Adjudicating Europe

In Case C-42/07, Liga Portuguesa, the Court of Justice came to the conclusion that national legislation which precludes operators to provide games of chance via the internet was not contrary to free movement rules on services. This ruling is apparently not coherent with the gambling jurisprudence of the Court. This case is another backlash of the Court. A rather recurring backlash, I would say, having in mind the cases on citizenship (Förster), national procedural law (Kempter), res judicata (Olimpiclub) or establishment (Apothekerkammer).

It is true that since Gambelli (para. 63), a Member State can rely on a national interest, e.g. consumer protection and the prevention of fraud, inasmuch it serves to limit betting activities in a consistent and systematic manner. It is also true that in Placanica (paras. 53-54), the Court of Justice made clear that the Italian legislation on Gambling was inconsistent and thus disproportionate since the Italian legislature was pursuing a policy of expanding activity in the betting and gaming sector, with the aim of increasing tax revenue, and that no justification for the Italian legislation were to be found in the objectives of limiting the propensity of consumers to gamble or of curtailing the availability of gambling. Yet in Liga Portuguesa (paras. 61-67), the Court considered that the national legislation at issue was sufficiently consistent and systematic. I found also interesting this steady insistence on the historical and structural specificities of the Santa Casa monopoly. It might even give some fuel to Member States’ agents in lack of inspiration. Mais je m’éloigne.

The test of consistency is also detectable in other areas. The spring’s jurisprudence on freedom of establishment (Hartlauer, para. 55 and Apothekerkammer, para. 42) is valuable. Have a look at Apothekerkammer, where the Court of Justice assessed the non-absolute exclusion of the operation of pharmacies by non-pharmacists (pharmacists’ heirs) in light of the test of consistency. This national legislation was eventually considered to be appropriate. As an aside, I would like to draw your attention at paragraph 55 of Apothekerkammer. Here the Court of Justice seems to put the burden of proof on the Commission to demonstrate the necessity of the national measure and this in a preliminary ruling procedure, on top of that. I simply don’t get it! Any idea?

…Anyway, there are least some good news with the Court of Justice’s case law on gambling and pharmacies: it brings more rationality to the principle of proportionality. Similarly to the test of less restrictive means in relation to the assessment of the measure’s necessity, the test of consistency appears to be an integral part of the assessment of the measure’ suitability. Some years ago, Catherine Barnard (Substantive Law of the EU, OUP, 2007, 85) pointed out at the proceduralization of the principle of proportionality. And this point is in fact nicely illustrated by the Laval case (see para. 110). With the recent free movement cases, one can also talk of an increased rationalization of proportionality.

The Court is definitely stuck between coherence and incoherence…

Cartesio