The Dutch Ministry of Justice has painstakingly for many long years withheld a letter from the European Commission regarding a secret ban on the Toto monopoly on sports betting.
The reason is that it, “would lead to a one-sided discussion, also in the media, regarding the Dutch gaming policy.” Moreover, it could “affect the position of the Netherlands”, was the answer from the Ministry in response to a request from the Law of Public Administration.
In the letter, held by De Telegraaf newspaper, the Netherlands has had its knuckles rapped severely. After years of talking back and forth, the European Commission (EC) dealt its binding opinion, concluding that the government is in breach of the European Convention. Thus, the football monopoly the Football-Toto (the Lotto) has in the Netherlands is illegal. The EC can now enforce this finding before the European Court of Justice.
Even First and Second House Representatives never got to see the complete sensitive piece, but were only briefly allowed to see extracts. According to Hirsch Ballin, the correspondence had to, at the request of the EC, remain confidential. A spokesman for the EC, however, says that it is always up to the Member States to decide if such reports, containing "reasoned opinions" should be brought in to the public domain.
Lawyers argue that making the report public would have had much greater consequences. With the advice contained in the letter, all the measures the Justice Department is currently taking against international providers of sports betting would probably die before the courts. "It is very worrying that people would have been faced with a law where an infringement may have meant fines being issued, while it was public knowledge that the law was contrary to European law,” commented international criminal law professor, Geert-Jan Knoops.
However, Justin Franssen a gaming lawyer who advised the Dutch government in 2003 on Holland Casino and performed numerous lawsuits for gambling providers finds the secrecy shocking. "Unlike the Minister would have us believe, there is only one solution: to bring the illegal monopoly on sports betting in line with European law." The "reasoned opinion" is the final piece of the EC puzzle in solving this dispute. "It is not a request for information. The Netherlands has acted contrary to the European Convention," said the EC spokesman. The Ministry suggests that there should still be dialogue and Hirsch Ballin maintains that the Dutch legislation on gambling can be justified.