Introduction
This essay seeks to advise Franz, the founder of an Austrian board games company, regarding the refusal by the Dutch Advertising Standards Authority to permit the advertisement of his game ‘Risking’ on Dutch television channels. The Authority’s decision is based on a fictitious Dutch national law prohibiting the advertisement of games that may encourage gambling. Using the IRAC (Issue, Rule, Application, Conclusion) framework, this essay will examine whether this ban breaches European Union (EU) law, focusing on the principles of free movement of goods and services. It will outline the relevant legal provisions, apply them to Franz’s situation, and critically evaluate potential arguments to assess the legitimacy of the restriction.
Issue
The central issue is whether the Dutch ban on advertising ‘Risking’ on television, due to its perceived encouragement of gambling, violates EU law. Specifically, it raises questions about whether this restriction infringes on the free movement of goods under Articles 34 and 36 of the Treaty on the Functioning of the European Union (TFEU) or the free movement of services under Articles 56 and 57 TFEU.
Rule
Under EU law, the free movement of goods prohibits member states from imposing quantitative restrictions or measures having equivalent effect on imports, as outlined in Article 34 TFEU. However, Article 36 TFEU allows exceptions on grounds such as public morality, public policy, or the protection of health, provided the restrictions are proportionate and non-discriminatory. Similarly, Articles 56 and 57 TFEU guarantee the freedom to provide services across member states, with exceptions for public policy, security, or health under Article 62 TFEU. Case law, such as *Cassis de Dijon* (Case 120/78), establishes that national measures restricting trade must be justified and proportionate to achieve a legitimate aim (Rewe-Zentral AG, 1979). Additionally, in *Gebhard* (Case C-55/94), the European Court of Justice (ECJ) clarified that restrictions on services must be non-discriminatory, justified by imperative reasons, and necessary (Gebhard, 1995).
Application
Applying these rules to Franz’s case, the Dutch ban on advertising ‘Risking’ could be seen as a measure equivalent to a quantitative restriction under Article 34 TFEU, as it limits the game’s market access in The Netherlands by preventing effective promotion. Advertising is a critical component of market penetration, and its prohibition arguably hinders the free movement of goods. Similarly, under Article 56 TFEU, the ban may restrict Franz’s ability to provide services related to the marketing of ‘Risking’ in another member state.
However, the Dutch Authority might argue that the restriction is justified under Article 36 TFEU or Article 62 TFEU on the grounds of public policy or health, claiming that ‘Risking’ promotes gambling-like behaviour, which could harm vulnerable individuals. Indeed, protecting citizens from gambling addiction is a recognised legitimate aim, as seen in cases like Schindler (Case C-275/92), where the ECJ upheld restrictions on lotteries for public policy reasons (Schindler, 1994). Nevertheless, the measure must be proportionate, meaning it should be suitable and necessary to achieve the intended objective. If Franz can demonstrate that ‘Risking’ does not directly incite gambling or that alternative, less restrictive measures (e.g., age ratings or warnings) could achieve the same goal, the ban may be deemed disproportionate.
Furthermore, the restriction must not be discriminatory. If the Dutch law applies equally to domestic and imported games, it might pass the non-discrimination test. However, if it disproportionately impacts foreign companies like Franz’s, it could breach EU law. Without specific evidence on the game’s content or the law’s application, a definitive assessment remains challenging, but the principle of proportionality appears central to this dispute.
Conclusion
In conclusion, the Dutch ban on advertising ‘Risking’ may contravene EU law by restricting the free movement of goods and services under Articles 34 and 56 TFEU, respectively. While exceptions for public policy or health could justify the measure, they must be proportionate and non-discriminatory, a threshold that may not be fully met if less restrictive alternatives exist. Franz could challenge the ban by arguing its disproportionate nature and seeking a review of whether the game truly encourages gambling. This case underscores the tension between national regulatory autonomy and EU market integration, highlighting the need for careful legal scrutiny in cross-border trade disputes. Ultimately, Franz should consider seeking legal advice to pursue a formal challenge through Dutch courts or the ECJ to clarify the ban’s compatibility with EU law.
References
- Gebhard v Consiglio dell’Ordine degli Avvocati e Procuratori di Milano (1995) Case C-55/94, European Court Reports 1995 I-04165.
- Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein (1979) Case 120/78, European Court Reports 1979 00649.
- Schindler (1994) Case C-275/92, European Court Reports 1994 I-01039.
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