Devotees of the US-Gambling case (not that any such devotees readily come to mind, Simon...) will enjoy mulling over this recent preliminary ruling of the European Court of Justice. In Case C-42/07 Liga Portugesa de Futebol Profissional issued on September 8th, 2009, the ECJ found that the exclusivity granted to Jogos Casa Santa, a non profit that has held gambling concessions in Portugal since the end of the 18th century, are indeed restrictions on trade in Services within the EU, but are justified for reasons of public policy. This exclusivity - which is to the detriment of online providers, in this case one based in Gibraltar and Austria - was also found to be proportional, although frankly the analysis is typically rather thin. I found the insinuation in para. 71 particularly troubling and indeed gratuitous: the question was not whether this particular provider (BWin) could have been excluded, but whether the exclusivity granted to Casa Santa was justified.
It is also interesting that the Court rested its ruling entirely on the public policy logic, and side-stepped the other possible claim - that gambling services in Portugal are provided in the exercise of governmental authority under Article 45 EC and therefore carved out of the freedom of services provision. I can only speculate that the public policy path provides the Court with greater flexibility in dealing with future challenges to gambling regulation in other member states. I know nothing about gambling regulation in other European states but it is notable that several of them objected to the admissibility of the case as a preliminary ruling.
Hat tip: EU Law Blog.
T.