Council of State Upholds the Dutch Retail Monopolies and Overturns JVH's Win

The Administrative Jurisdiction Division ruled on 16 September that the single-licence system for instant lotteries, retail sports betting and the lotto is a proportionate restriction on the free movement of services, that the East Brabant court used evidence it was not allowed to use, and that JVH's separate attack on Lotto BV's licence came too late. A second ruling the same day kept the charity lotteries at 69 draws a year.

• The Council of State's Administrative Jurisdiction Division allowed the appeals of the Kansspelautoriteit and Lotto BV on 16 September (ECLI:NL:RVS:2026:5496) and set aside the East Brabant district court's judgment of 29 February 2024, which had found the single-licence system for the three land-based games disproportionate
• The Division held that the district court "wrongly ruled" the restriction disproportionate, that the dual system (a monopoly for the three retail games, an open market online) is horizontally consistent and coherent, and that the KSA "was entitled to take the position" that one licence is necessary
• It also found the district court had relied on facts from after the KSA's decisions of 27 September 2022, including a ministerial letter of 1 June 2023 and the spring 2023 online monitoring report, which it was not permitted to do; later developments "can be raised when a new licence application is assessed"
• JVH's remaining argument, that the direct award of the licences to Lotto BV on 23 November 2021 was unlawful, failed because JVH was a competitor with standing to appeal that award and did not do so in time, so it became final
• In a second ruling the same day (ECLI:NL:RVS:2026:5531) the Division dismissed the Nationale Postcode Loterij and VriendenLoterij's appeal against the 69-draws-a-year cap on their licences; they had asked for the cap to be scrapped or raised to 379
• The KSA renewed Lotto BV's three exclusive licences to 2031 on Monday, saying it would rather have waited for this judgment

What the District Court Got Wrong

The Dutch Gambling Act (Wok) allows only one licensee for each of the instant lottery, land-based sports betting and the lotto. JVH Venture II and IV, part of the slot-hall operator JVH Gaming and Entertainment, applied for all three on 28 December 2021, five weeks after the KSA had granted them to Lotto BV for 2022 to 2026. The KSA refused on 4 January 2022 because the licences were already taken, and confirmed the refusal on 27 September 2022. JVH argued that since the Remote Gambling Act opened online gambling to any licensed operator in October 2021, the retail monopolies had become an unjustified restriction on the free movement of services under Article 56 of the Treaty on the Functioning of the European Union.

The East Brabant district court agreed in February 2024. It found the Dutch policy was no longer "horizontally consistent" and that the KSA had not shown the single-licence system was still necessary. The Division's interim judge suspended that judgment in April 2024 while the KSA and Lotto BV appealed. The appeal was heard on 9 December 2025 before a three-member panel chaired by B.P.M. van Ravels.

The Division took the district court apart on procedure first. Under the Court of Justice's dynamic proportionality test, national judges must look at how circumstances evolve after a rule is adopted, but under Dutch administrative law that assessment stops at the date of the decision under review. The district court had drawn on a letter from the minister for legal protection of 1 June 2023 and on the spring 2023 online gambling monitoring report, both of which post-dated the September 2022 decisions. "The KSA and Lotto correctly argue that the district court should not have taken those circumstances into account," the ruling says (quotations here are translated from the Dutch).

On substance, the Division accepted the KSA's argument that the district court had compared the three retail games with online gambling in general, rather than each game with its online equivalent, and had leaned too heavily on generic features shared by every gambling product. Applying its own 2021 case law, it found the dual system both consistent and coherent as of September 2022. On necessity, it said member states have a sufficient margin to decide that a monopoly under close state supervision is the effective way to contain gambling harm, and that the KSA had substantiated why: a market with several providers would compete on recruitment and advertising, more people would play and play more, gambling would be further normalised, and the online safeguards (the CRUKS self-exclusion register, the control database, deposit limits) are difficult or impossible to apply to a nationwide retail network. "The Division does not consider this implausible," it said of each point.

The Charity Lotteries Lose Too

The second judgment involved the Nationale Postcode Loterij and the VriendenLoterij, whose licences for 2022 to 2026 cap each of them at 69 draws a year. They wanted the condition removed or raised to 379, arguing that online operators face no limit on the number of moments at which winners are determined and that Lotto BV, offering a comparable low-risk game, may hold more than 600. The Amsterdam district court dismissed their case in August 2024.

The Division went further than the lower court on one point in the lotteries' favour: because a player with a foreign address can take part as long as they hold a Dutch bank account, the situation is not purely internal and EU law does apply. It made no difference. The Division held that the cap is consistent with the distinction it drew between lottos and charity lotteries in 2021, that the absence of a limit online is justified by the need to channel an existing demand away from illegal sites, and that the lotteries "have not explained how an expansion of their offer would contribute to the objectives of gambling policy". An expert report filed shortly before the ten-day deadline for the hearing was excluded as a breach of due process.

The Monopoly Survives, but on 2022 Facts

The Division was explicit that it judged the single-licence system as it stood on 27 September 2022, and that "relevant developments" since then belong in a fresh application. That leaves a door open that the KSA will not enjoy. JVH, or anyone else, can apply again and force the regulator to defend the monopoly against the 2026 online market, with the regulator's own chairman on the record that half of every euro now goes to illegal sites. The Division has signalled how it will read that evidence, but it has not decided it.

The KSA's Renewal Was the Right Call Two Days Early

On Monday the regulator renewed Lotto BV's licences to 2031 with the judgment still pending and said it would rather have waited. It got its answer two days later, and the answer makes the revocation clause it wrote into the renewal academic. What is left is a Lotto BV monopoly whose legal basis has now been confirmed twice by the highest administrative court, in 2021 and 2026, and a JVH that has lost on every ground.

A Dutch Ruling With a European Audience

Every monopoly regulator in Europe reads Dutch case law on horizontal consistency, because the Netherlands is the market that opened online and kept retail closed. The district court's 2024 judgment was the first to say that combination had become untenable. The Division has now said it is tenable, provided the regulator can explain why the online tools do not transfer to a retail network. That is the argument Norway's Norsk Tipping monopoly rests on, and it now has a 2026 Dutch judgment to cite for it.

The single licence stands. The next fight will be about what has happened since 2022, not what happened before it.