Despite the enactment of the Bill regulating the Greek gaming market last August, in late November the Greek gaming market was still going through a period of uncertainty. Stakeholders faced with thoughtfulness the Greek Government’s undeniable economic motive to generate an important income for the State Fund. Meanwhile they worried about whether and how Law 4002/2011 will effectively enter into force and whether the transitional period provided by paragraph 12 of article 50 will dominate over the rest of the dispositions. In that case the Greek Government’s efforts to effectively regulate the gaming market would significantly weaken.
The discussion hitherto focused namely on whether the “hurdle” of a transitional provision would be overridden, which however in the light of the economic crisis seemed to be the swiftest solution for compliance with the EU and ECJ requirements as well as for immediate opt-in of online gaming providers to the tax regime of the said Law, which instantly means revenue generation for the State.
Following an application filed by the agents of the National Betting Company (OPAP) requesting the immediate cessation of any advertising of online gaming and betting companies the First Instance Court of Athens by delivering judgment number 10587/2011 held that the publication of relevant advertisements on newspapers and websites by foreign companies is legal, based on paragraph 12 of Article 50 of the Law. This provision explicitly states that online betting companies duly licensed and established in EU – member states and in the EEA (Iceland, Liechtenstein and Norway) may continue to provide services during the transitional period, namely from the publication of the Act until the granting of licenses in Greece. The above decision adds that in any case the right of conduct of online betting and gaming activities exclusively belongs to the Greek Public. It concludes by dismissing the conclusions of the OPAP agents as unfounded, claiming that no such right is granted to OPAP SA , holding that OPAP has never had the exclusive right to conduct online gaming and betting activities.
Despite the provision for determination of the advertising rules via the Regulation for the Conduct and Control of Games and the explicit ban of any commercial communication for gaming according to Article 35 par. 4 of the Law, exception made to games duly licensed by the Greek Republic, the Court rejected the request of temporary prohibition of advertising of the EU or EEA duly licensed online betting providers.
The said law, however, although explicit on this point, it remains silent on when this prohibition shall be abolished while its unjustifiably vague wording undisputedly contradicts the primary law. Law 4002/2011 does not set any deadline for the adoption of the Regulation for the Conduct and Control of Games by the Gaming Supervision and Control Commission (GSCC), which will set in detail the conditions on advertising. The decision of the First Instance Court of Athens came to partially fill this gap by not ordering a ban on advertising as reasonably the continuation of the online gaming and betting companies’ operation may not be on the one hand permitted without on the other having the right of commercial communication of the services. Moreover and until fifteen days ago the question whether the GSCC will finally operate was more than hot. The decisions of the Ministry of Finance, the first dated December 13th, 2011 calling online betting providers to voluntarily opt-in to the abovementioned Law’s tax regime and the second dated December 20th, 2011 setting up the GSCC, have temporarily put an end to this uncertainty.
At this stage and in support of the First Instance Court decision we are expecting the adoption of the Regulation for the Conduct and Control of Games by the newly established GSCC as well as the start of the licensing procedure, hoping that this will not be delayed due to the enforcement of the transitional provision of the Law. Moreover, the licensing procedure will add an extra income to the State Fund, i.e. the corresponding fee to the 5-year-term license as well as the inclusion to the tax regime of providers not active yet in Europe.
Edited by Crystallia Iatridou