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Decision in case 1808/2017/TE on how the European Commission pursued an infringement proceeding against Germany regarding its Inter-State Treaty on Gaming

Dostępne języki :  en
  • Sprawa :  1808/2017/TE
    Otwarta 2017-11-30 - Decyzja z 2018-04-23
  • Dotyczy(Dotyczą) instytucji :  Komisja Europejska

The case was about how the European Commission pursued an infringement procedure against Germany regarding its Inter-State Treaty on Gaming. The Ombudsman inquired into the issue and found that there was no maladministration in the Commission’s conduct.

Background to the complaint

1. The complainant is a German gambling company.

2. Between November 2015 and August 2017, the complainant contacted several Directorate Generals of the Commission as well as cabinets of Commissioners, expressing its concerns regarding the compliance of the German Inter-State Treaty on Gaming[1] (‘the Inter-State Treaty’) with EU law.

3. On 30 June 2015, the Commission’s Directorate General for Internal Market, Industry, Entrepreneurship and SMEs (‘DG GROW’) launched an informal dialogue between the Commission and the German authorities, a so-called ‘EU Pilot’, on a potential non-compliance with EU law related to the Treaty.

4. On 10 November 2015, the complainant contacted the Commission’s Directorate General for Competition (‘DG COMP’), stating that the Inter-State Treaty contained a number of provisions distorting competition, as it would favour state operators over private operators. Therefore, DG COMP “should assess the situation and take part in the EU Pilot against the German authorities”.

5. On 23 June 2016, the complainant sent emails to several staff members of different departments of the Commission, asking for a fast opening of a formal infringement procedure against Germany.

6. On 17 August 2017, the complainant wrote an email to a staff member of DG GROW, mentioning a report published by the German Land Hessen in April 2017 on an assessment of the Inter-State Treaty. It added that, “considering the lack of initiative from the German decision makers”, the Commission should fulfil its role as Guardian of the Treaties. 

7. On 28 September 2017, the complainant turned to the Ombudsman.

The inquiry

8. The Ombudsman opened an inquiry into the following aspect of the complaint:

The Commission failed to act upon an infringement of EU law by Germany’s Inter-State Treaty on Gaming.

9. On 7 December 2017, the Commission issued a press release[2], stating that it had decided to close all infringement procedures and complaints in the gambling sector.

10. In the course of the inquiry, the Commission clarified to the Ombudsman’s inquiry team that it had informed the complainant, following the press release, of its decision to close the infringement procedures, including the EU Pilot on the German Inter-State Treaty on Gaming.

11. The Ombudsman’s decision takes into account the arguments and views put forward by the parties.

Arguments presented to the Ombudsman

12. The complainant argues that, since the entry into force of the Inter-State Treaty in 2008, doubts have been raised about its conformity with EU law; the Court of Justice confirmed these doubts in 2010[3] and 2016[4]. The complainant therefore takes the view that the Commission failed to fulfil its role as Guardian of the Treaties.

13. In the press release of 7 December 2017, the Commission defended its decision to close all infringement cases in the area of gambling by referring to its commitment to a more strategic enforcement of EU law, by focusing on political priorities, as described in the Commission Communication “EU Law: Better Results through Better Application[5].

The Ombudsman's assessment

14. The Ombudsman recalls that Article 258 of the Treaty on the Functioning of the European Union (TFEU) provides a mechanism by means of which the Commission can seek to ensure that Member States apply EU law correctly. According to well-established case law[6], the Commission enjoys a wide margin of discretion in deciding when and how to act in infringement proceedings against a Member State. The Ombudsman has consistently taken the view that her role in such cases is limited to verifying whether the Commission has acted diligently and in accordance with the principles of good administration.

15. In a recent case, on which the Ombudsman decided on 2 March 2018[7], the Ombudsman had already inquired into the Commission’s decision to close the infringement cases in the gambling sector[8]. Following her inquiry, the Ombudsman concluded that the Commission’s decision was reasonable and, therefore, no further inquiries were justified. As part of the earlier inquiry, the Ombudsman also looked into the delay in dealing with the infringement cases in question. She found that the Commission had followed the infringement cases closely and carefully throughout the years. The delay in dealing with the proceedings was thus due to the complexity of the infringement package and not caused by the Commission.

16. In this case, the Ombudsman builds on these conclusions. She also notes that the Commission had informed the complainant, within the scope of a meeting, of its decision to close the infringement procedures in the gambling sector, including the EU Pilot on the German Treaty. The complainant was thus aware of the closure of the EU Pilot, despite the fact that it had not made a formal infringement complaint to the Commission. The Ombudsman therefore concludes that the inquiry has not brought to light any instance of maladministration.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion:

There was no maladministration by the Commission.

The complainant and the Commission will be informed of this decision.

 

Fergal Ó Regan

Coordination of Public Interest Inquiries ‐ Unit 2

Strasbourg, 23/04/2018

 

[1] Staatsvertrag zum Glücksspielwesen in Deutschland (Glücksspielstaatsvertrag - GlüStV) vom 01.01.2008 and Staatsvertrag zum Glücksspielwesen in Deutschland (Glücksspielstaatsvertrag – GlüStV) vom 15. Dezember 2011.

[2] European Commission Press Release of 7 December 2017 “Commission closes infringement procedures and complaints in the gambling sector”, available at: http://europa.eu/rapid/press-release_IP-17-5109_en.htm.

[3] Joint Cases C-316/07, C-358/07 to C-360/07, C-409/07 and C-410/07 Stoß and Others [2010] ECLI:EU:C:2010:504.

[4] C-336/14 Sebat Ince [2016] ECLI:EU:C:2016:72.

[5] Communication from the Commission, EU law: Better results through better application, C/2016/8600,

OJ C 18, 19.1.2017, p. 10, available at http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.C_.2017.018.01.0010.01.ENG&toc=OJ:C:2017:018:TOC.

[6] See judgment of the Court of Justice in Case C-247/87, Star Fruit v Commission [1989], ECLI:EU:C:1989:58, para. 11.

[7] Decision on complaint 425/2017/ANA of 2 March 2018, available at https://www.ombudsman.europa.eu/cases/decision.faces/en/90387/html.bookmark.

[8] The previous complaint concerned several infringement complaints of the European Gaming and Betting Association regarding the compatibility of the regulatory framework for online gambling in certain Member States with EU law. During an inspection meeting with the Ombudsman’s inquiry team, the Commission stated that, since the Court of Justice had already issued a number of judgments on the lawfulness of Member States’ restrictions imposed on the provision of online gambling services, such complaints could be solved in national courts. Where necessary, national courts could have recourse to the preliminary reference mechanism of Article 267 of the TFEU.