57 PUBLIC GAMING INTERNATIONAL • SEPTEMBER/OCTOBER 2025 as social works, charitable words, sport or culture” In 2024, the European Court of Justice recalled (in ruling Chaudfontaine C-73/23) that cultural factors and differences relating to minimum and maximum stakes and winnings, as well as the chances of winning, create a distinction, in the eyes of the average consumer, between lottery and other games of chance or gambling. However, in recent years, online operators have also proposed look-a-like games as lottery games contesting even though these are lottery games. Some of them try to target the lottery customer (the “carrot” policy) before steering them to high-risk games. These operators are typically based in classic ‘offshore’ countries that shelter illegal online gambling operators, many of whom offer “parasitic” betting on lotteries, whereby consumers bet on the outcome of legitimate legally-operated lotteries. Consumers often do not even realize they are playing on an illegal gambling website and not the authorized state lottery. Even if online development and innovation were considered to be a fair part of a legitimate economic competition between operators, the fact that some operators or even regulators blur the line between authorized lottery games and other, higherrisk types of games of chance, is risky for the very reason of the historical, universal and societal role of lottery gaming. In Europe and in the world, the debate is thus growing around fragmentation of regulations or harmonization and opening or controlled approaches (monopoly system). The European Court of Justice, however, always emphasizes that consumer protection is the key to any national gambling regulations and allows discretion in regulating gambling in the absence of harmonisation. Indeed, the games of chance sector has contributed to the development of the Court's case law on the four fundamental freedoms (movement, goods, services and capitals) enshrined in the Treaty. This case law showed that restrictions on lotteries and other games of chance have influenced the Court's interpretation of the Treaty provisions on those fundamental freedoms, taking into account the cultural, religious and moral differences at stake in this area. The Court applies a more deferential standard of legal control but ensures that the objective underlying the restriction of any of these four fundamental freedoms in a gambling context is pursued in a consistent and systematic manner, and that the proportionality principle is respected. The Court of Justice has judged that a policy whereby more dangerous games are largely available through many operators while low-risk games are controlled under a monopoly is not consistent. The Court has specified that the policy adopted by a Member State must take account of the different risks for the consumer according to the type of games involved, and lotteries are less dangerous than betting or casino games2. In particular, the caselaw of the European Courts requires that Member States uphold a consistent gambling policy. As such a “policy of controlled expansion of gambling activities may be consistent with the objective of channeling them into controlled circuits by drawing gamblers away from clandestine, prohibited betting and gaming to activities which are authorised and regulated.” (Placanica, C-338/04, para.56) The fact that two categories of operators may appear to share the same objective (consumer protection) does not mean that their situations are comparable in terms of a given policy. The structural, legal and functional differences between lotteries and other games of chance justify the application of separate arrangements to them, which need to be explained at all levels (national, European and beyond). The European Court of Justice and the EFTA Court both recognized that a monopoly system is compatible with EU law and can even be considered more ‘effective’ in ensuring the protection of national objectives3. The Courts always state that a monopoly can be justified only in order to ensure a particularly high level of consumer protection, with means of a supply that is quantitatively measured and qualitatively planned to achieve this objective and subject to strict control by the public authorities. Finally, the Court ruled that online is recognised as more dangerous and not as just another form of distribution of games. Moreover, according to the European Commission SNRA, with regard to the risks of money laundering (ML), online gambling is considered to be at level 4, the highest risk; while lotteries are at level 2 (low risk). Therefore, it is very important to be able to defend at the national level, and in the European context, the legal, conceptual and social uniqueness of lotteries, including its low-risk approach. If we want to protect the future of Lotteries and their broad societal role, we need to create a constitutional “safe harbor”, to guarantee the exclusive right model even in an otherwise less consistent environment so that Lotteries can continue to play an important societal role. Lotteries are not only operating low risk games for the benefit of society, they also do so to provide consumers with a safe, low risk and entertaining alternative for high-risk “hard” games. As the President of the Court of Justice of the EU said: Lotteries are not only part of our cultural heritage, but they also belong to our “social fabric”. In the European Union area, it is long recognized that competition is detrimental in the gambling sector. Since the Advocate General opinion in Schindler (and later re-affirmed by other AGs and the Court), it is clear that competition does not benefit consumers but leads to overheating of the market which means more problem gambling and addiction. In practice, online operators can only compete if they use tools and methods that tend to create problems (aggressive advertising, incentives to play like bonuses, VIP treatment, etc.). 2The primary risks are those linked to the behaviour of the player, and depend on the types of game: see Advocate General Bot's opinion in Case C-347/09 of 31 March 2011, Dickinger and Omer, paras. 127 to 130 and Carmen Media, C-46/08, para 100. It is also recently stated in Chaudfontaine Loisirs C-73/23, para 44. 3Judgment of 20 September 1999, Läärä, C-124/97, para. 42 Case E-1/06 EFTA v. Norway
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