The Autorité française de régulation des jeux en ligne (ARJEL -The French Online Gaming Regulatory Authority) notifies the European Commission a ex post method for verification of changes of gambling software

© thejournalofregulation

The question of ex-ante and ex-post is recurring issue in Regulation law. Indeed, it is often said that it is the main feature of the regulation is to be ex-ante, including through regulation, while Competition law is ex-post because it is activated by behaviours.

But the ex-ante supervision is not always appropriate in particular situations, because of the rapidly evolving technology: here, for instance the software that must be quickly and often change.

However, the Regulatory authority can obviously only conclude texts that software changes justifies. As a result, the ex-ante procedure require long timeframes to be implemented, which is therefore very harmful to the fluidity of Economic activities. In fact, a perspective of modification of software requiring the operator to request approval to the Regulatory Authority before its implementation.

To such burdens and economic inefficiency caused by the Regulation law, which cannot nevertheless entirely go to the ex-post supervision, because gambling sector cannot be left to the simple competition, the solution is found here: it is located between the ex- ante and ex-post.

Thus, the operator acts on the market, but notify the other operator. The first movement is no longer the authorisation but the information. The silence of the Regulatory Authority applies validation, allowing the natural economic dynamism in the sector to be developed. 

But the Regulatory authority can then, "endlessly" (the issue of the discretionary or not of such a power can be discussed in law), requiring the operator to return to the ex-ante that is to say the request of approval for the update.

It’s a balanced situation, which takes into account the speed of technological changes but continues to state that the sector is intrinsically regulated.