ECJ refuses to ban monopoly in the betting on horseracing market, Zeturf, C-212/08

Contrary to the expectations of the Maltese betting on horseracing company Zeturf Ltd, the ECJ refused to declare that the French monopoly at this market (held by Pari Mutuel Urbain) is disproportional or serves the interest of excluding competitors rather than protecting the society from possible money laundering through betting or from addiction.

The French Government maintained that the monopoly is necessary to prevent too high addiction, to avoid money laundering, to comply with moral standards. Zeturf argued that the French monopoly advertises betting and, thus, increases addiction (§§ 65, 66), that this monopoly hides money laundering (§ 49). The judges decided to leave the “real reasons” (§§ 47, 62, 69) and proportionality (§§ 43, 70, 71) questions to the national courts. Obviously, this increases the national discretion for introducing this kind of monopolies.

It is remarkable that the moral standards argument did not stop the ECJ from opening the profession of notary to foreigner nationals, and from allowing regulated professions (accountants, and attorneys?) to contact potential clients with commercial proposals.

ECJ allowed accountants (& attorneys?) to contact directly a potential client in order to propose their services (démarchage).

In case Société fiduciaire nationale d’expertise comptable, C-119/09, the Grand Chamber of the ECJ interpreted that the prohibition for accounting experts (and by extension, for attorneys) to address potential clients directly in order to propose their services is incompatible with the freedom of commercial communication (Article 24 of the directive 2006/123 on commercial communication of regulated professions).

The ECJ interpreted that such a total prohibition is incompatible with this kind of freedom even if it is necessary to guarantee the independence of the profession, is non-discriminatory, proportional, and based on public interest (§§ 44-45).

3 EU States, and the Commission submitted their observations. The ECJ rejected the opinion of the Advocate General, which happens very rarely.