Proportionality Review in EU Gambling Law

Abstract

This chapter starts with a thorough introduction to gambling addiction according to the current state of research. It explains the nature and mechanisms of this mental disorder. These findings lay the ground to analyse the proportionality review: judicial views are contrasted with empirical findings. It is shown that the Court of Justice's – legally relevant(!) – assumptions on gambling addiction are (only) partly supported by empirical evidence.

The chapter also establishes that different standards of review have applied to different aspects of gambling regulation, with the most lenient review being applied to national choices of licensing models and the strictest to penalties and procedural requirements in licensing tenders. In a next step, the Court’s review practice is compared to judgments in other areas that involved similar consumer protection concerns (alcohol addiction and youth drinking; internet threats). Again, a diverging standard of review is noted.

The chapter inquires the causes for the Court’s peculiar approach to gambling issues. It analyses in particular the political context of the early case law and it identifies passages in the jurisprudence that illustrate a subjective- moral rather than objective-scientific perspective on gambling-related risks.

Finally, the chapter addresses the consequences of the Court’s diverging approach. Dealing with gambling as a ‘peculiar issue’ and a topos of public morality led to a lack of a science- informed assessment of gambling- related risks. The chapter notes a ‘ judicial vacuum’ in the review practice; the numerous cases referred to the Court of Justice are an expression of this problem as predicted by the late Advocate General Colomer.