CJEU setback for Gibraltar in place of consumption tax case


As explained in David Clifton’s October 2015 article for iGaming Business “The POC tax JR judgment analysed and explained”, the High Court asked the Court of Justice of the European Union (“CJEU”) to determine whether, for the purposes of the freedom to provide services, Gibraltar and the UK are to be treated as if they were part of a single Member State or whether, with respect to the freedom to provide services, Gibraltar has the constitutional status of a separate territory to the UK so that the provision of services between the two is to be treated as intra-EU trade.

In his Opinion published yesterday, 19 January 2017, Advocate General Szpunar concluded that the UK and Gibraltar are a single Member State for the above purposes. Both the AG’s Opinion and the CJEU press release in relation to the Opinion can be downloaded below.

Whilst the Opinion is not binding on the CJEU, we consider it likely that its Judges, who are now beginning their deliberations in the case, will reach a similar conclusion. However, that will not decide the dispute of itself. It will then be a matter for the High Court in the UK to dispose of the case in accordance with the CJEU’s interpretation.

Peter Howitt, the CEO of the Gibraltar Betting & Gaming Association, has been quoted as saying: “We are naturally disappointed with the opinion of the Advocate General. We continue to believe that the gambling duty applied by the UK government to operators out of the jurisdiction, in circumstances where the customer may not be in the UK when they gamble or even a UK resident, is a disproportionate restriction on operators.  We look forward to receiving the CJEU’s judgment on the issues.

Download article PDF: CJEU Press Release 04:17