Questions

Question 1 (25 points)

Online Betting Ltd. is a company, based in Ireland, involved in digital betting. The company wants to expand its betting activities in the European Union, in particular in Germany, Belgium and Spain. With a view to offer digital betting services to Spanish consumers, Online Betting Ltd. seeks to obtain a license from the Spanish gaming authority. To qualify for an digital betting license, all operators should provide evidence that they meet certain requirements, including financial, technical and social requiremetns of the business.
After a period of liberalization the Spanish government (after being increasingly confronted with Spaniards having become addicted to betting) intends to adopt more stringent rules to avoid the possible negative effects associated with the betting industry. It therefore proposes to amend the Spanish legislation and include requierements for obtaining an digital betting license the requirement that the operator should also have a fixed establishment in Spain. You are asked as a legal advisor to the Spain government to assess whether the proposed amendment complies with EU law, in particular with the free movement of services provision. Please argue whether and why EU law may be violated and/or whether and why a justification ground is available for the Spanish state? Please refer to relevant case law of the ECJ and explain whether or not the Services Directive may be relevant here.

Question 2 (25 points)

Question 2a (12 points)

Juanes is of Spain nationality. He came one year ago to the Netherlands to study at the Utrecht University. He is an amateur football player in the Netherlands. The Dutch ministry of education gives 450 euro per year for each amateur sportsmen as expenses for the costs, since it wants to encourage doing sports. This subsidy is given to persons of Dutch nationality only. Suppose that Charles wants to fight a rejection of a claim for this subsidy. Which arguments can he put forward?

Question 2b (13 points)

Suppose that also another Spanish student, Pedro, is playing in this football team, and is refused this subsidy. The student came two years ago as a member of the family of his father and mother who both found a job in the Netherlands. Does the approach for Juanes also apply for Pedro?

Question 3 (25 points)

Question 3a (15 points)

To be recruited as an supervisor in a special unit of the police service (which needs to perform in case of emergency) national legislation requires one to be no older than 35 years. Is this
requirement contrary to EU legislation?

Question 3b (10 points)

If national legislation required one to be male in order to be recruited as an supervisor in the police service in general, which (art. 19 TFEU-)directive would be applicable to conclude on whether it regards an infringement of EU legislation? On the basis of which requirement does one need to conclude that EU legislation is being infringed?

Answers

Question 1 (25 points)

This case involves the free movement of services (Article 56 TFEU). Digital betting activities constitute services within the meaning of Art. 57 TFEU (remuneration). Furthermore, there is a cross-border element, as it concerns a Irish company that seeks to pursue betting activities in Spain. The Services Directive does not apply to betting activities and is thus not relevant. According to Alpine Investments, national measures that restrict access to the services market are contrary to art. 56 TFEU. The requirement to open up a second establishment restricts market access. Such a requirement, which has a strong impact on the free movement of services, can only be justified in exceptional circumstances, either on the basis of the Treaty or on the basis of the rule of reason (mandatory requirement). The ECJ has been rather lenient to MS wishing to restrict gambling activities, however, it is not clear why the requirement of an establishment serves a public interest.

They will have to address whether (a) a Treaty exception may be available and why (e.g. maintenance of public order), or the RoR (combating addiction to gambling); (b) whether the Spanish measure is pertinent (not an economic aim to protect the Italian gambling industry) and necessary (are there no less restrictive means available) and (c) whether there is no harmonisation measure (SD does not apply).

Question 2 (25 points)

Question 2a 13 pnt

In this case the rules on free movement of workers are not applicable, since it concerns amateur sports. Therefore the rules on EU citizenship have to be investigated. Juanes is an EU citizen and he is refused this subsidy on ground of nationality. This is contrary to article 18 and 20 TFEU, unless there is an objective justification. Whether there is an objective justification has to be put forward by the Dutch state. Since it mentions that it wants to
encourage sports, there seems to be no good reason to exclude persons on ground of nationality alone, but it is not impossible that such arguments are mentioned.

Question 2b 12 pnt

In case of Pedro, he is the son of a migrant worker. In that case article 7 of Regulation 492/2011 is applicable, that prohibits discrimination on ground of nationality. According to the court’s case law art. 7 is applicable as long as the child is at the financial chanrge of the worker. In this case no objective justification could be possible, apart from the grounds mentioned in the Treaty.

Question 3 (25 points)

Question 3a 15 points

Art. 19 TFEU/Directive 2000/78/EC
Art. 1: on the grounds of age as regards employment and occupation.
Art. 3: all persons, par. 1 sub a: conditions for access to employment.
Art. 2 par. 2 (direct discrimination): persons are treated less favorable than other persons in comparable situations on the grounds that they have exceeded the age of 30 years.
Art. 4 par. 1: difference of treatment which is based on a characteristic related to any of the grounds referred to in art. 1(age) shall not constitute discrimination where such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.

Legitimate objective: ‘to ensure the operational capacity and proper functioning of the professional fire service. The maximum age is intended to ensure that officials can perform the tasks which present particularly high physical requirements for a comparatively long period of the career.’ (see recital 18 preamble (emergency services): also professional fire service).

Is physical fitness a characteristic related to age? Yes
Is age to be regarded as a genuine and determining occupational requirement? Yes, the possession of especially high physical capacities may be regarded as a genuine and determining occupational requirement.

Is the requirement proportionate? Yes, the age at which an official is recruited determines the time during which he will be able to perform physically demanding tasks. No, not contrary to EU legislation.

Question 3b 10 points

Art. 19 TFEU/Directive 2006/54/EC
Art.1: equal opportunities and equal treatment of men and women in matters of employment and occupation, sub a: access to employment.
Art. 6: shall apply to all members of the working population, including persons seeking employment.
Art. 2: direct discrimination.
Art. 14 par. 2: occupational activities for which the sex of the worker is a determining factor.

Proportionate? Arguments put forward have to be specific and supported by evidence. Mere generalisations concerning the capacity of a specific measure are not enough. Strict interpretation by ECJ, the requirement that posts in the fire service should be manned by males regards a general exclusion that infringes EU legislation.