Proportionality challenge to new gambling laws rejected

10/10/14

Mr Justice Green handed down judgment today in Gibraltar Betting & Gaming Association Ltd v Secretary of State for Culture, Media & Sport [2014] EWHC 3236 (Admin), a challenge to the legality of the Gambling (Licensing and Advertising) Act 2014.

The 2014 Act creates a new regulatory regime for internet-based gambling in Great Britain. Under the new regime, all remote gambling operators whose services are capable of being used in Great Britain will be required to obtain a licence from the British Gambling Commission. Previously, only those operators with key equipment in Great Britain were required to obtain a licence, with the result that the majority of the remote gambling market was controlled by operators in offshore jurisdictions, such as Gibraltar.

The Gibraltar Betting & Gaming Association, a trade association representing gambling operators based in Gibraltar, brought a challenge to the Act on the basis that it was a disproportionate and therefore unlawful infringement with the freedom to provide services in Article 56 TFEU. It also alleged the new regime was discriminatory and irrational.

In his judgment, Green J set out an exhaustive analysis of the standard of review applicable to proportionality challenges to national measures on the basis of EU law. Having done so, he decisively rejected the challenge. In what he considered to be a “clear cut case”, he held that the new regime served a series of legitimate objectives, and that there was no reason to doubt Parliament’s judgment that it would be effective. 

The Government of Gibraltar intervened, and the judgment also contains a series of important observations on the constitutional status of Gibraltar from the perspective of EU law.

The judgment is here.