Sports Betting in the Jurisprudence of the European Court of Justice: A Study into the Application of the Stare Decisis Principle, Or: The Application of the "Reversal Method" of Content Analysis and the Essence of the ECJ Case Law on Sports Betting
Siekmann, Robert C. R., The International Sports Law Journal
Kaburakis' article on "ECJ Jurisprudence and Recent Developments in EU Sports Betting" (1) so far is the only substantial one on the matter. (2) From the article it becomes clear that to determine the evolution of the jurisprudence of the European Court of Justice (ECJ) on "sports betting" is a complex task. In this contribution I am presenting an innovative, although time-consuming method of research the purpose of which is to facilitate that effort considerably. The method starts from the fact that the ECJ jurisprudence is based on the stare decisis principle which is expressly applied by the Court when it makes references to the sources used, that is its previous decisions and the relevant paragraphs therein (this of couse does not exclude the possibility that phrasing in previous decisions are used literally later on without an express reference to the paragraphs concerned). Kaburakis in fact uses the traditional method of analysis by showing how the jurisprudence evolved from the first "sports betting" case up to and including the at the time of his writing most recent one. According to the alternative method it is preferred to reverse the chronological order of study, starting from the most recent case and going back to the first one. This operational method is similar to the approach taken by the Court when drafting a new decision. The new method is supposed to be a more objective, neutral, non-arbitrary and non-impressionist combination of close reading and feed-back; it might be called the "reversal" or "retrospective" method. This method allows us to determine which paragraphs in previous decisions are most important (or relatively important). It is possible that express references to these paragraphs occur more than once in their successors. So, when we closely read the text of later decisions, they may give us feed-back about the relative importance of their predecessors. If there is no reference to a "sports betting" case at all, it must logically be concluded that this is a (very) minor case and in any case not a landmark one. Of course, in this perspective the relative importance of the one most recent decision cannot be determined, since there are not any succeeding references made to it yet. It is not only possible to determine what the relative importance of paragraphs in preceding "sports betting" decisions is, but also to determine what the influence of previous non-"sports betting" decisions, of a gambling type or not has been (see below for definitions of the concepts of "gambling" and "sports betting"). Finally, it should be observed that in principle in non-betting/gambling and non-sports betting cases express reference may be made to sports betting/gambling cases. This would illustrate the influence of "sports betting" jurisprudence the other way round.
Of course, in using the "reversal" method of analysis, one should also take into account if and to what extent the factual backgrounds of the cases differ from each other, and whether possibly the applicable law has changed in the meantime (the latter is not the case from a EU perspective, because EU "(sports) betting" law Is ECJ case law). Of course, other aspects are a changing membership of the Court as well as Court members changing their views over time, whether or not under the impact of changing views on "sports betting" in the society at large, in particular regarding state monopolies and the position of state-run operators. In this respect, the Advocate-General's Opinions may be of major importance, and it is to be seen whether express reference is made to them in the ECJ's decisions and rulings.
In this contribution, the "reversal" method will be systematically and consistently tested in practice. While using the method it will be refined in applying it, if necessary. "Rules" for the use of the method will be developed in the process of its application. By using this method, it should be possible to determine the essentials of the case-law, its core content. …