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Belgium – EL urges Council of the EU to exclude mention of online gambling and betting services from Digital Services Act

By - 19 October 2021

Ahead of a meeting in the Council of the EU where the Digital Services Act (DSA) was discussed, the European Lotteries association has urged the EU Member States’ representatives to exclude the explicit mention of online gambling and betting services in the context of freedom of establishment and freedom to provide services within the EU:

The applicable national laws should be in compliance with Union law, in particular including the Charter and the Treaty provisions on the freedom of establishment and to provide services within the Union in particular with regard to online gambling and betting services.

The specific reference to ‘in particular with regard to online gambling and betting services’ wrongly implies that national regulations on illegal content in the gambling sector are often not in compliance with the EU law. Whereas there are definitely restrictions on the freedom to provide online gambling services in most Member States, these national laws aim to combat crime and fraud and to protect consumers in a manner that meets the requirements as set out in the caselaw of the Court of Justice of the EU.

”The explicit mention of online gambling and betting services in this particular context is misplaced and should therefore be deleted. It fails to take into account all the relevant case-law of the Court of Justice of the EU and the very nuanced approach to the gambling sector due to its peculiar nature. The Court clearly confirmed on several occasions that restrictions in the gambling sector are justified for reasons of public order, public security, public health, as well as for the overriding reasons in the public interest, such as consumer protection, combating fraud, crime or squandering of money. Failing to recognise this means risking increased activities of illegal gambling operators, damaging individuals and society as a whole. EL therefore urges to exclude the explicit mention of online gambling and betting services from the Digital Services Act in the context of freedom of establishment and freedom to provide services.”

In its original proposal, the European Commission underlined that the DSA would be without prejudice to the e-Commerce Directive (2000/31/EC) and that it builds on the provisions laid down therein. This implies that the clear exclusion of the gambling activities as stipulated in the e-Commerce Directive would continue to apply under the DSA, too. It is therefore very unclear why “online gambling and betting services” would have an explicit mention in recital 29 of the final text of the DSA concerning the application of the free movement principles, especially when no other sector is mentioned.

The Digital Services Act (DSA) legislative proposal seeks to amend the rules governing online services enshrined in the Directive 2000/31 (the so called “e-Commerce Directive”), as these rules are now more than 20 years old. It is generally perceived as a milestone update of how the Internet in the EU will be regulated in the future. The legislative proposal was introduced by the European Commission in December 2020. It is currently being discussed by the Member States in the Council and by the European Parliament. Both institutions first need to reach their positions on the European Commission’s proposal before negotiations on the final version of the legislative text can commence. While it was foreseen that both institutions would reach their position by the end of 2021, this now seems unlikely due to disagreements of legislators on certain issues.

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