Raad van State: online ban compatible with art. 56 TFEU, fines cut to EUR 150,000 each: Allegations, Court Orders and Status

What this case is about

Twee Maltese aanbieders tegen Kansspelautoriteit is an appeal decided by the Raad van State, Afdeling bestuursrechtspraak, on February 17, 2021 under docket 202001871/1/A3 (ECLI:NL:RVS:2021:315). Two related Malta-based online gambling operators, whose names are anonymised in the judgment, challenged fines imposed by the Dutch gambling regulator, the Kansspelautoriteit (KSA).

The fines were EUR 210,000 and EUR 200,000, set on June 6, 2018. The operators argued that the Dutch refusal to license online casino games breached article 56 of the Treaty on the Functioning of the European Union (TFEU). The case is one of the regulators and attorneys general in court on the site.

Who is covered

The ruling directly concerns the two operators and the regulator. Its reasoning on the Dutch ban on online casino games, which applied in full before 2021, matters to any operator that offered games to Dutch players without a license.

No class or player group is involved.

Is there a payout?

No payout exists for players in this case. The money that changed hands is a penalty between the regulator and two companies, and the record shows no consumer claim process, fund or settlement.

What the court decided

The Raad van State annulled the earlier judgment of the Rechtbank Den Haag of January 30, 2020 (case 19/1167). It then decided the main points itself.

The court held that the Dutch refusal to license online casino games was proportionate and coherent under EU law, and so compatible with article 56 TFEU. It also held that the two group companies could be fined separately.

The court found, however, that the KSA had not adequately reasoned its increases of the fines. It set both fines at EUR 150,000 each, down from EUR 210,000 and EUR 200,000.

The judgment of February 17, 2021 is the controlling order in the record. Other Dutch regulator cases are collected under gambling lawsuits in the Netherlands.

Why it matters

The decision is a precedent on two points. First, a Member State's total ban on online casino games, in force in the Netherlands before 2021, passed the proportionality and coherence test under EU law. Second, a regulator must give reasons for raising a fine, and related companies can each be fined.

The KSA's other court cases are listed under Kansspelautoriteit lawsuits.

Questions people ask

Did the Raad van State uphold the Dutch ban on online casino games?

Yes, in the sense that matters for EU law. On February 17, 2021 the court held the refusal to license online casino games proportionate and coherent, so compatible with article 56 TFEU.

How much were the fines in the end?

Both operators were fined EUR 150,000 each. The KSA had imposed EUR 210,000 and EUR 200,000 on June 6, 2018, and the Raad van State cut them because the increases were inadequately reasoned.

Could the regulator fine two related companies separately?

Yes. The court held that the two group companies could be fined separately, while reducing both fines to EUR 150,000.