103 It should be noted at the outset that the principle of Member State liability for loss and damage caused to individuals as a result of infringements of EU law for which the Member State can be held responsible applies to any case in which a Member State infringes EU law, whichever is the authority of the Member State whose act or omission. Gambling is defined in numerous ways, but requires betting or wagering on an outcome that is at least partially based on chance, and done so in order to win something. Illegal gambling is any type of gambling that is specifically prohibited by state law. Gambling Involves a Bet.
In decades past, gambling used to be a crime almost everywhere other than Las Vegas, Nevada and Atlantic City, New Jersey. Today, more and more states have legalized various types of gambling, ranging from Indian casinos to poker rooms and horse racing tracks. While some states have legalized certain types of gambling, other types of gambling are still illegal. All states have laws that prohibit at least some type of gambling.
Gambling is sometimes referred to as “gaming.” Depending on the language of state laws, gambling and gaming can mean different things or the two terms can be used synonymously. “Gaming” typically refers to playing games for wagers, such as craps, card games, slot machines, and roulette. “Gambling” may refer to these same types of games, but it also includes other types of activity such as sports wagers.
Gambling is defined in numerous ways, but requires betting or wagering on an outcome that is at least partially based on chance, and done so in order to win something. Illegal gambling is any type of gambling that is specifically prohibited by state law.
Gambling Involves a Bet
While most instances of gambling occur when someone bets money, courts have ruled that gambling can occur whenever a bet is made using anything of value. The item of value is sometimes known as “consideration,” and can encompass anything that has any worth. The amount of the bet doesn't matter, and as long as the property that's at stake in the game is worth some value, the game is gambling.
- Case law in relation to the gambling sector. The case law is not yet settled as a number of other cases are still pending and will be decided upon in the near future: A new judgment of the Court of Justice of the EU will be delivered on June 30 in the case 212/08 Zeturf. Case C-347/09 Dickinger (opinion Advocate-general Bot was delivered on 31.
- Furthermore, the compliance of draft national legislation on on-line gambling with EU law will continue to be assessed under the so-called notification procedure12. The Commission will Accelerate completion of its assessment of national provisions in the pending infringements cases and complaints and take enforcement action wherever necessary.
'Games of Chance'
State gambling laws outlaw games, bets, or wagers that are at least partially dependent on some element of chance. If a game or competition that gives prizes to winners is based on skill, such as a car race or a shooting competition, it is not considered gambling. (However, other laws or restrictions may apply in order to make such competitions legal.)
What differentiates a game of skill from a game of chance is usually determined by which of the two elements has the greatest impact on the outcome. If chance is the biggest factor, the game is one of chance, and making bets or wagers on such games is gambling. Courts have ruled that in games that involve both skill and chance, and where a small group of skilled experts routinely win, this does not necessarily make the game one of skill. In determining what defines a game of skill or chance, courts often judge the game on the average player. If the average player's chances are dominated by chance, the law considers it a game of chance.
A Chance of Winning
If you don't have any chance of winning something of value, you're not gambling. Gambling requires that there is a chance you might win something for your bet, whether it's money, property, or even more chances to play. Further, courts have ruled that you personally don't need to have placed any wager to be convicted of gambling. As long as a group of people have a chance to win something and at least some of them have made a wager, you can be convicted of gambling if you are part of the group and stand a chance at winning.
Prohibition Against Making a Profit
Those who win at gambling have obviously made some money. But aside from the players, what about the businesses who run or operate the gambling game or establishment?
Some state laws specifically allow for 'social gambling' while prohibiting gambling as a business. Business gambling occurs when a person or organization operates a gambling hall that collects fees or takes a portion of the amount the players bet. For example, a person who holds a 'casino night' party and charges an entry fee is engaged in an illegal activity in a state that prohibits business gambling or gambling for profit. So-called “social gambling,” where the players are all equals an no one is collecting fees or making a profit apart from the outcome of the game -- such as in a home poker game -- is often not considered illegal. However, even social gaming is illegal in some states.
While all states criminalize gambling to some extent, they also have vastly different penalties associated with gambling crimes. The type of penalty someone faces after being convicted of illegal gambling largely depends upon the state and the circumstances of case, though sentences typically involve many of the same types of penalties. Gambling can be classified as either a misdemeanor offense or a felony, depending on the situation and state law.
Jail or Prison
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Anyone convicted of misdemeanor gambling faces up to a year in a county or local jail, though state laws differ widely. Some states impose small maximum jail sentences for misdemeanor gambling, such as 20 days in jail. Felony convictions, on the other hand, can bring a year or more in prison, and sometimes as much as 10 years, especially where organized, professional gambling is present.
Misdemeanor fines for gambling are quite common, and range from a few hundred dollars up to $1,000 or more. Felony gambling fines can be significant, sometimes as much as $20,000 or more. Fines can be separate from, or in addition to, jail or prison sentences.
Instead of, or in addition to jail time and fines, courts can impose probation sentences for gambling convictions. These probation periods usually last 12 months or more. When a court orders probation it tells you to do (or not do) certain things. For example, the court may order you to stop gambling or to participate in a gambling addiction treatment program. You'll also probably have to report to a probation officer and stay out of trouble with the law. If you don't live up to the probation conditions, the court can revoke your probation and send you to serve the original jail or prison sentence.
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Speak to a Lawyer
Illegal gambling charges can impose significant penalties and can have a serious impact on your life, even if you aren't convicted. Anyone charged with a gambling crime needs to speak to a local criminal defense lawyer at the first opportunity. A good defense attorney will know the gambling laws in your state and have experience with the local prosecutors, judges, and court system. It's always in your best interests to speak to a local criminal defense attorney anytime you are charged with a gambling crime.
Last 30th June another remarkable judgment on the matter of online gambling was delivered by the European Court of Justice. The case (C-212/08, Zeturf Ltd v. Premier ministre) involved a Maltese company offering gambling services via the Internet. Although Zeturf had been awarded a license to operate in Malta, it was prevented from providing betting services in France due to the local horseracing regulation allegedly in breach of European law. In particular, Zeturf argued that the French law, by granting a monopoly in favour of the PMU (Groupement d’Intérêt Économique Pari Mutuel Urbain) for the management of off-course betting on horseracing, restricted its freedom to provide services. Unlike the Portuguese law considered by the Court in the Liga Portuguesa case, the disputed legislation, having been enacted in 1997, did not draw any distinction between online and offline betting. The case began in 2005, when Zeturf asked for the repeal of the rules in question before a French court. As a consequence, the Conseil d’Etat requested the European Court of Justice to give a preliminary ruling on two questions.
At the outset, the Court recalled the key points of the preceding case law on the matter. First, it pointed out that States are free to determine the desired level of protection within their territory and to establish the most appropriate measures for pursuing objectives such as consumer protection and safeguarding of public order. Such measures, although they restrict the freedom to provide services, may nevertheless be justified to the extent they prove effective for the achievement of the objectives above. In the light of that, conferring the exclusive rights for the management of off-course horseracing betting to an entity subject to control by public authorities, as PMU is, could be a sound way to achieve the overriding general interests underlying the French policy on gambling. As the Court made clear in the Liga Portuguesa case, a monopoly does not automatically imply an unjustified breach of EU law. Rather, the problem becomes to ascertain whether the establishment of that monopoly is consistent with the domestic policy as well as proportionate to the objectives to be achieved. The Court of Justice then focused on two objectives at the root of the French legislation on horseracing betting. The prevention of fraud and money-laundering, Together with the safeguarding of public order and consumer protection could constitute a sound basis for measures affecting the freedom to provide services in the market for gambling. However, it is for the national court to determine whether these restrictions are effective and necessary to achieve the desired level of protection. On the contrary, the Court declined to consider contributing to rural development by the financing of horse breeding as being of overriding public interest: as the Court had pointed out in the long standing case Schindler, the financing of social activities must constitute only an incidental beneficial consequence and not the real justification for the restrictive policy adopted.
Having said that, the Court examined the characteristics of PMU. The Court recalled the hypocrisy test developed in its decisions (first in Gambelli), requiring that restrictions ON the freedom to provide services must serve to limit betting activities in a consistent and systematic manner; more in detail, as stated in the Markus Stoß and others case, the establishment of a monopoly must be accompanied by a legislative framework adequate for ensuring that the holder of the monopoly will in fact be able to pursue the objectives to be achieved by means of an offering that is quantitatively measured and qualitatively designed by reference to the said objectives and subject to strict control by the public authorities.
The Court reasoned that conflicts of interest could arise when an operator aims on one hand at maximizing its income and on the other at reducing gambling opportunities. Most notably, such a conflict could emerge with respect to a public or a non-profit-making operator. Similar issues were addressed by the Court of Justice in facing the problematic Italian legislation on betting services, which posed restrictions (by limiting the number of licenses issued by the Public Administration and excluding several foreign operators) seemingly intended to increase tax returns instead of actually limiting gambling opportunities. In the Court’s opinion, the holder of the monopoly is in a very favorable position to increase betting activities by organizing more events on which bets can be placed. Accordingly, it is for the national courts to evaluate whether the controls by public authorities over these operators are appropriate for achieving the objectives pursued by domestic legislation.
Further, the Court focused on another aspect connected to the assessment to be carried out by the national court. In addition to the above, the first question referred for preliminary ruling asked the court whether the pursuit of a dynamic commercial policy by the holder of the monopoly with respect to the organization of gambling activities has to be considered in compliance with the EU rules regarding the freedom to provide services. As the Court explained in Placanica, to constitute a valid alternative to illegal gambling, authorized operators must be reliable and, most important, attractive for consumers. Therefore, a controlled expansion in gambling, pursued by offering an extensive range of games, advertising the services on a certain scale and using new distribution techniques may nevertheless be consistent with the objectives underlying the restrictions posed by domestic legislation. Such a controlled expansion becomes in fact an essential condition for channeling consumers into controlled activities. Rather, it is for national courts to determine whether dynamic commercial policies pursued by holders of exclusive rights may be regarded as part of said controlled expansion in the sector or goes instead beyond what is necessary to this end. These assessments have to be carried out in the light of the particular features of each case.
Finally, the Court of Justice addressed the second question raised by the French court. The point at issue concerned whether the assessment of the prejudice to the freedom to provide services must be conducted with respect to the sole market of online betting rather than to the market of gambling (online and offline) as a whole. In the wake of its ruling in the Liga Portuguesa case, the Court pointed out that the characteristics of the Internet makes online transactions a source of greater risks in the area of consumer protection. However, the Internet has to be included among the various channels through which gambling services are provided. Since the French legislation at stake applied to both online and offline betting, in the absence of any distinction between traditional and new channels, the restrictions imposed on the freedom to provide services have to be assessed taking into account the entire sector concerned.
In conclusion, it can be said that also in this case the European Court of Justice found that the law at stake was not in direct violation of the fundamental principles of the European Union; however it is for the national court to evaluate whether it actually complies with the proportionality and suitability test. That is like saying “nothing new under the su