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21 March 2023
Belgian law prohibits any foreign casino from advertising games of chance on our national territory. However, the European Court of Justice has just ruled against Belgium and in favor of three Netherlands companies that had advertised. They may not have to pay their fines. Here's why.
The royal decree of December 21, 2018 prohibited Belgian or foreign casinos from promoting games of chance elsewhere than on their websites. But in 2020, a February 6 ruling by the Council of State reinstated previous practices with the reauthorization of advertising. That said, in 2020, three Netherlands casino operators were fined by the Belgian Gaming Commission for advertising their casinos near the border. However, the three companies did not hesitate to challenge the fines in court.
The three companies' appeal has now been examined by the Court of Justice in Brussels. The three plaintiffs' defense was based on the Belgian law that prohibited advertising to establishments with an operating license granted by the commission. However, only establishments located on Belgian territory can have a license and not those located abroad. Therefore, this ban on advertising for Netherlands companies is contrary to the freedom to provide services that must apply in the EU.
In order to make its decision, the Netherlands-speaking section of the Brussels Court of First Instance turned to the European Court of Justice to examine the situation and the Belgian law. The European court had to evaluate the Belgian law and its correspondence with European law. And the European Court has decided: it totally invalidates the Belgian justifications.
The European Court considers that there is "a restriction on the freedom to provide services". By prohibiting advertising to all gambling establishments, even legal ones, located in other Member States, there is discrimination on the basis of place of establishment. And this cannot be considered proportionate, even for reasons of public health protection, because the European Court also considers that "less restrictive" measures remain possible.
It now remains for the Brussels Court of First Instance to rule on the case. But it is likely that the court will accept the European decision, at the risk of an appeal procedure that would amount to a vicious circle.
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