# C_2014142EN.01002401.xml

| 12.5.2014 | EN | Official Journal of the European Union | C 142/24 |
| --- | --- | --- | --- |

12.5.2014

EN

Official Journal of the European Union

C 142/24

---

Request for a preliminary ruling from the Fővárosi Törvényszék (Hungary) lodged on 3 March 2014 — Berlington Hungary Tanácsadó és Szolgáltató Kft. and Others v Magyar Állam

(Case C-98/14)

2014/C 142/33

Language of the case: Hungarian

Referring court

Referring court

Fővárosi Törvényszék

Parties to the main proceedings

Parties to the main proceedings

Applicants: Berlington Hungary Tanácsadó és Szolgáltató Kft., Lixus Szerencsejáték Szervező Kft., Lixus Projekt Szerencsejáték Szervező Kft., Lixus Invest Szerencsejáték Szervező Kft., Megapolis Terminal Szolgáltató Kft.

Applicants:

Defendant: Magyar Állam (Hungarian State)

Defendant:

Questions referred

Questions referred

In connection with the amendments to the Law on games of chance made in 2011 increasing the amount of tax on gambling:

In connection with the amendments to the Law on games of chance made in 2011 increasing the amount of tax on gambling:

| 1. | Is non-discriminatory legislation of a Member State compatible with Article 56 TFEU if, by a single measure and with no transitional period, it introduces a five-fold increase in the previous amount of direct tax, known as gambling tax, to be paid on slot machines operated in amusement arcades and, in addition introduces a tax on gambling at a percentage rate, in such a way that it restricts the activity of operators of games of chance who run amusement arcades? |
| --- | --- |

1.

Is non-discriminatory legislation of a Member State compatible with Article 56 TFEU if, by a single measure and with no transitional period, it introduces a five-fold increase in the previous amount of direct tax, known as gambling tax, to be paid on slot machines operated in amusement arcades and, in addition introduces a tax on gambling at a percentage rate, in such a way that it restricts the activity of operators of games of chance who run amusement arcades?

| 2. | May Article 34 TFEU be interpreted as meaning that its scope covers nondiscriminatory legislation of a Member State which, by a single measure and with no transitional period, introduces a five-fold increase in the previous amount of direct tax, known as gambling tax, to be paid on slot machines operated in amusement arcades and, in addition introduces a tax on gambling at a percentage rate, in such a way that it restricts the importation of slot machines into Hungary from elsewhere in the European Union? |
| --- | --- |

2.

May Article 34 TFEU be interpreted as meaning that its scope covers nondiscriminatory legislation of a Member State which, by a single measure and with no transitional period, introduces a five-fold increase in the previous amount of direct tax, known as gambling tax, to be paid on slot machines operated in amusement arcades and, in addition introduces a tax on gambling at a percentage rate, in such a way that it restricts the importation of slot machines into Hungary from elsewhere in the European Union?

| 3. | If questions 1 and/or 2 are answered in the affirmative, may a Member State rely exclusively on the regularisation of the budgetary position in the context of the application of Articles 36 TFEU, 52(1) TFEU and 61 TFEU or where there are overriding requirements? |
| --- | --- |

3.

If questions 1 and/or 2 are answered in the affirmative, may a Member State rely exclusively on the regularisation of the budgetary position in the context of the application of Articles 36 TFEU, 52(1) TFEU and 61 TFEU or where there are overriding requirements?

| 4. | If questions 1 and/or 2 are answered in the affirmative, having regard to Article 6(3) TFEU, must account be taken of the general principles of law, as regards the restrictions imposed by a Member State and the grant of a period of adjustment to new tax rules? |
| --- | --- |

4.

If questions 1 and/or 2 are answered in the affirmative, having regard to Article 6(3) TFEU, must account be taken of the general principles of law, as regards the restrictions imposed by a Member State and the grant of a period of adjustment to new tax rules?

| 5. | If questions 1 and/or 2 are answered in the affirmative, must the judgment in Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur be interpreted as meaning that infringement of Articles 34 TFEU and/or 56 TFEU may give rise to liability for damages on the part of the Member State on the ground that those provisions — because of their direct effect — confer rights on individuals in the Member States? |
| --- | --- |

5.

If questions 1 and/or 2 are answered in the affirmative, must the judgment in Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur be interpreted as meaning that infringement of Articles 34 TFEU and/or 56 TFEU may give rise to liability for damages on the part of the Member State on the ground that those provisions — because of their direct effect — confer rights on individuals in the Member States?

Brasserie du Pêcheur

| 6. | Can Directive 98/34/EC (1) be interpreted as meaning that a tax provision of a Member State which introduces in a single step a fivefold increase in the amount of a direct tax on gambling which has to be paid in respect of slot machines operated in amusement arcades and, in addition, introduces a tax at a percentage rate constitutes a ‘de facto technical regulation’? |
| --- | --- |

6.

Can Directive 98/34/EC (1) be interpreted as meaning that a tax provision of a Member State which introduces in a single step a fivefold increase in the amount of a direct tax on gambling which has to be paid in respect of slot machines operated in amusement arcades and, in addition, introduces a tax at a percentage rate constitutes a ‘de facto technical regulation’?

1

de facto

| 7. | If question 6 is answered in the affirmative, may individuals of a Member State allege that the Member State has breached Articles 8(1) and/or 9(1) of Directive 98/34/EC, and therefore failed to fulfil its obligations, thereby giving rise to liability for damages; in other words, is that Directive intended to confer rights on individuals? What matters must the national court take into account in order to determine whether the defendant has committed a sufficiently serious breach and what type of claim for damages can such a breach give rise to? |
| --- | --- |

7.

If question 6 is answered in the affirmative, may individuals of a Member State allege that the Member State has breached Articles 8(1) and/or 9(1) of Directive 98/34/EC, and therefore failed to fulfil its obligations, thereby giving rise to liability for damages; in other words, is that Directive intended to confer rights on individuals? What matters must the national court take into account in order to determine whether the defendant has committed a sufficiently serious breach and what type of claim for damages can such a breach give rise to?

In connection with the amendment of the Law on games of chances made in 2012 which prohibited the operation of slot machines in amusement arcades (allowing them only in casinos):

In connection with the amendment of the Law on games of chances made in 2012 which prohibited the operation of slot machines in amusement arcades (allowing them only in casinos):

| 1. | Is non-discriminatory legislation of a Member State compatible with Article 56 TFEU if it prohibits with immediate effect the use of slot machines in amusement arcades, without allowing the operators of games of chance affected a transitional or adjustment period or offering them appropriate compensation, and, at the same time, establishes in favour of casinos a monopoly in the operation of slot machines? |
| --- | --- |

1.

Is non-discriminatory legislation of a Member State compatible with Article 56 TFEU if it prohibits with immediate effect the use of slot machines in amusement arcades, without allowing the operators of games of chance affected a transitional or adjustment period or offering them appropriate compensation, and, at the same time, establishes in favour of casinos a monopoly in the operation of slot machines?

| 2. | Can Article 34 TFEU be interpreted as meaning that it must also be decisive and applicable in the event that a Member State adopts non-discriminatory legislation which, although it does not directly prohibit the purchase of slot machines from elsewhere in the European Union, restricts or prohibits the effective use and operation of such machines in the organisation of games of chance, without allowing the operators of games of chance affected who carry out that activity a transitional or adjustment period or any compensation? |
| --- | --- |

2.

Can Article 34 TFEU be interpreted as meaning that it must also be decisive and applicable in the event that a Member State adopts non-discriminatory legislation which, although it does not directly prohibit the purchase of slot machines from elsewhere in the European Union, restricts or prohibits the effective use and operation of such machines in the organisation of games of chance, without allowing the operators of games of chance affected who carry out that activity a transitional or adjustment period or any compensation?

| 3. | If questions 1 and 2 are answered in the affirmative, what criteria must the national court take into account to determine whether the restriction was necessary, appropriate and proportionate in the context of the application of Articles 36 TFEU, 52(1) TFEU and 61 TFEU or where there are overriding requirements? |
| --- | --- |

3.

If questions 1 and 2 are answered in the affirmative, what criteria must the national court take into account to determine whether the restriction was necessary, appropriate and proportionate in the context of the application of Articles 36 TFEU, 52(1) TFEU and 61 TFEU or where there are overriding requirements?

| 4. | If questions 1 and/or 2 are answered in the affirmative, having regard to Article 6(3) TFEU, must account be taken of the general principles of law, as regards the prohibitions laid down by a Member State and the grant of a period of adjustment? Must account be taken of fundamental rights — such as the right to property and the prohibition on depriving a person of property without compensation — in connection with the restriction arising in the present case and, if so, in what way? |
| --- | --- |

4.

If questions 1 and/or 2 are answered in the affirmative, having regard to Article 6(3) TFEU, must account be taken of the general principles of law, as regards the prohibitions laid down by a Member State and the grant of a period of adjustment? Must account be taken of fundamental rights — such as the right to property and the prohibition on depriving a person of property without compensation — in connection with the restriction arising in the present case and, if so, in what way?

| 5. | If questions 1 and/or 2 are answered in the affirmative, must the judgment in Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur be interpreted as meaning that infringement of Articles 34 TFEU and/or 56 TFEU may give rise to liability for damages on the part of the Member State on the ground that those provisions — because of their direct effect — confer rights on individuals in the Member States? |
| --- | --- |

5.

If questions 1 and/or 2 are answered in the affirmative, must the judgment in Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur be interpreted as meaning that infringement of Articles 34 TFEU and/or 56 TFEU may give rise to liability for damages on the part of the Member State on the ground that those provisions — because of their direct effect — confer rights on individuals in the Member States?

Brasserie du Pêcheur

| 6. | Can Directive 98/34/EC be interpreted as meaning that a provision of a Member State which, by restricting the use of slot machines to casinos, prohibits their use in amusement arcades constitutes ‘other requirements’? |
| --- | --- |

6.

Can Directive 98/34/EC be interpreted as meaning that a provision of a Member State which, by restricting the use of slot machines to casinos, prohibits their use in amusement arcades constitutes ‘other requirements’?

| 7. | If question 6 is answered in the affirmative, may individuals of a Member State allege that the Member State has breached Articles 8(1) and/or 9(1) of Directive 98/34/EC and therefore failed to fulfil its obligations, thereby giving rise to liability for damages; in other words, is that Directive intended to confer rights on individuals? What matters must the national court take into account in order to determine whether the defendant has committed a sufficiently serious breach and what type of claim for damages can such a breach give rise to? |
| --- | --- |

7.

If question 6 is answered in the affirmative, may individuals of a Member State allege that the Member State has breached Articles 8(1) and/or 9(1) of Directive 98/34/EC and therefore failed to fulfil its obligations, thereby giving rise to liability for damages; in other words, is that Directive intended to confer rights on individuals? What matters must the national court take into account in order to determine whether the defendant has committed a sufficiently serious breach and what type of claim for damages can such a breach give rise to?

| 8. | Is the principle of Community law applicable according to which the Member States are obliged to pay compensation to individuals for damage resulting from breaches of Community law attributable to the Member States also where the Member State has sovereignty in the area which the adopted legislation concerns? In such a case do fundamental rights and the general principles of law derived from the common constitutional traditions of the Member States also serve as a guide? |
| --- | --- |

8.

Is the principle of Community law applicable according to which the Member States are obliged to pay compensation to individuals for damage resulting from breaches of Community law attributable to the Member States also where the Member State has sovereignty in the area which the adopted legislation concerns? In such a case do fundamental rights and the general principles of law derived from the common constitutional traditions of the Member States also serve as a guide?

---

(1)  Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services (OJ 1998 L 204, p. 37).

1

---