Introduction
This essay seeks to advise Franz, the founder of an Austrian board games company, on whether the Dutch Advertising Standards Authority’s refusal to allow the advertisement of his game ‘Risking’ on Dutch television channels breaches European Union (EU) law. The Authority’s decision is based on a fictitious Dutch national law claiming the game encourages gambling due to its use of betting cards. Employing the IRAC (Issue, Rule, Application, Conclusion) method, this analysis will explore the relevant EU legal framework, particularly the principles of free movement of goods and services, and assess whether the Dutch ban constitutes a justifiable restriction. The essay aims to provide a clear evaluation of Franz’s legal position under EU law, focusing on key Treaty provisions and case law.
Issue
The central issue is whether the Dutch ban on advertising ‘Risking’ on television, justified by concerns over gambling promotion, violates EU law, specifically the principles of free movement of goods (Article 34 TFEU) and services (Article 56 TFEU). Franz, as an Austrian entrepreneur, seeks to export his board game to The Netherlands and advertise it there, raising questions about whether the restriction imposed by Dutch authorities is compatible with EU internal market freedoms.
Rule
Under EU law, the Treaty on the Functioning of the European Union (TFEU) guarantees the free movement of goods and services across Member States. Article 34 TFEU prohibits measures that hinder, directly or indirectly, trade between Member States, unless justified under specific grounds (Article 36 TFEU), such as public morality or health. Similarly, Article 56 TFEU ensures the freedom to provide services across borders, banning restrictions unless they are non-discriminatory, justified by overriding reasons of public interest, and proportionate. The Court of Justice of the European Union (CJEU) has clarified in cases like Cassis de Dijon (1979) that even non-discriminatory measures can breach EU law if they impede market access without adequate justification (Rewe-Zentral AG, 1979). Furthermore, in gambling-related cases like Gambelli (2003), the CJEU recognised that Member States may restrict gambling activities to protect public order, provided such measures are proportionate and consistent (Gambelli, 2003).
Application
Applying these rules to Franz’s situation, the Dutch ban on advertising ‘Risking’ likely constitutes a restriction on both the free movement of goods and services. By prohibiting television advertisements, the Dutch authorities indirectly hinder the marketability of Franz’s board game, impacting its distribution and sales in The Netherlands, thus breaching Article 34 TFEU. Additionally, advertising is a service under EU law, and the ban restricts Franz’s ability to promote his product across borders, potentially violating Article 56 TFEU. Indeed, the CJEU has often held that advertising restrictions can impede market access, as seen in cases like De Agostini (1997), where limitations on television advertising were scrutinised for their effect on trade (De Agostini, 1997).
However, the Dutch authorities may argue that the ban is justified under public policy or health grounds, given the perceived link between ‘Risking’ and gambling. Typically, Member States have discretion to regulate gambling to prevent addiction or protect vulnerable groups, as affirmed in Gambelli. Yet, such measures must be proportionate, meaning they should be suitable for achieving the objective and not go beyond what is necessary. Arguably, a complete advertising ban might be deemed excessive if less restrictive alternatives, such as age restrictions or warning labels, could achieve the same aim of protecting consumers. Furthermore, there is no evidence provided that ‘Risking’ is indeed akin to gambling or poses a significant risk, which could weaken the Dutch justification.
The measure must also be non-discriminatory, applying equally to domestic and foreign products. If the Dutch law disproportionately affects foreign companies like Franz’s, it could fail this test. Generally, the CJEU requires Member States to provide concrete evidence for restrictions, and without clear data linking ‘Risking’ to gambling harms, the ban risks being incompatible with EU law.
Conclusion
In conclusion, the Dutch ban on advertising ‘Risking’ likely breaches EU law by restricting the free movement of goods and services under Articles 34 and 56 TFEU. While the Dutch authorities may justify their measure on public policy grounds related to gambling prevention, the restriction must be proportionate and supported by evidence—criteria that appear unmet in this scenario. Franz could, therefore, challenge the ban before national courts or seek guidance from the European Commission, arguing that less restrictive measures could achieve the same objective. This case highlights the broader tension between national regulatory autonomy and EU internal market freedoms, underscoring the need for balance in such disputes.
References
- De Agostini (1997) Joined Cases C-34/95, C-35/95, C-36/95, Konsumentombudsmannen (KO) v De Agostini (Svenska) Förlag AB, ECR I-3843.
- Gambelli (2003) Case C-243/01, Piergiorgio Gambelli and Others, ECR I-13031.
- Rewe-Zentral AG (1979) Case 120/78, Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein (‘Cassis de Dijon’), ECR 649.
