Austria Discriminates Against Foreign Companies
The Austrian Finance Ministry had previously rejected Hit's advertising request and so the company challenged the decision in the Vienna Administrative Court. The Administrative Court, in turn, requested the EU Court for a preliminary opinion on whether the relevant provisions are in line with the EU body of law. The EU Court is expected to rule, at the earliest in a few months however it tends to follow the opinion of the Advocate General in 80 % of cases, according to Austrian press agency, APA.
Austria's history of non-compliance with EU legislation
In 2003, Austria amended its Gaming Act and introduced a ban on advertising games of chance by foreign (non-Austrian) companies in the territory of the Republic of Austria. In 2004 and 2005, Hit repeatedly warned the competent authorities in Austria about the incompatibility of the Act with the acquis communautaire and the Austrian Ministry of Finance always tried to avoid a clear answer. The first complaint was sent to the European Commission in 2006, consequently the commission asked the Republic of Austria to supply an explanation and harmonise its gambling regulations. Following the Commission's request, the Austrian government finally amended the Gaming Act in 2008, thus formally allowing foreign companies to advertise in Austria.
The disputed Article 56 of The Austrian Gaming Law was amended with the addition of a second paragraph allowing foreign gambling operators to advertise, provided they obtain a permit from the Austrian Ministry of Finance. In May 2009, Hit submitted an application for such permit to the Ministry of Finance, complying with all the requirements of the second paragraph. In July 2009 the Austrian Ministry of Finance, more or less as anticipated, refused the application for an advertising permit on controversial grounds. Although the Republic of Austria formally amended its Gaming Act, the government obviously continued its covert protection of the national monopoly of the local casino operator whilst justifying its illegitimate protectionist measures as provisions aimed at protecting customers and guaranteeing socially responsible behaviour. Since Casinos Austria, the Austrian gaming giant and monopoly, is one of the largest casino companies in the world, operating large casinos in Austria as well - not far from Hit's casinos in Slovenia - it is clear that any restrictions on advertising by foreign companies - allegedly to protect customers in the Republic of Austria - is discriminatory and a disproportionate measure whose true aim is to protect the national company from foreign competition.