Tuesday, 24 October 2023

Vidrean – Căpușan Tudor Dumitru, Lawyer Arad Bar Association PhD assistant professor, Faculty of European Studies, UBB Cluj – Napoca

            In recent months, the political factor in Romania has increased the pressure on the gambling industry, in the sense that they want to promote legislation that will lead to the disappearance of this industry.

According to a proposal initiated by the Romanian Government to amend the provisions of GEO 77/2009, the following measures are proposed:

  1. banning gambling halls within localities;
  2. requiring the providers of online gambling services to locate their servers on the premises of the ONJN;
  3. the obligation of the person interested in organizing games of chance to have a permanent establishment on the territory of Romania in order to obtain an operating license;
  4. the obligation to pay bonds according to the amount of gaming revenue generated, with a minimum of €500,000;


The analysis of these proposed measures shows that the aim is to drastically reduce the number of players in the Romanian gambling industry. From our point of view, such a situation blatantly violates the provisions of Article 135 of the Romanian Constitution, which defines the Romanian economy as a market economy based on the principle of free competition. Free competition in a market economy means minimal state intervention in regulating the market, but in the present situation we can see that we are in a totally absurd situation: The Romanian state decides who stays in the gambling industry and how it should operate.

Such a situation is totally impermissible and clearly unconstitutional. Similar criticism is also directed at the measure on the location of gambling halls outside localities, which is in contradiction with the provisions of Article 53 (2) of the Romanian Constitution, which allows the prohibition of certain rights, but with strict respect to the principle of proportionality.

The location of the venues outside the cities is a completely disproportionate measure, since the access of the players will be very limited due to the lack of transportation, as well as for the connection of these venues to the utilities. Consequently, we consider that such a measure depriving this industry of access to the modern infrastructure of the localities is contrary to the provisions of Article 53 para. (2) of the Romanian Constitution.

With regard to the measures to locate servers for the online mode on the territory of Romania and to grant operating and operating licenses only to persons having a permanent establishment on the territory of Romania, we consider that this issue constitutes a clear violation of the principles of free movement of services and capital guaranteed by Articles 56 and 63 TFEU. Moreover, the conclusions of the Centros case[1], in which the Luxembourg court held that the pursuit of economic activities in the territory of a Member State by an economic operator registered in another Member State cannot be restricted by factors such as the existence of an establishment in the territory of the host Member State or the holding of a minimum amount of share capital, can be used in this respect.

The Romanian government’s proposal on these issues constitutes an unacceptable interference with the free movement of capital and services within the EU single market, which will certainly be sanctioned by the Court of Justice of the European Union.

With regard to the proposal to pay a bond, we consider that this is also contrary to Art. 53 para. (2) of the Romanian Constitution, given the fact that such a guarantee represents for many of the players involved in the industry an impermissible fiscal burden. Here we can appeal both to the case law of the CJEU (Chimelewski case[2]) and to the case law of the Court of Cassation of Justice – SCAF (civil decision no. 604/07.02.2023), which have ruled that financial burdens must be reasonable. Especially as there is no basis for this measure, i.e. no expert study demonstrating that the industry is at high risk of non-compliance with tax obligations.

On the contrary, the gambling industry is one of the most disciplined industries in the Romanian economy in terms of tax compliance, which further demonstrates the illegality and futility of such a measure.

In conclusion, we can state that the proposals to amend GEO 77/2009 suffer from obvious criticisms of illegality, both from the perspective of constitutional standards and European law. Therefore, our recommendation is that the Romanian government authorities should refrain from changes that violate the market economy principle, the proportionality principle, or the principles of free movement of services and capital, and avoid an unprecedented measure in the history of the EU: the disappearance of a highly tax-compliant industry.

[1] CJEU, preliminary ruling of 09.03.1999, Case C-212/97

[2] CJEU, preliminary ruling of 16.07.2015, Case C-255/14

Author: Editor

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