Anyone who knows about the messy and confusing regulation in force in Spain regarding sports betting could think that this is not the best moment for drawing up an introductory article regarding the legal regime for sports betting in Spain. And this is logical considering the fact that we are currently in a period of transition, in which an out of date, messy and dysfunctional legal regime is still in force although we can reasonably expect the introduction of a new set of regulations that we hope will face the real legal problems that arise these days with regard to sports betting (1).
However, from an European perspective, perhaps it is a good moment to face it if we take into account the fact that this regulatory provisional status also applies to the European framework as a consequence of the recent and continuous pre-legislative work within the European Community (not yet moulded into a specific Directive or into a European Regulation regarding this aspect of European Law), in part due to the important and conclusive case law of the Court of Justice of the European Communities (hereinafter "ECJ") in this area (in particular, the Decisions regarding the cases of "Gambelli (2)" and "Placanica (3)". This Case Law results from a long series of decisions regarding the regulation of gambling, in which the ECJ adopted its current doctrine with a view to achieving better harmonisation of national law with European regulations.
It is true that the European High Court has restricted the application of the initial doctrine which, for example in the case of sports betting, we can find in case C-67/98 (Questore di Verona/Diego Zenatti). In the decision that resolved this matter, the ECJ declared that the provisions of the EU Treaty regarding the free provision of services did not conflict with national legislation (Italian in this case) allowing certain bodies to reserve the right to collect bets on sporting events, when this legislation is properly justified by social policy objectives designed to limit the negative effects of these activities and as long as the restrictions imposed are not disproportionate with regard to these objectives.
However, this doctrine was modified soon afterwards by the ECJ in the aforementioned Gambelli Decision, according to which the moral, religious or cultural characteristics of states as well as the negative consequences for individuals and society that, from a moral and financial point of view, could result from gambling and betting, may justify the retention by the national authorities of the power to restrict this type of activities (4), but that in all cases these restrictions must be fully justified and must be proportionate.
Therefore, regarding the frequent monopolistic regulation of gambling by European states (which, it should not be forgotten, is due to both historic and social policy causes), the ECJ has declared that, as in other areas of Law, the gambling rights of each State (and consequently, rights related to sports betting) must respect the principles of free circulation of people and services that the EC Treaty proclaims in its articles 43 and 49 and that any restriction of these principles must be fully justified.
This is why perhaps, lege ferenda, it is the best time to analyse the legal regime for sports betting in Spain in order to look at where we have come from, where we are and where we are going.
II.- History of Sports Betting in Spain
Apart from games of chance, the history of sports betting in Spain is linked to the appearance of a game known as "La Quiniela" (The Pools), which has been played in this country since the second decade of the 20th Century and which can be defined (currently) as a mutual bet in which the betters make predictions about the results of 15 football games that appear in competitions authorised by the Royal Spanish Football Federation or other national or international institutions (normally 10 teams from the 1st Division and 5 from the 2nd Division), these 15 predictions forming a single bet (combinations of bets can also be made). …