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Gambling activities involve risks relating to crime and addiction. Governments may wish to prevent the occurrence of those risks: preventing harm is a more effective approach than remedying harm. A prominent legal instrument in the context of taking a preventive approach towards risks is the precautionary principle.Footnote 1 Counsels voiced that the European courts should apply this principle in their gambling case law.Footnote 2

It would go beyond the scope of this book to inquire all issues raised by the controversial precautionary principle. This chapter provides a brief excursus on the potential applicability of the precautionary principle in European gambling law. The notion, genesis and scope of the precautionary principle in European law must be presented (Sect. 10.1). It is then examined whether the precautionary principle is suitable to be applied in the gambling jurisprudence according to the principle’s criteria and rationale (Sect. 10.2). Finally, a brief account of the gambling case law is given that is informed by elements of the precautionary principle (Sect. 10.3).

1 Notion, Genesis and Scope of Application

1.1 Notion

Public authorities need to be able to act quickly and effectively when confronted with the risk of a serious threat to human health or related public goods. The precautionary principle is the legal instrument enabling governments, under certain conditions, to take protective measures when confronted with scientific uncertainty regarding the existence or extent of a risk.Footnote 3 The precautionary principle is not defined in EU primary law but has been largely shaped by the case law of the Court of Justice, the General Court and the EFTA Court. In a landmark decision, the EFTA Court also defined its criteria of application.Footnote 4

The constituent elements of the principle are a risk to human health (or related goods) and scientific uncertainty with regard to the existence and extent of the risk. The principle applies where “there are reasonable grounds for concern that the potentially dangerous effects on the environment, human, animal or plant health may be inconsistent with the high level of protection chosen for the Community.”Footnote 5

1.2 Genesis

The precautionary principle is a legal instrument largely defined and shaped by European case law. It was only introduced into EU primary law by the Maastricht Treaty in 1992 in relation to environmental policy. The limited mentioning in the Treaties has remained in place even under the consolidated Article 191(2) TFEU.Footnote 6 The principle was further codified in EU secondary (soft) law by the Commission Communication on the precautionary principle. The Communication aimed “to inform all interested parties […] of the manner in which the Commission applies or intends to apply the precautionary principle when faced with taking decisions relating to the containment of risk.”Footnote 7

The first manifestations of the principle in EU law occurred far prior to its integration by the Maastricht Treaty. Alemanno mentioned an obiter dictum in the 1983 judgment Sandoz as the first judicial recognition at EU level.Footnote 8 Advocate General Mischo saw Sandoz as “an application of the precautionary principle before the fact.”Footnote 9 The wide margin of appreciation granted in Sandoz and the wording chosen in that judgment are reminiscent of the case law on gambling where Member States are also free to choose their protection level:

in so far as there are uncertainties at the present state of scientific research it is for the Member States, in the absence of harmonization, to decide what degree of protection of the health and life of humans they intend to assure.Footnote 10

Alemanno found the BSE judgments Footnote 11 essential, even though the Court of Justice did not expressly refer to the precautionary principle in these cases. They paved the way for the development of the principle in EU law and extended the principle beyond environmental law.Footnote 12 One of those judgments emphasised two aspects that justify a wide margin of appreciation and which were discussed in this book: seriousness of the risk and urgency of the situation.Footnote 13 It was not before 2000 that the Court of Justice expressly mentioned the principle in Bergaderm. In the same case, the General Court had essentially referred to the principle without however mentioning its name.Footnote 14

The conditions under which a Member State could rely on the precautionary principle remained unexplored. It was the EFTA Court that defined those conditions in its landmark Kellogg’s judgment.Footnote 15 Similar to the Sandoz case of the Court of Justice, the Kellogg’s case involved the fortification of food with vitamins. In contrast to its sister court, the EFTA Court however chose a stricter review of the national measures. The Court of Justice only asked Member States to authorise products “when the addition of vitamins to foodstuffs meets a real need.”Footnote 16 The EFTA Court however underlined the role of science and of a comprehensive risk assessment.

The mere finding by a national authority of the absence of a nutritional need will not justify an import ban, a most restrictive measure, on a product which is freely traded in other EEA States.Footnote 17

The General Court and the Court of Justice integrated elements from the Kellogg’s ruling in their case law. Referring to the Kellogg’s judgment, the General Court and the Court of Justice highlighted that preventive measures could not be based on a “purely hypothetical approach” and thus underlined the role of science in verifying suppositions.Footnote 18 Most importantly, the Court of Justice overruled its earlier Sandoz approach in the case Commission v Denmark, which again involved fortified foodstuffs.Footnote 19 In a classic example of judicial dialogue, the Court of Justice integrated the criteria that the EFTA Court had applied in Kellogg’s.Footnote 20 These judicial criteria will be used below to assess the potential role of the precautionary principle in the case law on gambling.Footnote 21

1.3 Scope of Application

The genesis of the precautionary principle shows that the traditional fields of application of this principle are environment and foodstuffs. The related public interest objectives are the protection of the environment and of the health of humans. The first codification in EU primary law occurred in relation to environmental policy,Footnote 22 and the first vague references by the Court of Justice were made within the area of public health (foodstuffs, protection of human health). There is no cogent reason to a priori exclude the application of this principle in other fields and to protect other public interest objectives. The Court of Justice has shown that it does not limit the principle to the scope granted in the EU Treaties but has expanded it to public health issues.Footnote 23 The Court of Justice has dealt with gambling addiction as a consumer protection issue (as opposed to a public health issue). While public health issues seem to be of a more severe nature in the view of the Court of Justice than consumer protection issues, it would be premature to automatically exclude an application of the precautionary principle. Ultimately, both justification grounds relate to the protection of health – one with an emphasis on the consumer, and the other with an emphasis on the human being.

2 Precautionary Principle in Gambling Law: Application, Rationale and Criteria

2.1 Current Application in Gambling Case Law

Vlaemminck demanded the recognition of the precautionary principle in the field of gambling.Footnote 24 Upon the delivery of the opinion in Sporting Exchange/ Ladbrokes, he noted that Advocate General Bot had now supported the application of the precautionary principle in the gambling sector. Member States did not have to wait until actual clandestine networks developed but could invoke crime concerns and take preventive measures.Footnote 25

A closer analysis of the Advocate General Bot’s opinion shows a more ambiguous picture. The Commission had pointed to the burden of proof of the Member State and the relevant obiter dictum in Lindman. It had then noted that the order for reference contained no indications that clandestine gambling was indeed a serious problem in the Netherlands.Footnote 26 By contrast, Advocate General Bot found that whenever the protection of human health was at stake, governments could restrict fundamental freedoms without having to wait until the risk turned into reality. Without further argumentation, the Advocate General added, “[i]n my opinion, the same must apply in relation to the protection of society against the risk of a serious disruption of public order.”Footnote 27 Beside the abrupt switch from the preventive protection of human health to crime concerns, it is noteworthy that none of the two decisions quoted by the Advocate General discussed the precautionary principle.Footnote 28 Advocate General Bot alluded to the language of the precautionary principle in Sporting Exchange / Ladbrokes while not referring to the principle. The choice of language suggests that the Advocate General wished to argue with the consequences of the precautionary principle (preventive restrictions and wide margin of appreciation), without wishing to mention the principle or to deal with the principle’s criteria of application. Unlike the Advocate General, the Court of Justice did not enter this discussion and avoided language reminding of the precautionary principle.Footnote 29

Neither the Court of Justice nor the Advocates General nor the EFTA Court referred to the precautionary principle to justify national restrictions of fundamental freedoms in the field of gambling. Only Advocate General Bot alluded to wording sometimes used in relation to the precautionary principle or, more broadly, preventive approaches. He used his words not in relation to gambling addiction concerns but crime concerns. Also, he did not discuss why the Court’s earlier considerations, which were made in relation to health, should also apply in relation to crime.

The discussion around the precautionary principle illustrates well the initially noted heated debate surrounding gambling issues. Claims from both sides can be noted that are not fully backed up by case law or empirical evidence. An industry representative pointed out that the precautionary principle could only apply where there was evidence of the risk of potential harm and that the Netherlands had not done that. But he clearly went too far by claiming that “no recent medical studies have shown that sports betting is prone to give rise to such harm” since the quoted study was not intended to nor could it offer such conclusive evidence.Footnote 30

2.2 Criteria

The EFTA Court in its Kellogg’s judgment defined the criteria that Member States needed to meet in order to rely on the precautionary principle.Footnote 31 The General Court as well as the Court of Justice integrated the EFTA Court’s approach and the relevant criteria into EU law in Pfizer and Commission v Denmark.Footnote 32 Similar to the factual situation at stake in Kellogg’s, gambling is not regulated at European level and the precautionary principle would apply to the gambling regulation adopted at national level. In the following analysis, the criteria established in Kellogg’s are translated into the setting of national gambling regulation, including the requirements that Member States would have to comply with if the precautionary principle were to apply.Footnote 33 In this regard, the role of scientific research and empirical evidence is key.

For the purpose of the analysis, the criteria from the case law are grouped into three broad categories: (1) Scientific uncertainty regarding a risk to human health: identification of health consequences and comprehensive risk evaluation; (2) Address the issue of protecting human health and pass evidence-based measures; and (3) Proportionate, consistent, transparent, non-discriminatory measures.

2.2.1 Scientific Uncertainty: Identification of Health Consequences and Comprehensive Risk Evaluation

In the absence of harmonisation of rules, when there is uncertainty as to the current state of scientific research, it is for the Contracting Parties to decide what degree of protection of human health they intend to assure […]. It is within the discretion of the Contracting Party to make a policy decision as to what level of risk it considers appropriate. Footnote 34

A proper application of the precautionary principle presupposes, firstly, an identification of potentially negative health consequences […], and, secondly, a comprehensive evaluation of the risk to health based on the most recent scientific information. Footnote 35

When the insufficiency, or the inconclusiveness, or the imprecise nature of the conclusions to be drawn from those considerations make it impossible to determine with certainty the risk or hazard, but the likelihood of considerable harm still persists were the negative eventuality to occur, the precautionary principle would justify the taking of restrictive measures. Footnote 36

This first group of criteria offers the opportunity to consider the very rationale of the precautionary principle. It is designed to offer Member States the possibility to act quickly and effectively; to protect their populations in situations where there are indications for a risk to public health. There is scientific uncertainty as to the existence or extent of the risk. The seriousness of the risk (potential severity of negative consequences or potential range of its spread) justifies taking precautionary measures, even if in the long-run, it should turn out that the risk does not materialise or only with less serious effects.

Scientific uncertainty, as to the existence or extent of the risk, is a key element of the precautionary principle. A typical application can concern food additives or other substances whose negative consequences are suspected but essentially unknown. The existence of the risk of gambling disorder has been demonstrated globally in countless epidemiological studies. Such studies are also available for European countries. The detrimental consequences of excessive gambling have been known for centuries and described in novels as shown in the introduction. While these consequences used to be historically attributed to moral failure, gambling disorder has been recognised as a medical disorder since the publication of DSM-III in 1980. Contrary to the typical situation under the precautionary principle, there is scientific certainty as to the existence of the risk to gambling addiction. Furthermore, the DSM provides diagnostic criteria that describe central negative consequences of gambling disorder. Scientific research has thus “identified the potentially negative health consequences.”Footnote 37

Epidemiological studies around the globe also show the extent of the risk of gambling disorder. Prevalence rates globally show that the past-year prevalence of gambling disorder ranges from about 0.25 to 1 % among the general population. These rates vary surprisingly little between various countries in spite of very different regulatory approaches (see Sect. 9.1.2.2).

The case law further demands a “comprehensive evaluation of the risk to health based on the most recent scientific information.”Footnote 38 It would need to be seen in relation to each gambling case to which extent a Member State did proceed to such comprehensive risk evaluation and whether it based the evaluation on most recent scientific findings. If a government were to argue scientific uncertainty due to the lack of epidemiological studies from its jurisdiction, this may raise the question as to what ‘scientific uncertainty’ is supposed to mean normatively. Can a public policy be identified in the concerned Member State inquiring gambling-related harm? Are financial resources available for researchers to inquire about the extent of gambling addiction?

In Kellogg’s, the Court found that the Norwegian government had not shown a comprehensive risk assessment. The assumption of the government was that it would need to approve all future applications if it permitted food enrichment in one area. The Court in contrast found that “authorities would at any subsequent time be in a position to assess new applications on their merits.”Footnote 39

2.2.2 Protecting Human Health and Adopting Evidence-Based Measures

The national authority must address the issue of the protection of health and life of humans. A purely hypothetical or academic consideration will not suffice. It is not only the specific effects of the marketing of a single product [… but] the aggregate effect [from other sources]. Footnote 40

Measures taken by a Contracting Party must be based on scientific evidence. Footnote 41

Such restrictive measures must be non-discriminatory and objective, and must be applied within the framework of a policy based on the best available scientific knowledge at any given time. The precautionary principle can never justify the adoption of arbitrary decisions, and the pursuit of the objective of “zero risk” only in the most exceptional circumstances. Footnote 42

The first quote from Kellogg’s shows that the objective of protecting human health must genuinely be addressed and the risk to health be put in a bigger public health setting. This book demonstrated that gambling addiction is not of a peculiar nature; it shares manifold commonalities with other expressions of addiction. The revised DSM-5 categorised it under ‘substance-related and addictive disorders’, together with substance-related forms of addiction (alcohol, opioid, etc.). Gambling addiction cannot be studied as an isolated phenomenon; a holistic perspective on addiction is needed. Where research gaps remain regarding gambling addiction, empirical evidence and best practice from related disorders can inform public health policies on gambling addiction.

The question therefore is whether a public policy can be identified that genuinely addresses addiction issues. Is a consistent and systematic policy practised? Are there public education (prevention) programmes in place? Is treatment available and affordable for those who need it?

The criteria also demand “evidence-based measures.”Footnote 43 The whole policy framework, that is, the public health policy towards addiction issues, must be “based on the best available scientific knowledge at any given time.”Footnote 44 Member States would first have to identify the health consequences of gambling and perform a comprehensive risk evaluation (see earlier under (1)) and subsequently pass measures that are based on empirical evidence. For that purpose, it would not be enough to rely on ‘some’ scientific literature. The use of the “best available knowledge at any time” Footnote 45 includes the reliance on the leading international scientific research and a continuous evaluation of the situation as empirical evidence evolves over time.

There is also a broader consideration as to the rationale of the precautionary principle. The typical consequence of the reliance on the precautionary principle is to ban the import, production and offer of a substance on the territory of the Member State. This was already the case in the early days of the principle when an increasing number of Member States invoked public health concerns in situations of alleged scientific uncertainty. The BSE cases served as illustrative examples. Specific substances contained in foodstuffs were banned on the national territory and stopped from importation.Footnote 46 The expected consequence of the reliance on gambling-related health risk would be the prohibition of (all or certain) games of chance and the consequent enforcement of that ban.Footnote 47 Some EU/EEA Member States have prohibitive regulatory approaches while others have single right holders or licensees in place.

In this context, it must be considered that the effects of games of chance seem to be more complex than those of a classic toxic substance. With the increase of the latter’s dose, infection rates among the population will normally increase proportionately to the exposure (exposure-infection effects). In relation to exposure to games of chance, it was shown that such proportionate infection reactions have not materialised. The development of prevalence rates suggests social adaptation (see Sect. 9.2.5.2).

2.2.3 Proportionate, Consistent, Transparent and Non-Discriminatory Measures

However, under the requirement of proportionality, the need to safeguard public health must be balanced against the principle of the free movement of goods. The mere finding by a national authority of the absence of a nutritional need will not justify an import ban, a most restrictive measure, on a product which is freely traded in other EEA States. Footnote 48 [National measures] must be proportionate, non-discriminatory, transparent, and consistent with similar measures already taken. Footnote 49

The case law on the precautionary principle demands that measures are proportionate, consistent, transparent and non-discriminatory. In the gambling cases, the Court of Justice and EFTA Court have also demanded that measures are non-discriminatory and proportionate, that is, suitable and necessary. In particular, they demanded ‘consistent and systematic’ policies. This group of criteria from the precautionary principle is familiar to the gambling case law and does not require further elaboration.

3 Marginalisation of the Role of Empirical Evidence in the Gambling Case Law

The present analysis shows that the scope of the precautionary principle has been expanded by the case law far beyond environmental policy. In relation to the scope, one may not exclude from the outset the application of the precautionary principle in the area of gambling addiction. Upon an examination of the principle’s rationale and its criteria of application, it can be concluded that the principle is not well suited to address the risks relating to gambling addiction. It can hardly be argued that there is ‘scientific uncertainty’ as to the existence and extent of gambling disorder. There is solid empirical evidence on the existence, extent and the negative consequences of gambling addiction.

This analysis has also shown an irony that accompanies the jurisprudence of the Court of Justice on gambling. The irony regards the role of scientific research and empirical evidence. Counsels of Member States have demanded that the precautionary principle should apply in the field of gambling.Footnote 50 That principle brings understandably a wide margin of appreciation for Member States. As seen above, the criteria of this principle heavily emphasise the role of science. National measures must be based on “scientific evidence,”Footnote 51 in fact, the “best available scientific knowledge at any given time.”Footnote 52 A scientific approach is further demanded to identify the negative health consequences and to perform a comprehensive evaluation of the risk to health based on the most recent scientific information.Footnote 53

By contrast, the role of science and empirical evidence in relation to gambling addiction has been marginal in the case law of the Court of Justice. Although there is no genuine ‘scientific uncertainty’ as to the existence and extent of gambling addiction, the Court of Justice never required that gambling-related measures needed to be ‘evidence-based’. Also, there has been no mention of a requirement similar to a ‘comprehensive risk evaluation’ in the gambling cases.

Certainly, in an obiter dictum in Lindman, the Court of Justice noted that the file referred to it did not contain any “statistical or other evidence.”

In the main proceedings, the file transmitted to the Court by the referring court discloses no statistical or other evidence which enables any conclusion as to the gravity of the risks connected to playing games of chance or, a fortiori, the existence of a particular causal relationship between such risks and participation by nationals of the Member State concerned in lotteries organised in other Member States.Footnote 54

Furthermore, the Court of Justice demanded in Gambelli that Member States had to apply “consistent and systematic” policies.Footnote 55 From that basis, an evidence-oriented jurisprudence could have been developed. This has not been the case as the subsequent judgments of the Court of Justice showed. Apart from a couple of minor exceptions,Footnote 56 the role of science and empirical evidence in relation to gambling addiction remained marginal. There are risks inherent to such approach. Zander noted that the marginalisation of empirical evidence could result in approving irrational and untargeted restrictions.Footnote 57 The interests of consumers, who are supposed to be protected, may ultimately not be duly served. It is certainly understandable that the Court of Justice does not wish to discuss at length complex research on gambling disorder. Yet, there is nothing that would prevent it from requiring the referring courts to examine whether national gambling policies are based on scientific research and best practice.

In line with this general marginalisation of the role of science and empirical evidence the Court of Justice set aside doubts of the referring German courts in Markus Stoss. While the referring courts noted that the government had not proceeded to studies, the Court of Justice found that a Member State did not need to produce studies to justify the existence of a gambling monopoly. Such conclusion was based on a misreading of Lindman.Footnote 58 It thus turned out that Advocate General Mengozzi too had ‘misread’ Lindman.Footnote 59 Certainly, an emphasis on empirical evidence and best practice could have objectivised the discussion of the gambling-related risks. It is hard to achieve a rational and humane addiction policy when the setting is dominated by value-loaded claims rather than empirical evidence.Footnote 60

One should stress that a more substantial role of scientific research, empirical evidence and best practice does not necessarily mean a narrowed margin of appreciation for Member States. The Court of Justice could simply scrutinise whether national policies were based on scientific findings rather than on other grounds. Nothing would prevent the Court to grant wide discretion under the label of ‘medical discretion’. The latter can be granted in situations when complex scientific data must be weighed. It is undisputed that domestic authorities are in a better position to proceed to a detailed weighing of different factors than the Court of Justice or national courts.