia de Lisboa [2009] ECR I-00000, para. 70.

12 Sporting Exchange, paras. 39–41, referring to C-324/98, Telaustria and Telefonadress [2000] ECR I-10745, paras. 60–62; C-206/08, Eurawasser [2009] ECR I-0000, para. 44; C-91/08, Wall [2010] ECR I-0000, para. 33 and 36, C-324/07, Coditel Brabant [2008] ECR I-8457, para. 25.

13 Sporting Exchange, para. 58.

14 Sporting Exchange, para. 59.

15 Ladbrokes, paras. 25–27, inter alia referring to C-360/04, Placanica et alii [2007] ECR I-1891, para. 55.

16 Ladbrokes, paras. 28–30.

17 Ladbrokes, paras. 33–37.

18 Ladbrokes, para. 54. Cf. fn 10.

19 For a general introduction cf. Carolyn Raffensberger and Joel Tickner (eds), Protecting Public Health and the Environment: Implementing the Precautionary Principle (Washington DC: Island Press 1999).

20 For a general introduction cf. Alemanno, Alberto, Trade in Food: Regulatory and Judicial Approaches in the EC and the WTO (London: Cameron May 2007).Google Scholar

21 The Treaty on the Functioning of the European Union (TFEU), for instance, states in Article 114(3) that the European Commission shall in its proposals relating to health take into account “any new development based on scientific facts.” Cf. also Article 114(5) which refers to “scientific evidence.”

22 The gambling cases stricto sensu are in chronological order: C-275/92, Her Majesty's Customs and Excise v. Gerhart Schindler and Jörg Schindler [1994] ECR I-01039; C-124/97, Markku Juhani Läärä, Cotswold Microsystems Ltd and Oy Transatlantic Software Ltd v. Kihlakunnansyyttäjä (Jyväskylä) and Suomen valtio (Finnish State) [1999] ECR I-06067; C-67/98, Questore di Verona v Diego Zenatti [1999] ECR I-07289; C-6/01, Associação Nacional de Operadores de Máquinas Recreativas (Anomar) and Others v. Estado português [2001] ECR I-08621; C-243/01, Criminal Proceedings against Piergiorgio Gambelli and Others [2003] ECR I-13031; C-42/02, Diana Elisabeth Lindman [2003] ECR I-13519; Joined Cases C-338/04, C-359/04 and C-360/04, Criminal Proceedings against Massimiliano Placanica, Christian Palazzese, Angelo Sorricchio [2007] ECR I-01891; C-42/07, Liga Portuguesa de Futebol Profissional, Bwin International Ltd v. Departamento de Jogos da Santa Casa da Misericórdia de Lisboa [2009] ECR I-00000; C-203/08, Sporting Exchange Ltd, trading as ‘Betfair’, v. Minister van Justitie, intervening party: Stichting de Nationale Sporttotalisator [2010] nyr; C-258/08, Ladbrokes Betting & Gaming Ltd, Ladbrokes International Ltd v. Stichting de Nationale Sporttotalisator [2010] nyr.

23 Whelan, James, Steenbergh, Timothy and Meyers, Andrew, Problem and Pathological Gambling (Cambridge MA: Hogrefe & Huber 2007), at p. 2.Google Scholar

24 DSM-IV-TR, classification number 312.31, available on the Internet at <www.behavenet.com/capsules/disorders/pathgambledis. htm> (last accessed on 20 June 2010).

25 “A. Persistent and recurrent maladaptive gambling behavior as indicated by five (or more) of the following:

(1) is preoccupied with gambling (e.g., preoccupied with reliving past gambling experiences, handicapping or planning the next venture, or thinking of ways to get money with which to gamble);

(2) needs to gamble with increasing amounts of money in order to achieve the desired excitement;

(3) has repeated unsuccessful efforts to control, cut back, or stop gambling;

(4) is restless or irritable when attempting to cut down or stop gambling;

(5) gambles as a way of escaping from problems or of relieving a dysphoric mood (e.g., feelings of helplessness, guilt, anxiety, depression);

(6) after losing money gambling, often returns another day to get even (“chasing” one's losses);

(7) lies to family members, therapist, or others to conceal the extent of involvement with gambling;

(8) has committed illegal acts such as forgery, fraud, theft, or embezzlement to finance gambling;

(9) has jeopardized or lost a significant relationship, job, or educational or career opportunity because of gambling;

(10) relies on others to provide money to relieve a desperate financial situation caused by gambling.

B. The gambling behavior is not better accounted for by a Manic Episode.”, DSM-IV-TR, supra note 22.

26 Howard Shaffer, “What is Addiction?: A Perspective” available on the Internet at <www.divisiononaddictions.org/html/whatisaddiction.htm> (last accessed on 20 June 2010).

27 Instead of many, cf. for a recent publication, Ross, Don, Kincaid, Harold, Spurrett, David and Collins, Peter (eds), What Is Addiction? (Cambridge MA: MIT Press 2010).CrossRefGoogle ScholarPubMed

28 In 2007, about half of the total number of research publications dated from 1999 to 2007. Harvard professor of psychology Dr. Howard Shaffer, in a workshop on gambling disorders, Vienna 2007.

29 “[T]he reasons which may be invoked by a Member State by way of justification must be accompanied by an analysis of the appropriateness and proportionality of the restrictive measure […]. In the main proceedings, the file transmitted to the Court by the referring court discloses no statistical or other evidence which enables any conclusion as to the gravity of the risks connected to playing games of chance or, a fortiori, the existence of a particular causal relationship between such risks and participation by nationals of the Member State concerned in lotteries organised in other Member States.” C-42/02, Diana Elisabeth Lindman [2003] ECR I-13519, paras. 25–26. This statement was an obiter dictum in that the two paragraphs were not necessary to answer the preliminary questions. Since the Finnish tax regime was found to be discriminatory a justification by “overriding reasons” as recognised in the caselaw was ab initio excluded.

30 “[R]estrictions based on such grounds and on the need to preserve public order must also be suitable for achieving those objectives, inasmuch as they must serve to limit betting activities in a consistent and systematic manner.” C-243/01, Criminal Proceedings against Piergiorgio Gambelli and Others [2003] ECR I-13031, para. 67.

31 Ladbrokes, paras. 28–30.

32 E-1/06, EFTA Surveillance Authority v. Norway [2007] Ct. Rep. 7; E-3/06, Ladbrokes [2007] Ct. Rep. 85.

33 C-124/97, Markku Juhani Läärä, Cotswold Microsystems Ltd and Oy Transatlantic Software Ltd v. Kihlakunnansyyttäjä (Jyväskylä) and Suomen valtio (Finnish State) [1999] ECR I-06067, para. 37.

34 Ladbrokes, paras. 25-27, inter alia referring to C-360/04, Placanica et alii [2007] ECR I-1891, para. 55.

35 C-243/01, Criminal Proceedings against Piergiorgio Gambelli and Others [2003] ECR I-13031, para. 69.

36 Placanica, para. 55.

37 Ladbrokes, paras. 28–30.

38 Sporting Exchange, para. 31.

39 Sporting Exchange, para. 58.

40 The survey used two screens, the DSM-IV and the Canadian Problem Gambling Severity Index (PGSI). The DSM-IV result showed a rate of 0.6 % of the adult population – exactly the same rate as identified with the same screen in 2000, i.e., prior to the liberalisation. The PGSI offered a slightly lower result with 0.5 % of the adult population. Data available on the Internet at <www.gamblingcommission. gov.uk/pdf/British%20Gambling%20Prevalence%20 Survey%202007.pdf> (last accessed on 20 June 2010). At the time of writing, the most recent survey, 2010, was still ongoing. Cf. <www.gamblingcommission.gov.uk/research__consultations/research/ bgps/bgps_2010.aspx> (last accessed on 20 June 2010).

41 Maureen Kallick et alii, A Survey of American Gambling Attitudes and Behavior (Ann Arbor: Survey Research Center, Institute for Social Research, University of Michigan 1979).

42 Debi LaPlante and Howard Shaffer, “Understanding the Influence of Gambling Opportunities: Expanding Exposure Models to Include Adaptation”, 77 The American Journal of Orthopsychiatry (2007), pp. 616 et sqq.; Howard Shaffer and David Korn, “Gambling and Related Mental Disorders: A Public Health Analysis”, 23 Annual Review of Public Health (2002), pp. 171 et sqq.

43 In this context, many different prevalence rates from different countries could be quoted. Some of them suggest increasing (exposure model), others decreasing or stable (adaptation model) levels of prevalence following liberalisation moves. For the purpose of my argument, it suffices to state that there is no conclusive evidence that would suggest that increased exposure to gambling offers necessarily leads to higher prevalence rates.

44 C-192/01, Commission v. Denmark [2003] ECR I-9693, para. 51. The ECJ relied in its judgment on the Kellogg's decision of the EFTA Court, E-3/00, Kellogg’s, [2000-2001] EFTA Ct. Rep. 73.

45 The research project is a legal-scientific collaboration between Dr. Howard Shaffer, Director of the Division on Addictions at Harvard Medical School and myself. Part of the study is a survey which inquires into the gambling regulation of more than 30 European jurisdictions.