Woglr september 2012

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gambling law Schleswig-Holstein

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Woglr september 2012

  1. 1. INTHISISSUE The Draft Act to repeal the Schleswig-Holstein GamingAct and adopt the Interstate Treaty on Gambling was submitted to the European Commission (EC) on 6 September, by the Government of Schleswig- Holstein, “stipulating that the Gaming Act [once revoked] will continue to be applied to licences that have already been granted,” said Matthias Spitz, Attorney at Melchers. “It is interesting that the government came to the conclusion that notification to the EC was necessary, given it will prolong the entire proce- dure and prevent a swift repeal,” said Spitz. “The EC now has three months to review the provisions and, if necessary, issue a detailed opinion to object to the provisions.”In the meantime licenses will continue to be issued. The EC “has no direct power to stop the govern- ment repealing theAct,”said Dr. Wulf Hambach, Partner at Hambach & Hambach. “However it can begin infringe- ment proceedings if the provi- sions contravene EU law.”Spitz thinks that “If the EC issues a detailed opinion, the draft act will most likely fail.” The Interstate Treaty on Gambling, which came into force in the other 14 Länder on 1 July, unlike the Gaming Act, “has been criticised by the EC, particularly because of the limitation of 20 licences and the exclusion of online poker and casinos,” said Dr. Sebastian Cording, Partner at CMS Hasche Sigle. “Instead of Schleswig-Holstein following the other states it might have been a better idea if the other states had followed Schleswig- Holstein.” “The Interstate Treaty is incoherent and not in confor- mity with EU law,”said Martin Arendts, Attorney at Arendts Anwalte. “The licensing proce- dure is a complete mess and certainly not in conformity with rules set out by the CJEU.” Arendts explains:“The licensing procedure has to be transparent and must be based on objective, non discriminatory criteria known in advance.” However, “the criteria for issuing the 20 Interstate licenses have not been published yet,” despite the application process being underway. “The Interstate Treaty is not transparent at all,” said Hambach. “Applicants are applying for licenses without any idea of the technical requirements, criteria or fees involved.” “Until the European Court of Justice decides whether the Interstate Treaty on Gambling infringes EU law there will be legal uncertainty,”said Cording. Hambach concludes, “Legal battles:that is my prediction for 2013.” A New York Federal District Judge ruled on 21 August that poker is mostly a game of skill, so does not constitute gambling under the Illegal Gambling BusinessAct (IGBA),in the case of United States v DiCristina. “Judge Weinstein’s validation of this position is likely to have a significant effect on the way in which other judges analyse these issues,” said David B. Deitch, Attorney at Ifrah Law. While Deitch believes that the Court’s decision“will add to the building momentum for legalised online poker in the US”,Frank Catania,President of Catania Gaming Consultants, referred to Judge Weinstein’s decision as a“surprise”but said that “it does not indicate that US lawmakers are warming to the legalisation of online poker.” Linda J. Shorey, a Partner at K&L Gates, observes that despite this non-binding decision, other Courts may reach “a different conclusion” on the issue. Besides, said Catania,the decision“will most likely be appealed and could be reversed by an appellate Court.” Despite the ruling, Lawrence DiCristina, who was arrested for hosting a no-limits Texas Hold’em game in a warehouse, was still found liable for prose- cution under New York State’s stricter state law. Judge Weinstein’s ruling “may be useful in states that apply a similar standard,” said Shorey. “But not all states define gambling in the same way or apply the same criteria to decide if an activity constitutes gambling.” For opponents of internet poker, “other federal statutes are available besides the IGBA.” Schleswig-Holstein notifies the EC to join the Interstate Treaty British betting operator Betfair filed a formal complaint with the European Commission (EC) on 10 September, regard- ing the recently adopted Cypriot gambling legislation, ‘which could lead to betting exchanges being prevented from operating in their current format in Cyprus,’reads a state- ment by Betfair. “The complaint relates to interference with the freedom of services,” said Elias Neocleous, Partner at Andreas Neocleous & Co.“However,this is not an absolute freedom, the EC allows restrictions justified on grounds of public policy and security.” Betfair’s complaint states that any attempted ban on betting exchanges is discrim- inatory and a disproportionate breach of EU law. But, contin- ues Neocleous, “the Cyprus government maintains that it must observe the highest standards of protection against money laundering, and that betting exchanges pose an unacceptably high risk.” “If the ECJ finds that the gambling law is in contraven- tion of EU law the Cyprus Republic will be required to make amendments,”concludes Neocleous. “This could, however, take years to resolve.” Complaint filed against Cyprus gambling law US Judge’s ruling that poker is a game of skill “could be reversed” Match-fixing 03 Terms & Conditions The Spreadex case 04 UK Point-of- consumption tax 06 US iGaming update 09 Social Gambling Facebook’s app 10 EU The prohibition of foreign advertising 12 India The potential for online gambling 14 SSEEPPTTEEMMBBEERR 22001122

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