Gambling advertising: McGrath shuts down hopes for an EU-wide ban, privileges member states
In the European debate on gambling regulation, advertising remains a grey area. Despite political pressure and growing social concern, the European Commission has made it clear that it does not intend to propose an EU-wide ban. , European Commissioner for Justice, Democracy, the Rule of Law and Consumer Protection, confirmed this in response to a written question from Italian (Movimento 5 Stelle), submitted on 18 March.
Morace had asked the Commission whether it intended to implement an advertising ban similar to those in place for tobacco and alcohol, highlighting the lack of a harmonised EU framework and drawing attention to Malta’s “Bill?55”, which she claimed undermines judicial cooperation within the EU.
“The Commission does not intend to propose EU-level legislation to ban gambling advertising. Such matters are regulated by national gambling laws.”
A fragmented market: balancing economic freedom and consumer protection
Morace’s question underscored serious concerns. With 27 different national regimes and an increasingly elusive online market, gambling has become “a European issue.” She pointed to the proliferation of misleading advertisements targeting vulnerable individuals and minors, and the flourishing illegal market, a development enabled by lax jurisdictions.
The Commission responded that existing frameworks – namely Directive 2005/29/EC on unfair commercial practices and Directive 2010/13/EU on audiovisual media services – already prohibit misleading or aggressive advertising, particularly when targeting minors. However, enforcement is delegated to Member States. In short, Brussels issues warnings but leaves the control to national authorities.
The Malta angle: the controversial “Bill 55”
Morace also directed criticism at Malta’s legislation, known as “Bill?55” or Article 56A of the Gaming Act, which she argued creates a legal free zone. It bars the recognition and enforcement of foreign court rulings against Malta-licensed gambling firms. This, she claimed, undermines the principle of mutual recognition of judicial decisions under EU law.
Commissioner McGrath confirmed that on 18 June 2025, the Commission initiated infringement proceedings under Article 258 TFEU against Malta (case INFR(2025)2100), citing non-compliance with the Brussels?I?bis Regulation (1215/2012), which governs cross-border civil and commercial judgments.
The precarious balance between national jurisdiction and EU rules
At the core lies a question: how far may a Member State go to protect its domestic operators in the name of national regulatory sovereignty? Conversely, how vigorously can the EU enforce shared standards to prevent legal distortions, competitive imbalances, and regulatory arbitrage?
For now, the Commission seems intent on respecting Member States’ jurisdiction. It does not rely on Article 168 TFEU (public health) to justify advertising bans. Nor does it view Article 35 of the EU Charter of Fundamental Rights – which safeguards the rights to healthcare and prevention – as a valid legal basis for direct intervention. McGrath emphasised that the Charter applies only in the context of EU law implementation.
A glimpse of hope: the digital fairness act
Although a direct ban on gambling advertising is off the table, the Commission is preparing the Digital Fairness Act – a legislative initiative aimed at tackling manipulative digital design, including addictive services and loot boxes in games. While not gaming-specific, this Act signals the Commission’s intent to act on behavioural risks, especially among minors and young people.
What lies ahead?
The online gambling industry continues its rapid European expansion, outpacing regulatory frameworks. The Commission appears determined to uphold economic freedoms and avoid overlapping regulations but is closely monitoring potentially harmful practices through broader tools like consumer protection laws and digital fairness regulations.
The unfolding legal saga over Malta is pivotal: should infringement proceedings proceed to the European Court of Justice, the ruling could redefine the extent of Member States’ legislative autonomy in gambling regulation.
For now, gambling advertising remains a battleground where Brussels observes and warns but refrains from direct action. The sector must tread a fine line between complying with varied national regulations and upholding ethical standards.
This article was first published in Italian on 16 July 2025.
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