In its efforts to step up the fight against illegal gambling, particularly the machines installed in public places (cafés, pubs and bars), the government intends to combine public safety with social protection. It is targeting in particular the illegal gaming machines installed in cafés and pubs. According to the explanatory memorandum, these activities are not merely a gambling issue, but a conduit for money laundering and a driver of organised crime.

And to be more effective in the fight against the organised crime groups that run these terminals, the plan aims to strengthen the police’s toolkit by allowing for advanced investigative methods such as undercover operations, surveillance and online investigations under a false identity.

The bill also highlights the devastating socio-economic consequences of gambling for vulnerable individuals. Finally, the legislator intends to maintain and clarify the de facto monopoly of the National Lottery, which is regarded as a means of channelling demand towards a legal and regulated market.

Legal ambiguities

Despite these laudable objectives, the Council of State has highlighted technical shortcomings that undermine the scope of the legislation. Whilst maintaining the principle of a general ban, the draft seeks to establish a de facto monopoly for the National Lottery, which raises questions for the institution regarding compliance with European legislation on the freedom to provide services. It points out that restrictions on the free movement of services must be proportionate and consistent with the objectives of public health and public order.

Still on the subject of the National Lottery, the institution highlights a paradox: whilst the fight against money laundering is presented as a central aim of the project, the Council notes that the National Lottery currently appears to be excluded from the scope of the 2004 Anti-Money Laundering Act. This legal ambiguity is deemed to be at odds with the stated intentions.

The second criticism concerns the very definition of games of chance set out in the draft, which includes games that rely, at least in part, on the players’ physical or intellectual skill or expertise. The Council of State considers this definition to be too broad, to the extent that it could theoretically ban games of skill such as billiards or darts, which does not correspond to the drafters’ original intention. The Council recommends amending the text to clarify that only games of chance are covered. There are also ambiguities regarding the venues concerned: the Council recommends using only the term ‘venues accessible to the public’.

Third criticism: the proposal is presented merely as a ‘first step’ towards comprehensive reform. The Council questions the appropriateness of this approach, which undermines overall coherence and creates legal uncertainty.

Formal challenges on the grounds of unconstitutionality

In addition to these comments, the Council of State has raised several formal objections on the grounds of unconstitutionality. A formal objection is the strongest criticism the Council of State can make. Until such an objection is resolved, the Council may refuse to allow the bill to proceed to a second constitutional vote.

The first objection concerns the legality of the penalties. Certain offences are deemed too vague, which contravenes the Constitution. There are also ambiguities regarding earnings at funfairs. The bill refers to winnings of ‘minor value’ without setting a specific financial limit, which is contrary to the Constitution.

The bill provides for the compulsory confiscation of property (such as machinery) even in the event of an acquittal or if the owner is not the convicted person. The Council considers this measure to be manifestly disproportionate to the right to property.

Finally, several articles are deemed ‘superfluous’, as they repeat provisions already contained in the Code of Criminal Procedure or create offences that duplicate existing ones, particularly in the case of breaches of prohibition or closure orders. Given the risk of legal confusion this creates. The Council of State calls for the removal of “these unnecessary duplications”.

Whilst the Council of State agrees with the need to combat illegal gambling, it has decided to reserve its position on the exemption from the second constitutional vote. The government will therefore have to revise its proposal to bring its security objectives into line with the principles of precision and proportionality under Luxembourg law.