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Rethinking strategies for regulation of cross-border online gambling in the EU: an examination of legal and policy frameworks
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Date
2024
Authors
Leahy, Deirdre
Journal Title
Journal ISSN
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Publisher
University College Cork
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Abstract
When is an activity a ‘gambling’ activity? This question troubles law, time and again. Gambling is not a static concept, and the internet has fuelled rapid changes in the delivery of gambling services as well as enabling creation of new gambling formats. A volatile gambling environment is nothing new, and despite ingenuity as to format, framework and structure, gambling has always been an activity of change. It tends to be pursued by law, which must find the vernacular and normative means to capture and control new gambling formats.
Why should this question concern the EU? When the EU adopted its policy for online gambling in 2012, legislative competence for the gambling sector, both land-based and online, was left to the Member States. In the interim, with development of novel sui generis online gambling and near-gambling formats, new challenges are emerging for gambling law. One of these formats, the loot box, an in-game purchasing structure built on randomised game architecture, blurs traditional boundaries between gambling and games and is proving difficult to regulate. Some Member States have attempted to capture it within existing legal definitions of gambling, and the EU has been called on to act, but there is still a lack of clarity about the role of gambling law in the context of an EU intervention. This triggers many questions: How does gambling law define ‘gambling’? What is gambling law and what are its objectives? What is the ‘fit’ of gambling law with EU law? What are the rationales for conferral of legislative competence for online gambling as between the EU and its Member States? Is there some quality to gambling law that makes it exceptional in this context? What are the legal obstacles to harmonisation? What is the role of the principle of subsidiarity in this debate?
These questions are the subject of this thesis, which takes the loot box phenomenon to examine interrelationships between gambling law and EU law. It explores the discipline of gambling law to investigate whether gambling/gaming convergence creates an environment where a conceptualised approach to the principle of subsidiarity in EU law and policy for online gambling can be developed. It undertakes this task by means of a dual enquiry: first it investigates gambling law to unpack its conceptual foundations and normative context, and then it considers these findings against EU legislative competence for the internal market. The objectives of gambling control are weighed against the goals and objectives of the internal market to explore gaps between EU market aims and the public interest rationales that motivate gambling law. This enquiry demonstrates an unmet need to unravel the normative complexity of gambling law as a precursor to EU policy formation affecting the sector. Lessons learned from EU law and policy for tobacco control are explored to understand how the EU can frame its meta-regulatory functions in issues that impact on personal choice, and the nature of the EU’s sectoral regulatory role.
Recognising the function of the principle of subsidiarity, this thesis argues that the discipline of gambling law creates a rebuttable presumption in favour of Member State legislative competence for the sector and pleads for normative sensitivity in the debate on gambling/gaming convergence. It concludes that the solution for EU digital policy with impacts on Member State legislative competence for online gambling is to take a structured approach, acknowledging that the challenge is one of diagonal competences. This should accept that the path towards a solution must first respect the polycentric objectives of gambling law, from which the primacy of Member State legislative competence can also be inferred.
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Keywords
Gambling law , Online gambling , EU law , Gambling/gaming convergence , Loot boxes , Harmonisation , Principle of subsidiarity
Citation
Leahy, D. 2024. Rethinking strategies for regulation of cross-border online gambling in the EU: an examination of legal and policy frameworks. PhD Thesis, University College Cork.