Betting, Monopolies and the Protection of Public Order

Abstract

This chapter compares the approach of the Court of Justice of the EU to the proportionality of advertising restrictions with the approach of the US Supreme Court. While the US Supreme Court has tended to adopt a robust approach to the proportionality assessment of advertising restrictions, the Court of Justice of the EU has left a particularly broad margin of discretion to the EU legislature and has proven rather reluctant to engage thoroughly with existing evidence supporting (or not) such restrictions, in particular when public health considerations have been at stake. This chapter argues that neither court has struck a suitable balance between, on the one hand, the need to ensure that public authorities adequately discharge the burden of proof resting on them to justify restrictions on the freedom of commercial operators to advertise their goods and services and, on the other hand, the need to ensure that courts do not substitute their assessment for that of the legislature in exercising their powers of judicial review.