Conseil Const., Decision nr. 2010-605 - Arrest

Conseil Const., Decision nr. 2010-605, 12 May 2010

On April 13th 2010, the Constitution Council received a referral, pursuant to paragraph 2 of Article 61 of the Constitution, for review of the constitutionality of the Act pertaining to the Opening up to Competition and the Regulation of Online Betting and Gambling from Mr Jean-Marc AYRAULT et al, Members of the National Assembly.

Arguments from the parties:

• The statute referred for review was enacted in proceedings which were unconstitutional. That when suspending proceedings in public after having announced that voting would take place on the motion for a preliminary rejection at second reading, the President of the National Assembly failed to comply with the regulations of the House and the requirements of clarity and accuracy of Parliamentary debat.

• It fails to comply with the fundamental prohibition on betting and gambling recognized by the laws of the Republic. It would attack head-on French legal tradition whereby three principles govern betting and gambling: ‘prohibition, exclusivity, exception’, and that by so acting it has failed to comply with fundamental principle recognizes by the laws of Republic. Sections 11, 12 and 14 of the statute referred for review provide that organizing online betting and gambling on horses, sports or casino games shall require prior official approval. The argument “lifted all controls” on online betting and gambling should be dismissed.

• It runs counter to the law of the EU. The contend that “European Community law in no ways requires such opening up to competition since on the contrary the European Court of Justice allows monopolies once they are justified by public policy and law and order considerations”. It’s not incumbent upon the Constitutional Council, under a referral made pursuant to Article 61 or 61-1 of the Constitution, to review the compatibility of a statute with international and European commitments entered into by France. Thus, notwithstanding the reference on the Treaty signed in Lisbon on December 13th 2007, it is not its task to review the compatibility of a statute with the provisions of this Treaty. The referral for review of the compatibility of the impugned statute with international and European commitments entered into by France, in particular with the law of the European Union, should therefore be dismissed.
  It’s incumbent upon Courts of law and Administrative Courts to review the compatibility of a statute with European commitments entered into by France and, if need be, to make a reference for a preliminary ruling to the European Court of Justice. The arguments based on failure to comply with the law of the European Union must be dismissed.

Online gambling shall require prior approval. It created an independent administrative body, the Online Gambling Regulatory Authority, in charge of granting official approval to new operators, enforcing compliance by the latter with their obligations and combating illegal operators. It has laid down measures designed to prevent addiction, protect vulnerable members of the public, combat money laundering and guarantee the authenticity of sporting matches and games. It has chosen not to open access to approved operators to games of chance. It has regulated advertising in favour of legal gambling while imposing criminal penalties on those offering illegal gambling. In view of the purpose it is sought to achieve,

Parliament has enacted measures to ensure a reconciliation which is not patently disproportionate between the principle of the freedom of enterprise and the objective of constitutional status of the safeguarding of public policy. The arguments raised against the statute in its entirety should be dismissed.