Ref. Ares(2019)5670288 - 10/09/2019
Communication from the Commission - TRIS/(2019) 02099
Directive (EU) 2015/1535
Forwarding of a detailed opinion received by a Member State (Malta) regarding a rule on services (article 6,
paragraph 2, third indent, of Directive (EU) 2015/1535)
Comunicado detallado - Podrobné vyjádření - Udförlig udtalelse - Ausführlichen Stellungnahme - Üksikasjalik
arvamus - Εμπεριστατωμένη γνώμη - Detailed opinion - Avis circonstancié - Parere circostanziado - Detalizēts
atzinums - Detali nuomonė - Részletes vélemény - Opinjoni dettaljata - Uitvoerig gemotiveerde mening - Opinia
szczegółowa - Parecer circunstanciado - Podrobný úsudok - Podrobno mnenje - Yksityiskohtainen lausunto -
Detaljerat yttrande - Подробно становище - Aviz detaliat - Aviz detaliat.
Abre el plazo de statu quo - Zahájení doby pozastavení prací - Fristen for proceduren indledes - Beginn der
Verfahrensfrist - Ooteaja avamine - Εναρξη της προθεσμίας διαδικασίας - Opening of the standstill period - Ouvre
le délai de statu quo - E aperto il termine di procedura - Bezdarbības perioda sākums - Atidėjimo periodo pradžia -
A halasztási időszak megnyitása - Ftuħ tal-perijodu ta’ waqfien - Begin van de termijn voor de procedure - Otwarcie
okresu odroczenia - Abre o prazo de procedimento - Otvorenie pozastavenej periódy - Uvedba obdobja mirovanja
- Menettelyn määräaika alkaa - Inleder förfarandets frist - Откриване на периода на прекъсване - Deschiderea
perioadei de stagnare - Deschiderea perioadei de stagnare.
Die Kommission hat diese ausführliche Stellungnahme am 29-07-2019 empfangen.
The Commission received this detailed opinion on the 29-07-2019.
La Commission a reçu cet avis circonstancié le 29-07-2019.
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Document handled in the framework of Directive (EU) 2015/1535 of the European Parliament and of the Council of
9 September 2015 laying down a procedure for the provision of information in the field of technical standards and
This document is only releasable to staff in the European Commission and the Member States with an established
need-to-know in the framework of Directive (EU) 2015/1535.
When bearing the marking 'LIMITED', this document shall not be releasable for publication. When transmitting it
via electronic means within the Commission, SECEM (SECure EMail) should be used.
In case you are the holder of this document without having the established need-to-know, as indicated above,
inform the author, originator or sender immediately and return it securely unread. Failure to do so shall be
considered a breach of security, which may give rise to disciplinary or legal action.
1. MSG 117 IND 2019 0187 D EN 29-07-2019 29-07-2019 COM 6.2(3) 29-07-2019
3A. Parliamentary Secretariat for Financial Services, Digital Economy and Innovation
Office of the Prime Minister
Auberge de Castille
Valletta VLT 1061
3B. Malta Gaming Authority Building SCM 02-03, Level 4,
Ricasoli SCM 1001
4. 2019/0187/D - H10
5. article 6, paragraph 2, third indent, of Directive (EU) 2015/1535
6. Malta’s Detailed Opinion on Notification 2019/187/D on the ‘Second State Treaty amending the State Treaty on
Games of Chance’
Within the framework of the notification procedure instituted by Directive 2015/1535, Germany has notified the
‘Third State Treaty amending the State Treaty on Games of Chance (Third amendment to the State Treaty on
Games of Chance’ (hereinafter referred to as the ‘draft Treaty’), proposing to amend the State Treaty on Games of
Chance, the main legislative instrument in Germany regulating gambling services.
In their ‘Brief Statement of Grounds’, the German authorities state that:
“By partially amending the State Treaty, the model of the experimental phase for the term of the State Treaty on
Games of Chance will be refined and clarity provided for providers and participating third parties (payment service
providers, media, sporting clubs and associations). The limitation of concessions to 20 is therefore lifted so that
each applicant who meets the conditions (already notified as part of the First amendment to the State Treaty on
Games of Chance under number 2011/0188/D) can be issued a concession. At the same time, this makes it
possible for authorities supervising games of chance to impose a widespread ban on unauthorised offers. This
ends the progressive erosion of the rule of law.”
As such some of the measures included in the notified draft Treaty constitute rules on services referred to under
Article 1 (1) of Directive 2015/1535, namely rules specifically governing information society services. Detailed
examination of the notified draft Treaty, in particular the rules that specifically propose to govern Information
Society Services, has prompted the Maltese authorities to issue this detailed opinion. Malta notes that it had filed a
Detailed Opinion in relation to the preceding amendment to the State Treaty (2016/590/D) and Malta welcomes
any efforts to bring the Treaty in line with EU law by virtue of this Third Amendment. However, after having
reviewed the draft Treaty, Malta has been respectfully left with doubt as to whether the proposed amendments
address the concerns highlighted by itself in the Detailed Opinion filed in relation to the preceding notified draft
amendment (2016/590/D). This detailed opinion seeks to outline the remaining restrictions to the freedoms
guaranteed by the EU Treaty which Malta purports remain in place with this draft Treaty.
2. Detailed Opinion
2.1 Suspension of State Monopoly and Extension of ‘Experimental Phase’
The draft Treaty has continued to maintain the suspension of the state monopoly during the further-extended
“experimental phase”. Article 1 (4b)(10a) provides that the experimental phase shall extend up until 30 June 2021
or until 30 June 2024 in the event of an extension of the validity of the State Treaty in accordance with the
mechanism laid out therein. Besides the very fact of an extension of an already disputed “experimental phase”,
there has been no forthcoming justification as to why a suspension, rather than a termination of a state monopoly
would be conducive to the objective to attain an improved regulated market for gambling and better consumer
It is unclear to Malta as to what the significance of this suspension is, as the monopoly clause established by
Section 10 (6) of the draft Treaty is not being deleted. In Sebat Ince, the Court noted that with regards to the
situation prior to the notification of the draft Treaty, that “the public monopoly regime with regard to the
organisation and intermediation of sporting bets provided for by the Treaty on gaming and the regional laws
applying that treaty, which has been deemed by the national courts to be contrary to EU law, has persisted in
practice. (C-336/14 Sebat Ince para 91)
It must be recalled that the CJEU has held that “national legislation concerning a public monopoly on sporting bets
which, according to the findings of a national court, comprises restrictions that are incompatible with the freedom of
establishment and the freedom to provide services, cannot continue to apply during a transitional period. However,
the refusal to allow a transitional period does not lead to an obligation for the Member State concerned to liberalise
the market in games of chance if it finds that such a liberalisation is incompatible with the level of consumer
protection and the preservation of order in society which that Member State intends to uphold.
Under EU law as it currently stands, Member States remain free to undertake reforms of existing monopolies in
order to make them compatible with FEU Treaty provisions, inter alia by making them subject to effective and strict
controls by the public authorities, that State also being able to reform the existing monopoly in order to make it
compatible with EU law or to replace it with a system of prior administrative authorisation based on objective,
non-discriminatory criteria which are known in advance”. (Sebat Ince C-336/14 para 53 and 54, referring to
Stanleybet International and others C-186/11)
Malta believes that maintaining the suspended state of the monopoly does not satisfactorily and effectively “reform
the existing monopoly” or “replace[s] it with a system of prior administrative authorisation based on objective,
non-discriminatory criteria which are known in advance” as has been identified by the jurisprudence.
Rather, the proposed amendments reaffirm the possibility of a reversion to a state monopoly for sports-betting at
the end of the experimental phase and continues to leave operators in a state of uncertainty as to their future and
financial viability in the German sports betting market. The Explanatory Notes to the draft Treaty clarify that “the
temporary derogation from the principle of restricting the number of concessions should therefore be regarded as
an exception due to the progress of legal proceedings”. This suggests that a number of the German states wish to
an exception due to the progress of legal proceedings”. This suggests that a number of the German states wish to
return to a monopoly on sports betting post-2021, albeit the monopoly under the State Treaty has been held to
infringe EU law by the CJEU in Sebat Ince (see above).
Furthermore, there is no established timeline and visibility as to what would happen after the mentioned dates. In
Engelmann (C-64/08) the CJEU recognised that a concessionaire has the “need to have a sufficient length of time
to recoup the investments required by the setting up of a gaming establishment.” (para 48) The approach being
taken by the German authorities does not settle the question as to what reforms Germany intend to put into place,
in order to comply with the Court Jurisprudence, and whether it intends to open the sports betting market.
3.1 No regulation of online casino games
The Draft Treaty makes no reference to the ban on the provision of online casino games, and it can hence be
deduced that the German authorities envisage the existence of this ban in the foreseeable future. In Malta’s view
Germany has not satisfactorily shown why it has recognised the need to maintain such restrictive measures, and
this may hence constitute an unjustified restriction to the freedom to provide services. According to the CJEU,
while states may restrict the offer of gambling services within their territory, such restrictions must be justified by
imperative objectives in the general interest, such as consumer protection and the prevention of fraud.
Furthermore, such restrictions must be proportionate and suitable to achieving those objectives in order to limit the
betting activities within a territory in a consistent and systematic manner (C-243/01, Gambelli and others, para 67)
and furthermore, the reasons which may be invoked must be accompanied by an analysis of the appropriateness
and proportionality of the restrictive measure (C-42/02, Lindman para 25; C-100/01, Oteiza Olazabal). This
analysis has to date, not yet been shown by the German authorities. Malta would like Germany to provide further
clarity, in the form of evidence-based analysis, as to the justifiable reasons underpinning the ban on the offer of
online casino games.
3.2 Transparency of Licensing Procedure
Malta welcomes the fact that the Draft Treaty does not set a statutory limit on the number of potential online sports
betting licensees, and hence on the number of sports betting operators that may access the German sports betting
market. Malta also welcomes the attempt by the German authorities to address its concerns with ‘provisional
permissions’ as envisaged within the previous draft Treaty. Malta is hereby kindly asking Germany to clarify
whether sports betting licenses will be granted immediately with the entry into force of the proposed draft Treaty,
that is, the 1st of January 2020, particularly in light of the envisaged short duration of the licence.
Furthermore, the Maltese authorities would like Germany to provide guidance as to whether any further legal
instruments detailing the structure of the licensing procedure, and the nature of any conditions, will be published in
the near future. Malta is making this request for clarification in light of the CJEU pronouncement in Sebat Ince
where it was held that any systems requiring prior authorisation for the provision of gambling services “must be
based on objective, non-discriminatory criteria which are known in advance, in such a way as to circumscribe the
exercise of the national authorities’ discretion so that it is not used arbitrarily.” (C-336/14 Sebat Ince para 55).
In conclusion, Malta has a number of concerns in regard to the Draft Treaty and kindly requests the German
authorities to review its proposals, giving attention to the severe restrictions to the fundamental freedoms and
principles safeguarded by EU law. Malta is indeed concerned that a number of the provisions present within, or
absent from, the draft Treaty, taken with the already restrictive and disputed regime set by the existing State
Treaty, impose unnecessary, inconsistent and unjustified restrictions to the internal market freedoms enshrined in
EU law. Malta reiterates that such restrictions will not work towards the aim of eliminating illegal gambling, and that
the fight against illegal gambling may be brought about by less restrictive means and by regulatory measures that
are compliant with EU law. Finally, the draft Treaty does not provide a comprehensive solution to the regulation of
the gambling industry within Germany but instead seems to indefinitely promote a continuing state of uncertainty
and lack of effective regulation of only fraction of the entire gambling industry.
Contact point Directive (EU) 2015/1535
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