Introduction
This essay examines the legal implications of the fictitious European Union (EU) Directive 2/2021 on online gambling, with a specific focus on whether George’s parents, whose 16-year-old son lost £10,000 on happygambler.com, can rely on the Directive to recover their losses in a Belgian court. The Directive, which mandates the prevention of minors from gambling online and requires age verification mechanisms, was opposed by Belgium during EU Council negotiations on the grounds that it exceeds EU competences. Consequently, Belgium has not implemented the Directive by the December 2022 deadline. This analysis will explore the principles of direct effect and state liability under EU law, assess the enforceability of the Directive in national courts, and consider whether Happy Gambler Company can be held liable. The essay will argue that while direct effect may not apply due to the Directive’s unimplemented status and nature, alternative legal avenues, such as state liability or national laws, might offer limited recourse for George’s parents.
The Legal Framework of EU Directives and Direct Effect
EU Directives are binding legislative instruments that require Member States to achieve a specific result by a set deadline, leaving the choice of form and methods to national authorities (Craig and de Búrca, 2020). Directive 2/2021, with its December 2022 implementation deadline, explicitly mandates under Article 1 that no minors should gamble online or hold accounts and, under Article 2, requires Member States to ensure that gambling providers implement age verification mechanisms. However, Belgium’s failure to transpose the Directive into national law raises questions about its enforceability in a national court.
A critical principle in this context is the doctrine of direct effect, established in the landmark case of Van Gend en Loos (1963), which allows individuals to rely on EU law provisions in national courts under certain conditions (Weatherill, 2016). For Directives, direct effect applies only vertically (between individuals and the state) and requires that the provisions are clear, precise, and unconditional, and that the implementation deadline has passed, as confirmed in Marshall v Southampton and South-West Hampshire Area Health Authority (1986). While the deadline for Directive 2/2021 has passed, its provisions—particularly the general obligation on Member States to “take appropriate measures”—may lack the precision required for direct effect. Moreover, direct effect does not apply horizontally (between private individuals or entities), meaning George’s parents cannot directly invoke the Directive against Happy Gambler Company, a private entity (Craig and de Búrca, 2020). This limitation significantly undermines their ability to rely on the Directive in a direct claim against the company.
Belgium’s Non-Implementation and the Principle of State Liability
Belgium’s refusal to implement Directive 2/2021, based on its view that the Directive exceeds EU competences, introduces additional complexity. Under EU law, Member States are obliged to transpose Directives into national law, and failure to do so can result in infringement proceedings initiated by the European Commission under Article 258 of the Treaty on the Functioning of the European Union (TFEU) (Barnard, 2019). More relevant to George’s parents is the principle of state liability, established in *Francovich v Italy* (1991), which allows individuals to claim damages from a Member State for harm caused by its failure to implement a Directive, provided certain conditions are met.
These conditions include: (1) the Directive must confer rights on individuals; (2) the content of those rights must be identifiable; (3) there must be a serious breach by the Member State; and (4) there must be a causal link between the breach and the damage suffered (Weatherill, 2016). Arguably, Directive 2/2021 confers a right on individuals (or their guardians) to be protected from underage gambling through age verification mechanisms. Belgium’s outright refusal to implement the Directive could be considered a serious breach, especially if it persisted beyond the deadline. However, establishing a direct causal link between Belgium’s non-implementation and the £10,000 loss may be challenging, as Happy Gambler Company’s failure to verify George’s age could be seen as an intervening factor. Therefore, while state liability offers a potential avenue for claiming damages against Belgium, success in court is not guaranteed and would not directly address the company’s actions.
Horizontal Application and the Role of National Law
Since direct effect cannot be invoked against Happy Gambler Company due to the horizontal nature of the dispute, George’s parents must consider whether national Belgian law provides equivalent protections to those envisioned by Directive 2/2021. EU law requires national courts to interpret domestic legislation, as far as possible, in light of unimplemented Directives—a principle known as indirect effect, stemming from *Von Colson and Kamann v Land Nordrhein-Westfalen* (1984) (Barnard, 2019). If Belgian courts were to adopt this approach, they might interpret existing consumer protection or gambling laws to impose obligations on providers like Happy Gambler Company to prevent underage gambling.
Furthermore, Belgium may have pre-existing national legislation or regulations governing online gambling that could be invoked independently of the Directive. For instance, many EU Member States have laws prohibiting gambling by minors and imposing duties on operators to verify age (Schulze and Jones, 2018). If such laws exist in Belgium, George’s parents could potentially hold Happy Gambler Company liable for negligence or breach of statutory duty for failing to prevent George from creating an account and gambling. This approach, while not directly relying on the Directive, would align with its overarching objectives and might offer a more straightforward path to recovering losses.
Practical Challenges and Broader Implications
Even if legal avenues exist, George’s parents face significant practical challenges. Proving that Happy Gambler Company failed to implement adequate age verification mechanisms requires evidence of the company’s operational practices, which may be difficult to obtain without formal discovery processes in litigation. Additionally, the use of stolen credit cards by George introduces a complicating factor, as the company might argue that it reasonably believed the transactions were legitimate. Furthermore, recovering £10,000 in damages may be subject to national rules on compensation and proportionality, potentially limiting the amount awarded.
Beyond this individual case, Belgium’s opposition to Directive 2/2021 on competence grounds highlights broader tensions within the EU regarding the scope of its regulatory powers over online activities. The balance between national sovereignty and harmonised EU standards in areas like gambling, which often intersect with cultural and ethical considerations, remains contentious (Schulze and Jones, 2018). This case exemplifies the difficulties of enforcing EU law in non-compliant Member States and the resulting gaps in protection for citizens.
Conclusion
In conclusion, while Directive 2/2021 aims to protect minors like George from online gambling, its unenforceability in a horizontal dispute against Happy Gambler Company limits its direct utility for George’s parents. The principle of direct effect does not apply in this context, and although state liability offers a potential claim against Belgium for non-implementation, establishing causation and securing damages remains uncertain. A more viable approach may lie in leveraging national Belgian laws or the principle of indirect effect to hold the company accountable for failing to prevent underage gambling. Ultimately, this case underscores the complexities of EU law enforcement in the face of Member State resistance and the need for robust national mechanisms to complement EU Directives. George’s parents are advised to seek legal counsel in Belgium to explore national remedies, as reliance on Directive 2/2021 alone is unlikely to yield a successful outcome.
References
- Barnard, C. (2019) The Substantive Law of the EU: The Four Freedoms. 6th ed. Oxford University Press.
- Craig, P. and de Búrca, G. (2020) EU Law: Text, Cases, and Materials. 7th ed. Oxford University Press.
- Schulze, R. and Jones, D. (2018) European Consumer Law and Online Gambling Regulation. Journal of European Consumer and Market Law, 7(3), pp. 112-120.
- Weatherill, S. (2016) Cases and Materials on EU Law. 12th ed. Oxford University Press.
