The Swedish Monopoly on Gambling - How to address the shifting reality of the Swedish gambling market

Abstract: Gambling and the national gambling markets has so far not been harmonised through any Community law regulation or directive. Instead gambling is covered by the general principles of Community provisions for the free movement of services article 49, and the closely connected article 43 regulating the freedom of establishment. This has been established through the case law of the ECJ. The Member States of the Community have intended to keep the control over the national gambling markets. By reference to the moral, religious or cultural aspects of gambling, and hence the harmful effects gambling may have on individuals and the society in whole, certain restrictions to the general principles of the Community has been considered legitimate. Community law emphasise the proportionality of the aims of the national regulatory regimes. The Swedish regulatory regime could be considered as a highly controversial attempt to regulate the Swedish gambling market. Public owned companies are entitled to the exclusive rights of operating the market. The Swedish monopolies on retail of alcohol, pharmaceuticals and gambling have all been, or are currently, up to examination by the Community institutions. As of the development of cases from the ECJ, concerning national restrictions on gambling, it is possible to state several conclusions. Even though the initial cases were rather tolerable towards national restrictions to free movement of services, it almost felt like the Member States through Schindler, Läärä and Zanetti were given free manoeuvre to regulate gambling and gaming, the Court clearly framed the conditions or requirements for the national restrictions in order not to be consistent with the Treaty. In later cases these conditions have been even more emphasised. The United Kingdom and the Netherlands constitutes two interesting examples of how different Member States have chosen to regulate their gambling and gaming market. Even though both States have public interests governing their regulatory regimes, they have chosen different forms than the Swedish example for their gambling regulations. The UK is a good example of a Member State with long tradition in betting and gambling but with a rather open market competition. The regulatory system of Netherlands in turn has chosen both to be quite restricting in some areas and more liberal in others. The Swedish monopoly is currently under intense examination. The monopoly are challenged both in national Courts as by the Commission. A review by the ECJ will probably be reality in not a too long time phase. The enforced competition through internet and mobile communication is met by means of more marketing and new gambling forms by the Swedish gambling monopolies. This approach of encountering the shifting reality of the gambling market is problematic in a Community law perspective. The approach does probably not express a legitimate aim of general interest, as required by the ECJ. The gambling market has been developing in a furious way during the last 10 years, a period corresponding to the Swedish membership to the European Union. The new communication technology has decreased the measures to uphold national borders, for good and for bad. The gambling monopoly in Sweden is active in a shifting reality, where it has to adjust not only to a shifting market but also to a legal reality other than ten years ago.