Introduction
This essay seeks to advise Franz, the founder of an Austrian board games company, on whether the refusal by the Dutch Advertising Standards Authority to allow television advertising of his game ‘Risking’ constitutes a breach of European Union (EU) law. The Dutch Authority claims that ‘Risking,’ which incorporates betting cards, encourages gambling and thus violates national laws prohibiting such advertisements on television. Employing the IRAC (Issue, Rule, Application, Conclusion) framework, this analysis will assess the situation in light of EU law, specifically focusing on the principles of free movement of goods and services. The essay will explore relevant legal provisions, case law, and their applicability to Franz’s case, ultimately providing a reasoned conclusion on the potential breach of EU law.
Issue
The primary issue is whether the ban imposed by the Dutch Advertising Standards Authority on advertising ‘Risking’ on television, due to its perceived encouragement of gambling, violates EU law. Specifically, does this national restriction infringe upon the free movement of goods or services as enshrined in the Treaty on the Functioning of the European Union (TFEU)?
Rule
Under EU law, the free movement of goods is protected by Articles 34 and 35 TFEU, which prohibit quantitative restrictions on imports and exports, as well as measures having equivalent effect, between Member States (European Union, 2012). Similarly, the free movement of services is safeguarded under Article 56 TFEU, ensuring that service providers can operate across borders without unjustified restrictions. However, Member States may impose restrictions on these freedoms under certain conditions, such as public policy, public health, or consumer protection, as outlined in Article 36 TFEU for goods and through established case law for services. The European Court of Justice (ECJ) has clarified in cases like *Cassis de Dijon* (Case 120/78) that any national measure must be proportionate and necessary to achieve a legitimate aim (Weatherill, 2016). Furthermore, in the context of gambling-related restrictions, the ECJ ruling in *Gambelli* (Case C-243/01) established that while Member States can regulate gambling to protect public order, such measures must not be discriminatory or disproportionate (Craig and de Búrca, 2020).
Application
Applying these rules to Franz’s case, the Dutch ban on advertising ‘Risking’ could be viewed as a restriction on both the free movement of goods (the board game itself) and services (the associated advertising). The game, produced in Austria, is being exported to the Netherlands, and the advertising ban hinders market access, arguably constituting a measure equivalent to a quantitative restriction under Article 34 TFEU. Moreover, the inability to advertise on Dutch television impacts Franz’s ability to provide cross-border marketing services, potentially breaching Article 56 TFEU.
However, the Dutch Authority justifies the ban on the grounds of preventing gambling-related harm, which aligns with public policy and consumer protection objectives—legitimate aims under EU law. The critical question, therefore, is whether the ban is proportionate. Indeed, in Gambelli, the ECJ emphasised that restrictions on gambling must be consistent and systematic in pursuing their stated objectives. If the Netherlands permits other forms of gambling or gambling-related advertisements while singling out ‘Risking,’ this could suggest discriminatory application, rendering the measure incompatible with EU law. Furthermore, a total ban on television advertising might be deemed disproportionate if less restrictive alternatives, such as time-slot limitations or content warnings, could achieve the same protective goals.
It is also worth considering whether ‘Risking’ truly constitutes a gambling activity. If the betting cards are a minor or non-central element of gameplay, the classification as a gambling-related product might be questionable. Without specific details on the game’s mechanics (which are not provided here), this aspect remains speculative but could be a point of contention in a formal challenge.
Conclusion
In conclusion, while the Dutch ban on advertising ‘Risking’ may pursue a legitimate aim of protecting consumers from gambling-related harm, it potentially breaches EU law if it disproportionately restricts the free movement of goods and services under Articles 34 and 56 TFEU. Franz could argue that the measure lacks proportionality or consistency, especially if similar products are treated differently in the Netherlands. To strengthen his position, Franz should gather evidence on the game’s nature and compare Dutch policies on analogous products. Ultimately, a challenge before the ECJ could clarify whether the ban unjustifiably hinders intra-EU trade, though success is not guaranteed given the discretion afforded to Member States in sensitive areas like gambling regulation.
References
- Craig, P. and de Búrca, G. (2020) EU Law: Text, Cases, and Materials. 7th ed. Oxford University Press.
- European Union (2012) Consolidated Version of the Treaty on the Functioning of the European Union. Official Journal of the European Union.
- Weatherill, S. (2016) Cases and Materials on EU Law. 12th ed. Oxford University Press.
