Explanation of the relevance that the course of Legal Philosophy and Epistemology may have for my research project.

My research topic is online gambling and consumer protection in EU. I am lawyer who strive to practical knowledge. At the first glance, it seems that my research project has no some relations with philosophy. However, I think that some problems could be discussed by use of knowledge gathered at the course. Briefly about my research topic Online gambling service is service with largest annual growth in Europe. Average annual growth is about 15%. It is estimated that there are about 7 million active players in EU. Incomes are measured in billions EUR per year. Doubtless, business is very lucrative. However, in EU about 80% of online gambling service providers are illegal. Why? There are plenty of reasons for that state, but from my point of view two reasons are the most important. First one online gambling service providers very often have their place of establishment in countries which are considered as tax paradise with very liberal licensing procedure (e.g. Isle of Man, Gibraltar, Malta, Antigua, Barbuda). The second reason is European Union fragmented regulation on online gambling service providing. According the principle of subsidiarity regulated by TFEU, Case Law by Court of Justice of European Union (hereinafter CJEU) and some very important EU Directives (which explicitly exclude gambling activities from its scope of regulation), gambling issues should be regulated on national, regional or local level. In another words, Member States are allowed to regulate online gambling in accordance with their own, different public policies (social policy, youth policy, health policy) regardless harmonization of laws in EU. Therefore, from legal point, the service provider established in Italy is illegal in France (under presumption that provider doesnt have France license). Overall situation diminishes consumer (gamblers) protection. In this paper I will focus on the second problem fragmented regulation in EU on online gambling service providing and influence on consumer protection. Exclusive competence of every Member State is to regulate online gambling service individually, results in creation of monopolies over gambling field in most Member States. According to CJEU monopolies are legal (and legitimate), but their purposes must be depicted in protection (and maintaining) of public policies. Therefore, the restrictive regulations must be executed in consistent and systematic manner with very clear purpose again protection of public policies. CJEU decided that monopolies are not legitimate (and legal) if a Member State has intention to use monopoly in order to increase public incomes or to enable private profit to someone or to (discriminatory) favor one gambling service provider over others So, the Case Law exists and jurisprudence of CJEU was made as a consequence of breaching of policies. In addition, European Commission launched major infringement procedure against (almost all) Member States. In general, Member States havent executed own regulations in way which is consistent and systematic (CJEU formulation). In another words, in recent years Member States misuse social function of public policies in order to get some other benefits (mainly to increase public funds using very lucrative business for that purpose).

The main social need in the field of gambling is to protect the gamblers from the gambling problems (gambling problem is generic term for all negative aspects which may occur addiction, fraud, crimes). Therefore implementation of public policies must be focused on that goal. This position is created by CJEU. So, presented problems practically lead us to creation of antiformalisms framework. We have legal pluralism (fragmented regulations in Member States about online gambling), social function of the public policies with most important social need (protection of the players) and active role of CJEU. In addition, we have creative role of the court CJEU and EU Commission which discussed social needs and social function of the public policies. However, it is legitimate to raise the question why we have CJEU and European Commission interventions? From my point of view, the EU is stick in legal positivism. I found some features very important for current EU legal systems massive overproduction of legal acts and diminished role of national courts. In general, the courts decisions are not formal sources (and mandatory sources) of law. Decisions are obligatory for certain case, but for others similar cases they might be useful tool for decision making process. I stay on position that national judges are more or less deductive machines in decision making process. Ok, I wouldnt like to be rigid about this attitude. The judges in the highest judicial instances have creative roles (but again, mandatory of their decisions is polemic). Taking in consideration unification and harmonization of law under the EU Law, the role of CJEU become very important in interpretation of norms and principles (transposed from source of EU Law to national laws). In addition, European Commission and their right to launched infringement procedures against Member States are corrective factors for bad interpretation of laws (or misuse of law). In case of online gambling the current CJEU jurisprudence is composed of about 20 decided cases (soon will be more). Also, European Commission started (and concluded) large number of infringement procedure against Member States. From my point of view, CJEU and EU Commission are independent, external factors which control and correct positive legal systems (of Member States). This is one feature of legal positivism. So, we may say that Member States misuse their public policies and restrictive measures in order to get something which is not public policy goal. However, this attitude is just current fact and shouldnt be considered as an epistemic true. Why? The states change their legislations; some of the Member States have other different legislative approach (Malta and UK fully respect freedom to provide online gambling service as any other service) and situation about some Member States is not clear (the infringement procedures are not closed yet or CJEU still discuss some cases). From above described situation I stay on position that law has to be tool for social engineering. On the other side regulation over this filed is very complex. We should just try to imagine situation when some Italian citizen during his vacation in Mauritius take a bet (in US$) on online gambling service provider established in UK, whose owner is Russian citizen, main computer server is situated in Greece and customer support only available on German language. All these facts could be binding points for determination for jurisdiction of national law in a case of some dispute. Therefore, from point of view

strict approach in regulating the field by positive legal norms which derives from conservative policies are useless in current EU. At the end, final price of ineffective law in this area will be paid in two ways first one, additional development of black (gray) market and second one by constant minimizing of customer (gambler) protection.