24 PUBLIC GAMING INTERNATIONAL • MAY/JUNE 2022 CONSOLIDATING THE SOCIETAL ROLE OF LOTTERIES IN EUROPE Following the ruling of the European Court in Schindler in 1993, the debate on the role of Lotteries shifted almost exclusively towards the protection of consumers and responsible gaming, and the protection of public order against crime and illegal gambling. This in turn reduced the influence and role of Lotteries in society. Misinterpretation, or at least absence of accurate interpretation, of the overall case law of the European Court of Justice did take the focus away from the important societal role of Lotteries and their valuable contribution to our societies. To some extent, Regulators and shapers of public policy have chosen to think of online gambling as an independent activity, or even new game category, instead of just another form of distribution as it should be. Classifying online commerce as a new product is illogical and causes regulatory confusion. We will only refer to this problematic regulatory issue incidentally, but it would certainly be useful to address in a separate article. Here it is enough to say that there is no good reason to think about online gambling as a new sector or game category that should be regulated separately from their land-based counterparts given it is only another form of distribution of a like service, something that the European Court and also the World Trade Organisation already decided in the famous Antigua case. In this article we only want to go deeper into the societal role of Lotteries. In 2010, under the previous Belgian Presidency of the European Union, the Member States adopted with unanimity the following declaration: III. THE SUSTAINABLE CONTRIBUTION OF LOTTERY AND RELATED SERVICES TO SOCIETY RECALLS that all EU Member States have different types of state lotteries or lotteries licensed by the competent state authorities, providing lottery services. NOTES that a few Member States temporarily or permanently authorize smaller scale lotteries for the benefit of charitable or philanthropic purposes. In the same manner, certain Member States allow for other games of chance to fund such benefits. RECOGNIZES that contributions, in particular from state lotteries or lotteries licensed by the competent state authorities play an important role for society, via for example the funding of good causes, directly or indirectly where applicable. AGREES that this specific role should be recognized in discussions at the European level. Today, more than 10 years later, the above declaration is not yet fully implemented as a fundamental principle under EU law, although the Court of Justice did give us the necessary tools to do so in a number of cases. Lotteries stand for important non-economic values and societal principles that need to receive a protection similar to economic freedoms. Therefor protecting Lotteries cannot be seen as an exception to the economic freedoms but require to be considered of equal and constitutional importance. The EU Court of Justice did in various cases recognize that there are principles established by the Court to validify such equal recognition. Most Lotteries are still operating as monopolies, at least legally. In jurisdictions where online gambling has been set up independently from the existing land-based operators, such monopoly becomes almost irrelevant. As a result, consumer protection has been undermined. The conferral of exclusive rights to operate gambling activities is a measure necessary to enable governmental authorities to limit exploitation of the human impulse to overindulge in gambling and to avoid the risk of crime and fraud related to games-of-chance. Countries like Finland show that this can be done in a successful and at the same time very responsible manner. Others have a dual system with a monopoly for certain activities and licenses for others. This is equally legal to the extent that the lines between the various activities are clear, the scope of the various exclusive rights respected, and a proper risk By Philippe Vlaemminck & Beata Guzik Continued on page 44
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