On 30 June 2016, the Court of Justice of the European Union (CJEU) ruled in case C-464/15, Admiral Casinos on the proportionality analysis carried out by Member States trying to limit the freedom to provide services on the basis of public policy objectives. The CJEU clarified that the proportionality assessment must be conducted “not only on the objective of that legislation at the time of its adoption, but also on the effects of the legislation, assessed after its adoption.” Indeed, the Court of Justice made clear that the proportionality test must be dynamic rather than static and take all effects of legislation into account that develop following the adoption of the legislation.
The CJEU found that:
“It follows from the use of the words ‘in a consistent and systematic manner’ that the legislation concerned must meet the concern to reduce opportunities for gambling or to fight gambling-related crime not only at the time of its adoption, but also thereafter” (para 34; emphasis added);
“[…] in a review of proportionality, the approach taken by the referring court must be dynamic rather than static in the sense that it must take account of the way in which circumstances have developed following the adoption of the legislation concerned” (para. 36; emphasis added); and
“[…] proportionality of restrictive national legislation in the area of games of chance must be based not only on the objective of that legislation at the time of its adoption, but also on the effects of the legislation, assessed after its adoption“ (para. 37; emphasis added).
Quoting its previous case law in C-390/12, Pfleger and Others, the CJEU also reminded that:
“[…] it should be borne in mind that […] the national court must carry out a global assessment of the circumstances in which restrictive legislation, such as that at issue in the main proceedings, was adopted and implemented” (para. 31); and
“[…] the assessment of proportionality cannot be confined to an analysis of the situation as it was at the time when the legislation concerned was adopted but must also take into account the — necessarily later — stage of implementation of that legislation” (para. 32).
Maarten Haijer, Secretary General of EGBA, has welcomed the judgement and states: “The freedom to provide services is one of the cornerstones of the EU internal market. Therefore, it is of crucial importance that a restriction to any of the fundamental freedoms is appropriate and proportionate to the achievement of the stated public policy goal. The Court has made it clear that the assessment of whether or not a restrictive law is adequate must not stop after the law has entered into force but must continue as a dynamic process. In addition it should be reminded that the national gambling legislation in a Member State as a whole must be consistent.”
He added: “This is why we acknowledge the importance of this judgement, as it reminds Member States that restrictions to the activities of gambling providers must be in place only and as far as a public policy objective is at serious risk. We hope that this judgement will make some Member States reconsider their gambling policies, and to assess whether they are still relevant by means of periodic ex-post assessments.”