Uncle Sven Knows Best: The EJC, Swedish Gambling Restrictions, and Outmoded Proportionality Analysis

Abstract

The free movement of services is a fundamental tenet of the European Union’s Common Market. Gambling services’ free movement, however, has long been obstructed by municipal gambling restrictions. One such restriction in place in Sweden authorized the prosecution of two newspaper editors for publishing advertisements of foreign-based online gambling operators. In the course of the editors’ appeal from their conviction, the Swedish courts referred questions to the European Court of Jus-tice regarding the compliance of Sweden’s domestic restriction with European treaty provisions enshrining the free movement of services. The Court of Justice provided little guidance, however, when it addressed the dispositive question of proportionality; that is, whether Sweden’s law went beyond the point needed to affect Sweden’s legitimate underlying policy objectives. The court, in its deferent and cursory proportionality analysis, employed a standard ill-equipped to account for the effects national gam-bling restrictions have on the Common Market in the online age.