One of the fundamental freedoms, the free movement of services, has been the fulcrum of a preliminary ruling in the Biasci et al v. Italy judgment where the Court of Justice of the European Union (CJEU) ruled that prohibiting cross-border gambling violates European Union Law which acts as the guarantor for the exercise of this fundamental freedom. Irrespective of the sector underpinning the market, the CJEU recapitulated that Member States are legally restricted from controlling the access of cross-border market with the aim of protecting national companies, and also specifically to the gaming sector to protect Italian gamers from “phishing”.
This case involved Italian authorities prohibiting the access of gaming operators established outside Italy, including e-gaming companies based in Malta, by refusing to grant an Italian licence thereto to enable them to offer gaming services to Italian gamers. Moreover, Italian authorities had also banned the Malta Lotteries and Gaming Authority’s official website as well as approximately 680 gaming web sites all of which happen to be registered in Malta. From an EU legislative perspective, both Article 43 EC and Article 49 EC are to be interpreted as precluding national legislation, in this case the refusal of an Italian licence or authorisation to offer gaming services to Italian gamers, which imposes a criminal penalty on any person(s) who pursue(s) an organized gaming activity without a licence or authorisation as per that national legislation. This specifically applies where such person(s) is or are unable to obtain the licence or authorization on the basis that such national legislation is in breach of EU law.
