2010-02-23 – by Attorney Dr. Stefan Lausegger (Column)
Criminal proceedings before a district court for illegal gambling could have a significant impact on the future awarding of casino concessions under the Austrian Gambling Act. Currently, all twelve casino concessions, which are classified as service concessions under procurement law and therefore only have to comply with a diluted tendering regime, are held by Casinos Austria AG. The concessions for Vienna, Graz, Linz, Salzburg, Innsbruck and Bregenz expire in 2012.
A German citizen did not want to wait for this to happen and in 2004 began offering services in Upper Austria that essentially fall under the category of "large-scale gambling". At first he was unlucky: the Linz District Court convicted him of illegal gambling under Section 168 Paragraph 1 of the Criminal Code. However, the Linz Regional Court then referred several questions to the ECJ for a preliminary ruling. On February 23, 2010, Advocate General Jan Mazak formulated his final submissions, which the ECJ follows in the majority of cases, although not always. In the opinion of the Advocate General, the requirement in Section 21 of the Gambling Act that the license holder must be an Austrian joint-stock company is not compatible with the freedom of establishment regulated in Article 43 of the EC Treaty. The fact that all licenses for games of chance and casinos are granted on the basis of a regulation that excludes non-Austrian competitors from the tender process also violates both the freedom of establishment and the freedom to provide services (Article 49 of the EC Treaty). If the opinion of the Advocate General holds up before the ECJ, whose ruling is expected in time for the upcoming tender for casino licenses and the amendment to the Gambling Act, this would on the one hand have an impact on the conviction that gave rise to the decision. On the other hand, however, it could also happen that foreign providers of casino services enter the Austrian market in the not too distant future. It is doubtful whether such a development, which will be associated with more aggressive competition for players, is positive for player protection.