58 PUBLIC GAMING INTERNATIONAL • SEPTEMBER/OCTOBER 2025 PUBLIC GAMING INTERNATIONAL • MARCH/APRIL 2024 However, because of their societal role and contributions, lotteries are not just gambling services like other gaming operators. The societal role of a lottery has two key components: The first societal objective is to bring low-risk games to a large community of players providing entertainment and dreams of big prizes, which attracts and channels people to low-risk alternatives and away from high-risk games, which in turn makes society less dependent on high-risk games and less vulnerable to health problems. The second objective is to return substantial amounts to non-economic parts of society (building civil society including education, sport, fight against poverty, development aid, culture & cultural heritage, R&D, scientific research, etc.), as recognized by the European Court of Justice 30 years ago in the Schindler case. Both those components form part of the societal role of lotteries in the EU. In 2010, in its December conclusions, the EU Council took a step further and officially endorsed the societal role of lotteries, specifically for their role in the funding of good causes. The Council recognizes “that contributions, in particular from state lotteries or lotteries licensed by the competent state authorities play an important role for society, via for example the funding of good causes, directly or indirectly where applicable.” (Council document 16884/10). This was not followed by the political actions needed for it to take effect. In recent years we see this traditional role of lotteries generating funds for good causes to be under threat as the online gambling industry is aggressively advocating for liberalization, aggressive marketing strategy and diversity of games in spite of the growing problem of illegal gambling. This is, of course, the wrong answer. More liberalization only leads to more problem gambling. A strict regulatory approach (the controlled expansion theory) with a strong emphasis on responsible gambling as promoted by the Lottery associations like EL, combined with effective law enforcement, is the only way forward. However to be successful it is vital to give lotteries the support and the room they need to grow and prosper for the benefit of society. Indeed, it is time for Lotteries to be legally safeguarded within a policy that recognizes that high-risk games are already under-regulated and too accessible, and that lotteries should not just be subjected to the rules of the market and normal exceptions to economic freedoms (so not tested against consistency). Otherwise, This calls for creating constitutional safe harbor. This can be made by integrating the protection of lotteries in a Protocol to the TFEU (cultural heritage of lotteries and contributing to non-economic values/ social construction of EU, based on both article 3 TUE and article 167 TFEU). The protection of lotteries in the EU, or elsewhere, is even a benefit for other (gambling) actors as it provides clarity and sustainability. Lotteries will find themselves in a competitive environment which is in no way good from a consumer protection and public order perspective. Lottery games are even at risk of becoming irrelevant (especially mass parimutuel type of games which require maximum playership which is only possible through exclusive rights to operate the games.) The concerns created by illegal gambling operators (operating mainly from Malta) have been in the spotlight recently at the Court of Justice, especially by a recent AG Opinion in the Wunner case (C-77/24). It is sometimes estimated, even at the European Parliament, that almost 70% of online gambling takes place on unlicensed (illegal) platforms. However, the real size of the illegal market is difficult to assess. The European Court of Justice has already confirmed, in 2010, that the responsibility for an effective enforcement system and the fight against illegal online gambling lies with the Member States (C-46/08). Indeed, the analysis by regulators of illegal gambling being offered in EU countries demonstrate that there is a concentrated foreign origin of illegal operators: 50% of illegal websites are based in Curaçao and 20% in Malta or Cyprus. Also, as established by the scientific community, illegal online gambling presents major risks in terms of public health and gambling addiction. Even in this context, states can still address illegal gambling in an effective way, by monitoring the illegal market, by improving legislation and law enforcement, implementing geo-blocking (e.g. in Austria, France, Belgium) and payment blocking where necessary (the Netherlands), and developing a controlled expansion policy for operators to be legally taxed and regulated. Some online operators advocate for expanding the regulated market, buy which they mean licensing more and more private operators, contending that this is the best way to combat illegal gambling. This is never the case. In countries who adopted this strategy (the Netherlands, Germany), we see a serious threat for the way lotteries operate, a rise of gambling addiction and not even necessarily a decline of illegal gambling. Indeed, unless there are serious limitations, the granting of more online operator licenses only makes it legally more difficult to argue that lotteries should retain their monopoly of low-risk games while hard-risk games are freely available. The role of lotteries to channel players to legal, safe and responsible gaming, requires reflection on their specific role in society and the legal protection for it. This reflection focuses on the need to protect legal lotteries, as opposed to illegal or ‘parasitic’ ones, and to effectively regulate other games of chance, in order for lotteries to continue to contribute to the social fabric of the EU (by financing good causes) and to promote legal, safe and moderate gambling that puts consumer protection first. Lotteries have been around for 600 years and are not going to disappear, but their role will be weakened if regulators and policy-makers fail to act against overly aggressive competition from illegal online operators. n
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