“The New Licensing regime is unlawful, in that it is a disproportionate restriction on the freedom to provide services guaranteed by Article 56TFEU”
“(1) For the purposes of this Act a person provides facilities for gambling if he — (a) invites others to gamble in accordance with arrangements made by him, (b) provides, operates or administers arrangements for gambling by others, or (c) participates in the operation or administration of gambling by others”
“33. Provision of facilities for gambling (1) A person commits an offence if he provides facilities for gambling unless — (a) an exception provided for in subsection (2) or (3) applies, or (b) an exception provided for by any of the following provisions applies — … (2) Subsection (1) does not apply to any activity by a person if — (a) he holds an operating licence authorising the activity, and (b) the activity is carried on in accordance with the terms and conditions of the licence. (3) Subsection (1) does not apply to any activity by a person if — (a) he acts in the course of a business carried on by a person who holds an operating licence authorising the activity, and (b) the activity is carried on in accordance with the terms and conditions of the licence. (3A) Section 36(3A) limits the application of this section in cases involving the use in Great Britain of certain facilities for remote gambling”
“3.13 The Commission will request only that information which it requiresand will avoid duplicating requests by seeking to obtain information from government bodies (for example, the Serious Fraud Office) and other regulators (for example, the National Lottery Commission, the Office of Fair Trading, the Office of Communications and the Financial Services Authority) where it is possible, and appropriate, to do so”
“3.24 The Commission will take coordinated regulatory action with government bodies and/or other regulators where it is appropriate to do so”
“According to the Court’s established case-law, restrictions on games of chance may be justified by overriding requirements in the public interest, such as consumer protection and the prevention of both fraud and incitement to squander money on gambling…”
“To demonstrate what it is required to demonstrate in order to enable a state to avail itself of the derogation from article 30 for which article 36 provides, it is necessary to adduce factual evidence (1) to identify the various mischiefs which the challenged restrictive measures were intended to prevent, (2) to show that those mischiefs could not have equally effectively been cured by other measures less restrictive of trade, and (3) to show that the measures were not disproportionately severe having regard to the gravity of the mischiefs against which they were directed. This last mentioned consideration involves the concept in Community law (derived principally from German law) called “proportionality”
“43. In addition, it should be recalled that the restrictions imposed by the Member States must satisfy the relevant conditions of proportionality and non-discrimination, as laid down in the Court’s case-law. Thus, national legislation is appropriate for guaranteeing attainment of the objective pursued only if it genuinely reflects a concern to attain it in a consistent and systematic manner (see, to that effect,Case C-42/07 Liga Portuguesa de Futebol Profissional and Bwin International EU:C:2009:519, paragraphs 59 to 61 and the case-law cited). 44. The mere fact that a Member State has opted for a system of protection which differs from that adopted by another Member State cannot affect the assessment of proportionality of the provisions enacted to that end. Those provisions must be assessed solely by reference to the objectives pursued by the competent authorities of the Member State concerned and the level of protection which they seek to ensure (Case C-176/11 HIT and HIT LARIX EU:C:2012:454, paragraph 25 and the case-law cited). 45. In the specific area of the organisation of games of chance, national authorities enjoy a sufficient measure of discretion to enable them to determine what is required in order to ensure consumer protection and the preservation of order in society and — provided that the conditions laid down in the Court’s case-law are in fact met — it is for each Member State to assess whether, in the context of the legitimate aims which it pursues, it is necessary to prohibit betting and gaming wholly or in part or only to restrict them and, to that end, to lay down more or less strict supervisory rules (see, to that effect, Joined Cases C-316/07, C-358/07 to C-360/07, C-409/07 and C-410/07 Stoß and Others EU:C:2010:504, paragraph 76, and Carmen Media Group EU:C:2010:505, paragraph 46). 46. Furthermore, it is not disputed that, unlike the introduction of free, undistorted competition in a traditional market, the presence of that kind of competition in the very specific market of games of chance, that is to say, between several operators authorised to run the same games of chance, is liable to have detrimental effects, owing to the fact that those operators would be led to compete with each other in inventiveness to make what they offer more attractive than what their competitors offer, and thereby to increase consumers’ expenditure on gaming and the risks of their addiction (Joined Cases C-186/11 and C-209/11 Stanleybet International and Others EU:C:2013:33, paragraph 45). 47. However, the identification of the objectives in fact pursued by the national legislation is, in the context of a case referred to the Court under Article 267 TFEU, within the jurisdiction of the referring court (see, to that effect, Dickinger and Ömer EU:C:2011:582, paragraph 51). 48. It is also for the referring court, while taking account of the information provided by the Court, to determine whether the restrictions imposed by the Member State concerned satisfy the conditions laid down in the Court’s case-law as regards their proportionality (see Dickinger and Ömer EU:C:2011:582, paragraph 50). 49. In particular, it is for that court to satisfy itself, having regard inter alia to the actual rules for applying the restrictive legislation concerned, that the legislation genuinely meets the concern to reduce opportunities for gambling, to limit activities in that area and to fight gambling-related crime in a consistent and systematic manner (see Dickinger and Ömer EU:C:2011:582, paragraphs 50 and 56). 50. In that regard, the Court has previously held that it is the Member State wishing to rely on an objective capable of justifying the restriction of the freedom to provide services which must supply the court called on to rule on that question with all the evidence of such a kind as to enable the court to be satisfied that the measure does indeed comply with the requirements deriving from the principle of proportionality (see Dickinger and Ömer EU:C:2011:582, paragraph 54 and the case-law cited). 51. It cannot, however, be inferred from that case-law that a Member State is deprived of the possibility of establishing that an internal restrictive measure satisfies those requirements, solely on the ground that that Member State is not able to produce studies serving as the basis for the adoption of the legislation at issue (see, to that effect, Stoß and Others EU:C:2010:504, paragraph 72). 52. Accordingly, the national court must carry out a global assessment of the circumstances in which restrictive legislation, such as that at issue in the main proceedings, was adopted and implemented.”
“… manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue.“ The Court did not proceed to explain what was meant by “manifest”
“The fifth question 82. By its fifth question, the national court asks whether Article 36 EEA precludes a national statutory rule prohibiting the provision and marketing of gaming for which no licence has been granted in Norway, but which is approved under national law in another EEA State.”
“These differences inevitably lead to confusion amongst consumers who may not be aware that their different gambling activities are subject to varying levels of protection”
“While it is true that the remote gambling operators it regulates are responsible for only 15% of the British consumer market, it is important to note that 55% of that market is regulated by the Gibraltar Gambling Commission, who confirms in his evidence…that he carries out that task with “six experienced staff: three of whom work on licence administration, three of whom work on regulation”
“121. It will rarely be appropriate to treat standing as a preliminary issue in the context of the substantive claim for judicial review, since both the sufficiency of the claimant’s interest in the outcome and the appropriateness of any discretionary remedy on matters that stand to be assessed in the context of the claim as a whole and the evidence adduced by the parties (see IRC v National Federation of Self-Employed and Small Businesses Ltd[1982] AC 617 per Lord Roskill at [656D – E]). Once the substantive stage has been reached, rather than serving as a “threshold issue”, it is appropriate for the sufficiency of the Claimant’s interest simply to be weighed in the balance when considering the question of relief (R (Dixon) v Somerset County Council [1998] Env LR 111 at [117])”
“This particular obstacle could, of course, have been overcome by an individual gambling services provider with EU law rights being joined as a Claimant. However despite the Secretary of State giving the Claimant due notice of this point in his pre-action protocol response to the letter of claim, that has not been done. The Claimant has no doubt made a conscious decision to bring the claim simply in the name of the association – a limited company established in Gibraltar – without joining any of its members. But it cannot therefore then purport to rely parasitically on rights which are available (if at all) only to some of those individual members. GBGA had said that the Secretary of State has “no answer” to its argument based on the rights of Yggdrasil…But the answer is a short one. Yggdrasil is not a Claimant. If it were, the Court could have conducted an examination of the impact of such rights under EU law as Yggdrasil may have established. But no evidence of that has been adduced. Given the extremely tight timetable, it is too late for Yggdrasil to be added as a Claimant now, even if the GBGA had made an application for such joinder”
“1. A declaration that the United Kingdom is in breach of its obligations under Article 119 of the [EEC Treaty] and the [The Equal Pay Directive] by providing less favourable treatment of part-time workers (most of whom are women) than are full-time workers (most of whom are men) in relation to the conditions for receipt of statutory redundancy pay and compensation for unfair dismissal. 2. A declaration that the United Kingdom is in breach of its obligations under [The Equal Treatment Directive] by providing less favourable treatment of part-time workers (most of whom are women) than of full-time workers (most of whom are men) in relation to the conditions for receipt of statutory redundancy pay and compensation for unfair dismissal”
“The matter to which the EOC’s application relates is essentially whether the relevant provisions of the Act of 1978 are compatible with European Community law regarding equal pay and equal treatment. Has the EOC a sufficient interest in that matter? Under section 53(1) of the Act of 1975 the duties of the EOC include: “(a) to work towards the elimination of discrimination, (b) to promote equality of opportunity between men and women generally…”
“The Treaties apply to Gibraltar as a European territory for whose external relations a Member State is responsible. This shall not imply changes in the respective positions of the Member States concerned”
“The question whether the territory of the United Kingdom, the Channel Islands and the Isle of Man can be treated as the territory of a single Member State for the purposes of the application of Articles 23 EC, 25EC, 28EC and 29EC.” (ibid p I-9595). The Court recited the previous explanation given by the UK of its relationship with Jersey (in Roque (supra)). Jersey was a: “… semi-autonomous dependency of the British Crown, which is represented on Jersey by the Lieutenant Governor. The United Kingdom, on behalf of the Crown, is responsible for defence and international relations”
“… neither, because of other aspects of the status of those Islands, can relations between the Channel Islands and the United Kingdom be regarded as similar to those between two Member States…”
“Such wording suggests that, for the purposes of the application of those Community rules, the United Kingdom and the Islands are, as a rule, to be regarded as a single Member State.”
“Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby”
“Gibraltar is currently a British Crown Colony. It does not form part of the United Kingdom”
“11. As for the European law issues it was not necessary to construe the UK tax charge differently or disapply it because the EU freedoms did not apply as between the UK and Gibraltar, given the particular treatment of that territory under the relevant European legislation, and the situation was therefore one which was to be regarded as wholly internal to the Member State (the UK). In relation to the Gibraltar issue we declined to make areference to the CJEU. The fact that the Gibraltar company provided services to other Member States, that it had employees from other Member States, or that Peter Fisher had lived in Spain for a period while setting up the operation in Gibraltar did not provide a sufficient foreign connection for the purposes of EU law to engage the relevant EU freedoms.”
“65 In this case, it must be observed, first, that, in view particularly of the conclusion reached in paragraph 54 of this judgment, a contribution such as that in issue in this case which is calculated by the PEMB by reference to the quantities of potatoes produced by the party concerned and exported from Jersey to the United Kingdom certainly constitutes a charge imposed on goods despatched from one region to another in the same Member State. Second, it must be added that even though the 2001 Act covers, according to its wording, only potatoes despatched to the United Kingdom for consumption there, that does not rule out the possibility that such potatoes, once within the United Kingdom, might then be re-exported to other Member States, with the result that the contribution in question may be levied on goods which, after having passed through the United Kingdom in transit, are in fact exported to other Member States. 66 In this case, the possible development of such a pattern of re-exports from the United Kingdom to the other Member States is certainly conceivable given that, as appears from the information provided to the Court, almost all the Jersey Royal potatoes grown on Jersey are traditionally exported to the United Kingdom.”