Advocate General deals blow to Gibraltar ECJ case hopes

Advocate General deals blow to Gibraltar ECJ case hopes

Friday, January 20, 2017 Posted by Andy McCarron
The opinion finds that Gibraltar and UK are same entity in EU law

The case brought by the Gibraltar betting operators against the UK point of consumption (PoC) regulatory and tax regime would appear to be dead in the water after the EU’s Advocate General said Gibraltar and the UK should be treated as a single entity.

The Advocate General Maciej Szpunar said in his opinion of the case currently in front of the European Court of Justice (ECJ) said that effectively Gibraltar was issuing infringement proceedings against itself.

The opinion doesn’t necessarily bring a halt to the case as it is only an opinion. However, legal analysts pointed out that in about 90 percent of cases before the ECJ the court would follow the AG Szpuner’s opinion.

AG Szpuner noted that it is the UK and not Gibraltar that has assumed obligations towards the member state sin ratifying the treaties. “Logically, therefore, infringement proceedings with respect to Gibraltar are brought against the UK and Gibraltar cannot institute infringement proceedings itself,” the opinion added. “In the Advocate General’s view, if the freedom to provide services were to apply between the UK and Gibraltar, this would imply, rather strangely, that the UK assumes an obligation vis-à-vis itself.”

The chief executive of the Gibraltar Betting and Gaming Association, Peter Howitt, said the body was “naturally disappointed” with the news of the AG opinion. “We continue to believe that the gambling duty applied by the UK government to operators out of the jurisdiction, in circumstances where the customer may not be in the UK when they gamble or even a UK resident, is a disproportionate restriction on operators,” he said. “We look forward to receiving the CJEU's judgment on the issues.”

The case was referred to the ECJ by the British High Court. The GBGA argued that the PoC regime introduced in November 2014 constituted a restriction on the freedom to provide services. GBGA members include 32Red, 888 Holdings, bet365, Betfred William Hill and BetVictor.

The Advocate general also suggested this week that the issue as to whether the UK’s regime was proportionate was for the UK High Court to decide.

The next step in the proceedings is that the ECJ will issue its judgment on the issues which will then be binding on the English High Court. 

Totally Gaming says: All the caveats notwithstanding, it seems clear that the GBGA is now very close to finally losing its case. The significance of the issue will fade once we get the ECJ judgment in as much as the PoC regime has already been in place for over two years. Brexit might be looming but the EU’s highest court isn’t done with UK gambling just yet – the next issue coming up will be over the horseracing levy and state aid. The lawyers will be in gravy for a while yet.

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