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ONLINE GAMBLING AND THE FURTHER DISPLACEMENT OF STATE REGULATION: A NOTE ON PMU V ZETURF

Published online by Cambridge University Press:  09 May 2008

Justin Borg Barthet
Justin Borg Barthet
Affiliation:
Doctoral Candidate and Teaching Assistant, School of Law, University of Aberdeen.
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Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 57 , Issue 2 , April 2008, pp. 417 - 426
Copyright
Copyright © 2008 British Institute of International and Comparative Law

In a judgment of 10 July 2007 in the matter GIE Pari Mutuel Urbain (PMU) v Zeturf Ltd Footnote 1 the Cour de Cassation in Paris gave online gambling companies a virtual carte blanche to exploit regulatory competition for lottery licences in the internal market. In that judgment France's highest commercial court sent the case back to the Court of Appeal to reconsider the matter in the context of its compatibility with EC Treaty law. As the ECJ affirmed in Schindler,Footnote 2 lotteries fall within the meaning of services for the purposes of the freedom to provide services in the EC Treaty. However, in view of the social implications of gambling, those services are subject to a special regime that allows Member States to derogate from the Treaty in order to protect public order and the interests of consumers.Footnote 3 This regulatory latitude has rendered the law as it stands today particularly unclear. The litigation in Zeturf embodies the difficulties that arise from this lack of clarity. The Cour de Cassation's judgment follows prolonged litigation in which the highest French and Maltese courts were asked to consider the limits to the freedom to provide services under the EC Treaty; jurisdiction and recognition and enforcement of judgments under the Brussels I Regulation;Footnote 4 and the interface between the public policies of two Member States. In the most recent episode in this matter, the Cour de Cassation recalled that courts are obliged to analyse the compatibility of restrictive French gaming laws with the EC Treaty in accordance with the guidelines established in the ECJ's jurisprudence. This was a long-overdue acknowledgement that Member States no longer enjoy exclusive power to govern socio-economic affairs in their respective territories; a reminder that shared sovereignty in the EC might not mean that prescriptive jurisdiction is pooled supra-nationally but that, whereas it was previously centred in one territory, it is now divided somewhat haphazardly amongst the Member States themselves. Indeed, the judgments of the lower courts of France and the efforts to enforce those judgments in Malta highlight doubts over the proper locus of prescriptive power in European socio-economic governance. The absence of a clear regulatory framework and the attendant lack of legal certainty have multiplied grounds for litigation, giving rise to unnecessary costs and the misallocation of public and private resources.

The judgments in Zeturf are best considered in the context of the accession of Malta to the EU. Malta is obviously keen to exploit the opportunities that membership of the Community provides by attracting high value-added commerce to a relatively low-cost, service-based economy. Malta's Lotteries and Gaming Authority (LGA) markets itself as ‘Europe's Gateway for Remote Gaming’,Footnote 5 and the licensing of European online gambling companies by the authority has boomed in recent years to such an extent that demand for the LGA's services outstrips its capacity to deal with it at the time of writing.Footnote 6 While the licensing of ‘remote gaming’ is booming, Maltese residents are not permitted to indulge in gambling to the same extent as foreign residents.Footnote 7 The LGA is therefore busy licensing companies that will supply consumers outside Maltese territory in an essentially offshore tradition—the fiscal and regulatory environment is intended to attract companies that are capitalized abroad to pay licensing fees in Malta in preference to the States from which they hail. Other European authorities have not taken kindly to what they view as rogue companies exploiting pretended rights under Community law. They have employed a variety of means to combat the encroachment of foreign-licensed online gaming. By way of example, Italian law adopted a somewhat heavy-handed approach and imposed criminal penalties on persons who received bets but were not in possession of an Italian licence.Footnote 8 France has been more subtle. The French monopoly has attempted to obtain judgments under her own sympathetic laws in her own sympathetic courts that she hoped would be recognisable and enforceable in Malta. To date they have not succeeded in their attempts to find an enforceable remedy. As elucidated below, the regulatory framework remains convoluted. The analysis hereunder seeks to illustrate how the current state of affairs engenders doubt and serves no social or economic purpose appropriately.

I. THE FACTS AND THE EARLY FRENCH JUDGMENTS

The facts in Zeturf are the following. GIE Pari Mutuel Urbain (PMU) is a French economic interest grouping composed of companies that own hippodromes. By virtue of a law of 1891, as subsequently amended, PMU enjoys the exclusive legal right to receive bets, outside the racing arena, on horse races that are held in France. Zeturf, a subsidiary of the French company Eturf, was established as a Maltese company in January 2005 and was granted a remote gaming licence by the Maltese Lotteries and Gaming Authority. Without the need of establishing a physical presence in France or of obtaining any authorization from French authorities, the company was licensed by a Member State to receive wagers on horse races held in France. On the face of it, Maltese law empowered Zeturf to bypass the French monopoly law without the risks inherent in doing so patently within the immediate reach of France's prescriptive jurisdiction. The company's intention to bypass French laws and do virtual business in France is not contested. Indeed the Tribunal de Grande Instance noted that Zeturf's website was at the time entirely composed in the French language.Footnote 9 Moreover, the conditions of Zeturf's licence preclude it from offering its services to Maltese residents. A sceptic might argue that the prohibition of serving Maltese residents is a cynical yet effective legal means to protect Maltese public policy while the Maltese regulatory regime is otherwise composed in a manner that undermines the policies of other Member States. Zeturf's licence certainly does exploit the internal market—the company's connection with Malta is tenuous at best but its incorporation in Malta and its license confer rights throughout the European Community. In view of the foregoing, there is not a shadow of a doubt that Zeturf was established with the intention of serving French consumers and thereby circumventing France's protective laws. The company took full advantage of the opportunity provided by Maltese law and its market share grew to such an extent that it claims to have attracted over 300,000 users to its website in the six years since it was launched.Footnote 10 One can safely assume that the majority of those users are French residents and that virtually none reside in Malta.

The dispute between PMU and Zeturf has been litigated in two fora. PMU initiated proceedings against Zeturf in the French courts. It was alleged that Zeturf was operating in breach of the monopolistic law and that it should be ordered to cease and desist from doing so.Footnote 11 Zeturf did not appear or enter any submissions in the Tribunal de Grande Instance. However, on appeal in Paris, Zeturf argued, inter alia, that the laws cited by PMU breached its freedom of establishment and freedom to provide services as per Articles 43 and 49 of the EC Treaty.Footnote 12 The French Court of Appeal was not swayed by these pleas and upheld the lower court's order that the Maltese company cease from conducting its business and to pay a daily penalty in default. The penalty was increased from €15,000 to €50,000 on appeal. PMU sought enforcement of the judgment of the Tribunal de Grande Instance in Malta and this was granted by a decree of the civil court.Footnote 13 Zeturf appealed both the judgment of the French court and the Maltese decree of enforceability.

In addition, PMU successfully brought separate suit against Bell Med and Computer Aided Technologies (hereafter collectively referred to as Bell Med), Maltese companies that provide the computing services through which Zeturf operates its own business. Bell Med was ordered to cease and desist from allowing Zeturf to provide these services, also on pain of daily penalties.Footnote 14

Up to the appeals stage in the French proceedings, PMU had sought and obtained judgments that ordered the unfettered enforcement of French public policy within France's territorial space. Yet satisfaction could not be attained through those judgments since Zeturf is a Maltese company licensed to conduct remote gaming activity under Maltese law. Recognition and enforcement of the judgments in Malta was therefore a sine qua non for their efficacy. The public policy of France was on a potential collision course with the laws of the licensing Member State.

II. THE RECOGNITION APPEALS IN MALTA

The subsequent recognition and enforcement proceedings in the Maltese courts have not been so straightforward for PMU. The Maltese courts initially decreed that the judgment of the Tribunal de Grande InstanceFootnote 15 against Zeturf should be recognised and enforced in Malta. Zeturf appealed that decision stating that it felt aggrieved on four grounds. Under the first heading it contended that the judgment did not fall within the scope rationae materiae of the Brussels I Regulation.Footnote 16 In the event the matter was resolved on the first ground of appeal and it was only this ground that was considered by the Maltese Court.

The Maltese Court of Appeal explored the sometimes controversial territory of the meaning of ‘civil and commercial matters’ in Article 1 of the Brussels Regulation. It was noted in this respect that PMU is a non-profit organization that is controlled by the State and as such has the character of a public authority. Yet it is established in the case law of the European Court of Justice that the mere fact that one of the parties is a public authority does not suffice to render the matter outwith the meaning of ‘civil and commercial matters’ and thereby exclude the applicability of the Regulation.Footnote 17 The jurisprudence of the Luxembourg court instructs national courts to ask whether the relevant action is founded in private law or public law.Footnote 18 In other words, was the authority acting iure imperii or iure gestionis? If the action is based in private law the Regulation applies whether the parties are public authorities or private persons. Here lies the problem when a litigant seeks to enforce a judgment based on the public policy of one Member State in another Member State which enacts laws designed specifically to bypass the said public policy. The judgment of the French Court of AppealFootnote 19 is quite damning of PMU's cause. The French court reasoned that the PMU acted to protect its monopoly in the interest of French ordre public. The Maltese Court of Appeal therefore concluded that, notwithstanding that the subject-matter of the French judgment is ‘formally or apparently of a civil or commercial nature, [it] does in reality fall within the realm of public law and is therefore excluded from the sphere of applicability of Regulation 44/2001’. Accordingly it was concluded that the subject-matter could not be deemed to be a civil or commercial matter within the independent meaning of that term in the Regulation. On that basis it was held that the judgment of the French court could not be enforced in Malta. Effectively this meant that a Maltese licensed company could continue to freely provide online gambling services that are otherwise restricted in France, regardless of the fact that the courts in France had taken the view that this contravened French public policy. One will recall that, perhaps ironically, Maltese residents remain barred from using Zeturf's website as per the conditions of the company's constitution and license.

III. A REFERENCE DENIED

In the proceedings concerning Bell Med's appeal against enforcement of the French judgment, PMU requested that Malta's Court of Appeal refer a matter of interpretation of the Brussels Regulation to the European Court of Justice.Footnote 20 PMU noted that Bell Med had raised the Regulation's jurisdictional rules in its defence before the French court and that this defence had not been sustained. In fact, the French court founded its jurisdiction on Article 5(3) of the Regulation. PMU argued that the requested court could not then hold that the judgment did not fall within the material scope of the Regulation, as this would effectively constitute a review of the French judgment. In PMU's view, the Maltese courts would thereby breach their obligations under the Regulation. PMU proposed that the Maltese court should refer the following question to the ECJ: could the Maltese court examine whether or not the Regulation was applicable ‘in circumstances where the court of origin would, in its said judgment, have already itself declared Regulation EC 44/2001 to be applicable to the matter in dispute and, furthermore, both parties would have invoked the Regulation in their respective submissions before the said court of origin?’Footnote 21

The Maltese Court of Appeal drew a distinction between (i) a review of whether or not the court of origin assumed jurisdiction properly and (ii) a review of whether or not the enforcement proceedings fall within the material scope of the Regulation for the purposes of recognition and enforcement. It acknowledged without difficulty that a review of the court of origin's jurisdiction would be ultra vires. The matter of the material scope of the Regulation, however, required further examination. The Court sought academic authority in the writings of Briggs and Rees.Footnote 22 Quoting therefrom, the court further distinguished between (a) a case where the court of origin had only considered defences to its jurisdiction under the Regulation and (b) those cases where it had substantially reviewed the material applicability of the Regulation. In the first hypothesis the Court had no difficulty dismissing the plea since it held that the distinction between jurisdiction and recognition and enforcement has long been established. Yet the second hypothesis required closer analysis:

But suppose that the adjudicating court has expressly held that the claim was within Article 1 of the Regulation and not excluded by Article 1(2). In these circumstances, is it still open to the recognising court to re-examine this question for itself? The arguments are finely balanced … if this issue has been fully argued before and decided in the adjudicating court, the general scheme of the Judgments Regulation would not favour allowing it to be re-argued all over again, at least without some regard to what was reasoned and decided in the first court.Footnote 23

The Court analysed the judgments of the French Courts and noted that at no stage in the proceedings did the courts decree that Article 1 of the Regulation applied to the facts of the case. Nor was the question of whether the claim advanced by PMU was civil or commercial raised at any stage of the proceedings. The court therefore concluded that, notwithstanding the fact that questions of jurisdiction under the Regulation had been raised, the material applicability had at no stage been discussed and the Maltese court was free to decide that matter in its own right. Furthermore, the court was of the view that the law was sufficiently clear and, on that basis, there was no need to refer the matter to the ECJ. Accordingly, the avenue of a preliminary reference as a source of clarity was shut off—not because the court was unwilling to ask the question but because the state of European law is such that the law is clear regarding the potential questions to be asked in this matter but not so in the bigger regulatory picture.

IV. THE PRESENT STATE OF COMMUNITY LAW: THE JUDGMENT OF THE COUR DE CASSATION

Although the judgment of the French Court of Appeal had been declared unenforceable in Malta, Zeturf felt the need to pursue an appeal of that judgment before France's highest commercial court.Footnote 24 It pleaded that the French law that it had breached was incompatible with Community law since it constituted an unjustified restriction on the freedom to provide services. In accordance with the principle established in Läärä,Footnote 25 the Cour de Cassation held that national legislation that grants a monopoly to a public body and thereby restricts the freedom to provide services may be justified, albeit only on limited grounds. Possible justifications include the prevention of criminal or fraudulent activity and the limitation of opportunities for the public to engage in gambling. In the latter case the court noted that limitations must truly be systematic and coherent. The court noted in particular that the holding of the ECJ in Zenatti Footnote 26 specifically excludes the misuse of these controls for the purpose of increasing State revenue from gambling. Further, the restriction could not be justified purely on the grounds that revenue from the gambling activity is dedicated to a social purpose or to the public interest—any such benefit may only be an accessory consequence of the restriction. In addition, any such restriction must be in the public interest and must be applied to all persons who provide a service in the territory; ie it must be applied indiscriminately. Finally, and most onerously, it must be shown that the purpose that the restriction seeks to achieve is not already achieved by virtue of the laws of the Member State of origin, that is, the Member State from which the provider of the service hails.Footnote 27

The Court of Appeal in Paris had not engaged in any such study and was ordered to re-examine the matter in accordance with the instructions of the Cour de Cassation. The court will therefore have to conduct a dual test. It must first examine the extent to which the French law is justified and proportionate to the purpose of the restriction on the freedom to provide services. Secondly, the court will have to ensure that Maltese law does not contain the safeguards that the French law seeks to attain. Needless to say, this exercise will require proof of Maltese law with all the costs that are associated with obtaining that evidence. In any event, however, if the Court of Appeal finds that the original judgments were justified on the grounds prescribed by the Cour de Cassation, there remains the question of recognition and enforcement in Malta. Absenting any economic coercion, it is unlikely that the Maltese licensing authority or the Maltese courts will accommodate French legal requirements. They are under no obvious obligation to do so and accommodating foreign law is certainly not consonant with Malta's stated ambition to be a gateway to the European market.Footnote 28 Under these circumstances, a French judgment will lack teeth, no matter how well reasoned and justified it may be in terms of Community law and French social policy. The laws and policies of Malta will continue to encroach on French society in the absence of far-reaching substantive positive limitations required on a European level.

V. IRREDUCIBLE CONFLICTS OF OBLIGATIONS

The current state of the regulatory framework is perhaps most strikingly brought into disrepute when one considers the peculiar situation that Bell Med faced. One will recall that Bell Med is the provider of computing services to Zeturf and is specifically responsible for ensuring the uninterrupted connectivity of Zeturf's website. As such it is also governed by the Maltese Remote Gaming Regulations.Footnote 29 Bell Med was enjoined by the PMU to shut down Zeturf's website and this was subsequently endorsed by the courts in France. The French judgment was not recognized by the Maltese Court of Appeal but Bell Med remained in breach of French law. It appears that the company was not at ease with the permanence of a judgment against it. However, Bell Med was caught in a legal conundrum as Maltese law provides that changes to the gaming system on a remote gaming website may only be made with the express prior approval of the Lotteries and Gaming Authority.Footnote 30 Under Maltese law the company was therefore legally barred from complying with the order to shut down the website, an order that at the time was valid in French law. Bell Med therefore was placed in the unenviable position of having to choose between breaching the laws of one State or those of another. In essence the company faced an irreducible conflict of obligations.

At an earlier stage, the company attempted to resolve a potential conflict of obligations and brought suit against PMU in Malta. It claimed that PMU acted in a manner that was illegal, abusive and vexatious when it enjoined Bell Med to discontinue the provision of services to Zeturf. Bell Med alleged that this would cause economic loss that would give rise to tortious liability. The action was pursued in the Civil Court where Bell Med requested that PMU be ordered to cease and desist from purporting to exert any right to stop Bell Med from conducting its business.Footnote 31 The court's jurisdiction was called into question by PMU since that entity is domiciled in France. Ironically, Bell Med pleaded the applicability of the Brussels I Regulation, specifically Article 5(3) concerning jurisdiction in matters relating to tort. The fact that the plea was based on the Regulation whose applicability Bell Med repudiated in related proceedings bears witness to the multitudinous opportunities for practitioners to explore potential loopholes in the regulatory web governing online gambling in the EC. In the event the court declined jurisdiction since it surmised that the requirements for special jurisdiction in matters relating to tort were not fulfilled in the present case; the alleged damage, namely the losses caused by the discontinuance of service, would occur principally in France if Bell Med were to comply with PMU's requests.

Bell Med will be comforted by the judgment of the Cour de Cassation as it is unlikely that the French Court of Appeal could justify the barrier to the freedom to provide services on the limited grounds that it may consider. In this particular case, the question of a conflict of obligations will likely be academic. However, other Member States have justified their exceptions to Articles 43 and 49 of the EC Treaty on the grounds of social policy and this appears to be acceptable within the interpretation provided by the ECJ.Footnote 32 On this basis it would appear that companies such as Bell Med would find that the regional and transnational laws that they are subjected to bind them to perform acts that are mutually exclusive. They are effectively the subject of at least two sovereigns and those sovereigns do not always see eye to eye. Whatever the companies choose to do will displease one sovereign or the other and the offended sovereign will exact a heavy price in fines and/or loss of licences.

VI. CONCLUSIONS

The judgment of the Cour de Cassation Footnote 33 is yet another nail in the coffin of protectionist economic policies that are packaged in the legal guise of public policy concerns. Whatever one's view may be regarding the fact that elements of Malta's licensing laws are outreaching extraterritorially in their practical application, one must applaud the fact that the French court's judgment goes some way towards clarifying a previously particularly unclear picture at least in so far as the matter of Zeturf is concerned.

All the same, the European regulatory framework remains convoluted and invites forum shopping for laws and courts. The confusion is still more striking when one considers what a Maltese court would have had to contend with if it were ceased of the substantive proceedings against Zeturf. One will note that the Maltese court would have jurisdiction to hear the matter under the Brussels regime, if applicable, as both Zeturf and Bell Med may be deemed to be domiciled in Malta under the provisions thereof.Footnote 34 If a Maltese court accepted jurisdiction, would it have applied French law or Maltese law to the dispute? If it had opted to apply French law, would it have put itself in the shoes of a French court that would have been more sympathetic to Zeturf's plea of freedom to provide services than the French Court of Appeal actually was? And if it had analysed the purported justifications for restricting the freedom to provide services would it be more inclined than a French court to find that Maltese law contains the necessary safeguards to protect the public policy interests that French law might seek to uphold? Could the Maltese court actually apply a foreign ordre public in preference to its own laws? These will remain moot points in this matter, although one could assume that the hypothetical Maltese court would have be loath to apply foreign public policy in preference to Malta's own laws in the absence of any international instrument that obliges it to do otherwise. Yet these questions expose the stark reality of the need for more clarity in identifying the Member State that is entitled to exercise prescriptive jurisdiction over gaming companies. As matters stand today, different Member States apply mutually exclusive rules regarding the applicable law to disputes concerning gaming companies; the identity of the court seised will often be determinant of the outcome of the case. In the absence of a clear framework, forum shopping and gambling on the law will remain the order of the day.

Notwithstanding the fact that the current legal framework is unsatisfactory, it is hard to construe a possible remedy. Any solution is likely to be objectionable either because it does not go far enough to harmonize laws and raise regulatory standards or because it goes too far and undermines Member States' mastery of their social affairs. The most obvious solution would be to harmonize legislation on a European level. Yet, as enticing as near-uniformity may seem, there is every possibility that any such measure would fail the test of subsidiarity. The social concerns regarding gambling that were noted in Schindler Footnote 35 remain cogent today; Member States view gambling as a vice to differing degrees and Community-wide agreement on the parameters within which it is allowed is unlikely in the immediate future.Footnote 36 The social implications may be too deep to bear broaching. Politically it may be wise for States to reserve their rights to regulate matters of social concern such as gambling. However, pragmatically this might not be the best course to protect societal norms within a Member State; the fact of the matter is that regulating the internet challenges traditional notions of territorial jurisdiction and concerted action is preferable to the free-for-all that persists today. Member States might be better advised to seek common ground and to share their decision-making powers by agreeing to minimum European standards. In the absence of Community initiative to harmonize laws, the market will overtake the legislator and will determine the limits of online gaming by hook or by crook. Despite potential hurdles, the Community could justify harmonizing legislation as necessary for the fulfilment of the internal market, particularly in view of the fact that the ECJ has deemed gambling to constitute a service for the purposes of the EC Treaty.

To date the Commission has chosen to clarify the regulatory anomalies through enforcement actions and it is unlikely that it will propose any Directives or Regulations to harmonise gaming law.Footnote 37 Enforcement actions are pending against seven Member States at the time of writing. Given that the composition of the ECJ has not changed dramatically since its most recent judgment in March 2007,Footnote 38 the outcome of those enforcement actions is likely to consolidate the existing case law and further open up the gambling market to competition. This is commendable in that it will likely increase certainty in respect of the particular behaviour that the Commission seeks to strike down. It is also perhaps the best that the Commissioner for the Internal Market can hope to achieve—such are the social concerns associated with gambling that the Commission itself is reported to have been divided on the desirability of any infringement actions.Footnote 39 The chosen course is therefore potentially the only one that is plausible and is certainly politically expedient in the present circumstances. Nonetheless, it is fraught with legal loopholes; for no matter the lengths that the ECJ may go to in order to provide clear guidelines and safeguards, negative harmonisation can only achieve so much. Fundamentally, negative harmonisation alone cannot force States such as Malta to restrict the conditions under which they allow gaming companies to operate an online business in the virtual territory of another Member State. Effectively the legislative organs of the Community are abdicating their authority to prescribe the limits of the law in favour of the judicial branch and the market. The judicial branch must be mindful of the separation of powers in the EC and must act within those limits. This cannot suffice to safeguard societal norms in a market that knows no borders. In this scenario shared sovereignty in the gaming sector will continue to be better described as displaced sovereignty.

Footnotes

ibid
n 12
n 9
ibid
n 12
ibid
n 1
n 5
ibid
n 1
n 2

References

1 Cour de Cassation, Chambre Commeciale, Financière et Économique, Arrêt No 1023 du 10 juillet 2007, GIE Pari Mutuel Urbain (PMU)/Zeturf, Eturf; the judgment may be viewed at <http://www.gaminglaw.eu/upload/actuality/doc/98-1.pdf> and <http://www.courdecassation.fr/jurisprudence_publications_documentation_2/actualite_jurisprudence_21/chambre_commerciale_financiere_economique_574/arrets_575/br_arret_10674.html> accessed 7 Aug 2007.

2 Case C–275/92 Her Majesty's Customs and Excise v Gerhart Schindler and Jörg Schindler [1994] ECR I-01039.

3 ibid.

4 Council Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2001] OJ L12/1.

5 Malta Lotteries and Gaming Authority, ‘Fact Sheet. Malta: Europe's Gateway for Remote Gaming’ <http://www.lga.org.mt/lga/files_folder/FactSheet%20-%20EU%20Gateway.pdf> accessed 6 Aug 2007.

6 Malta Lotteries and Gaming Authority, ‘Processing of New Remote Gaming Applications’ (2007) <http://www.lga.org.mt/lga/news_full.asp?newsID=50> accessed 6 Aug 2007.

7 Swiss Institute of Comparative Law, ‘Study of Gambling Services in the Internal Market of the European Union’ (2006) <http://ec.europa.eu/internal_market/services/docs/gambling/study2_en.pdf> 613, accessed 6 Aug 2006.

8 See Case C–243/01 Gambelli and Others [2003] ECR I-13031; and Joined Cases C–338/04 Massimiliano Placanica, C–359/04 Christian Palazzese, and C–360/04 Angelo Sorricchio.

9 Tribunal de Grande Instance de Paris, Ordonnance de référé 08 juillet 2005 PMU/Zeturf, Eturf <http://www.legalis.net/jurisprudence-decision.php3?id_article=1459> accessed 7 Aug 2007.

10 Zeturf.com, ‘Why bet on Zeturf?’ <http://www.zeturf.com/en/static/pourquoi_zeturf> accessed 7 Aug 2007.

11 Tribunal de Grande Instance de Paris, Ordonnance de référé 02 novembre 2005 PMU/Computer Aided Technologies, Bell Med <http://www.legalis.net/breves-article.php3?id_article=1511> accessed 7 Aug 2007.

12 Cour d'appel de Paris 14ème chambre, section A, Arrêt du 4 janvier 2006 Zeturf, Eturf/PMU <http://www.legalis.net/jurisprudence-decision.php3?id_article=1552> accessed 7 Aug 2007.

13 Recognition and enforcement of the judgment of the French Court of Appeal was also sought in Malta; citing the judgment of the Maltese Court of Appeal discussed below, the Civil Court denied recognition and enforcement. See Civil Court (First Hall) Application 82/2007 GIE Pari Mutuel Urbain (PMU) vs Zeturf (2 Mar 2007).

14 (n 12).

15 (n 9).

16 Civil Appeal No 139/2006/1 GIE Pari Mutuel Urbain (PMU) vs Zeturf (12 Jan 2007).

17 Case C–266/01 Préservatrice foncière TIARD SA v Netherlands [2003] ECR I-4867.

18 ibid.

19 (n 12).

20 Civil Appeal Number 224/2006/1GIE Pari Mutuel Urbain (PMU) vs Bell Med Limited u Computer Aided Technologies Limited (26 June 2007).

21 PMU also requested a reference regarding whether or not the judgment of the French Court should be deemed to be a ‘civil or commercial matter’. This second request was summarily denied since it was formulated as a question regarding the particular facts of the case that the national court should apply the law to, rather than a question of interpretation on which a national court would require the ECJ's authoritative interpretation per Article 234 of the EC Treaty.

22 A Briggs and P Rees, Civil Jurisdiction and Judgments (4th edn, Lloyd's of London Press, London 2005) 495–96.

23 ibid.

24 (n 1).

25 Case C–124/97 Markku Juhani Läärä, Cotswold Microsystems Ltd and Oy Transatlantic Software Ltd v Kihlakunnansyyttäjä (Jyväskylä) and Suomen valtio (Finnish State) [1999] ECR I-06067.

26 Case C–67/1998 Diego Zenatti [1999] ECR I-7289.

27 Case C–243/01 Gambelli and Others [2003] ECR I-13031.

28 (n 5).

29 Legal Notice 176 of 2004, Remote Gaming Regulations 2004.

30 ibid Art 27.

31 Civil Court, First Hall, Cit Nru 822/2005 Bell Med Limited vs Pari Mutuel Urbain (PMU) (30 May 2007).

32 Case C–275/92 Her Majesty's Customs and Excise v Gerhart Schindler and Jörg Schindler [1994] ECR I-01039; Case C–67/1998 Diego Zenatti [1999] ECR I-7289.

33 (n 1).

34 Art 60.

35 (n 2).

36 Reuters, ‘Update 2—EU to decide on several gambling legal actions’ (26 June 2007) <http://www.reuters.com/article/governmentFilingsNews/idUSL2690991920070626> accessed 6 Aug 2007.

37 See NA O'Connor, ‘From Schindler to Placanica and Beyond’ (2007) <http://www.bettingmarket.com/eurolaw222428.htm> accessed 6 Aug 2007.

38 Joined Cases C–338/04 Massimiliano Placanica, C–359/04 Christian Palazzese, and C–360/04 Angelo Sorricchio.

39 T Buck, ‘Seven countries face legal threat on betting markets’ Financial Times (London, 5 April 2006) <http://www.ft.com/cms/s/9edcf756-c440-11da-bc52-0000779e2340.html> accessed 6 Aug 2007.