# C_2017022EN.01001501.xml

| 23.1.2017 | EN | Official Journal of the European Union | C 22/15 |
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23.1.2017

EN

Official Journal of the European Union

C 22/15

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Request for a preliminary ruling from the Amtsgericht Nürtingen (Germany) lodged on 10 November 2016 — Criminal proceedings against Faiz Rasool

(Case C-568/16)

(2017/C 022/21)

Language of the case: German

Referring court

Referring court

Amtsgericht Nürtingen

Parties to the main proceedings

Parties to the main proceedings

Faiz Rasool, Rasool Entertainment GmbH, Staatsanwaltschaft Stuttgart

Questions referred

Questions referred

| 1. | Must point (o) of Article 3 of the Directive on payment services in the internal market (Directive 2007/64/EC) (1) be interpreted as meaning that the possibility to withdraw cash in an officially authorised gaming arcade by means of a debit card and PIN from a cash terminal, also functioning as a change machine, where the bank- and account-related processing is carried out by an external service provider (‘network provider’) and the cash is dispensed to the customer only when the network provider, after checking whether funds are available, sends an authorisation code to the terminal, whereas the arcade operator merely loads the multi-functional change machine with cash and receives a credit from the bank whose customer withdrew cash corresponding to the amount withdrawn, constitutes an activity within the meaning of point (o) of Article 3 of the Directive and is consequently not subject to authorisation? |
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1.

Must point (o) of Article 3 of the Directive on payment services in the internal market (Directive 2007/64/EC) (1) be interpreted as meaning that the possibility to withdraw cash in an officially authorised gaming arcade by means of a debit card and PIN from a cash terminal, also functioning as a change machine, where the bank- and account-related processing is carried out by an external service provider (‘network provider’) and the cash is dispensed to the customer only when the network provider, after checking whether funds are available, sends an authorisation code to the terminal, whereas the arcade operator merely loads the multi-functional change machine with cash and receives a credit from the bank whose customer withdrew cash corresponding to the amount withdrawn, constitutes an activity within the meaning of point (o) of Article 3 of the Directive and is consequently not subject to authorisation?

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| 2. | If the activity described in Question 1 is not considered to constitute an activity within the meaning of point (o) of Article 3:
  Must point (e) of Article 3 of Directive 2007/64/EC be interpreted as meaning that the possibility described in Question 1 to withdraw cash using a PIN constitutes an activity within the meaning of this provision if, together with the cash withdrawal, a voucher to the value of EUR 20 is generated for encashment with the arcade supervisor in order to have the supervisor feed coins into a gaming machine? |
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2.

If the activity described in Question 1 is not considered to constitute an activity within the meaning of point (o) of Article 3:

Must point (e) of Article 3 of Directive 2007/64/EC be interpreted as meaning that the possibility described in Question 1 to withdraw cash using a PIN constitutes an activity within the meaning of this provision if, together with the cash withdrawal, a voucher to the value of EUR 20 is generated for encashment with the arcade supervisor in order to have the supervisor feed coins into a gaming machine?

If the activity described in Questions 1 and 2 is not considered to constitute an activity excluded from the scope of the Directive on the basis of points (o) and/or (e) of Article 3:

| 3a. | Must paragraph 2 in the Annex to Directive 2007/64/EC be interpreted as meaning that the activity of arcade operator described in Questions 1 and 2 constitutes a payment service subject to authorisation notwithstanding the fact that the arcade operator does not operate any account of the customer withdrawing cash? |
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3a.

Must paragraph 2 in the Annex to Directive 2007/64/EC be interpreted as meaning that the activity of arcade operator described in Questions 1 and 2 constitutes a payment service subject to authorisation notwithstanding the fact that the arcade operator does not operate any account of the customer withdrawing cash?

| 3b. | Must point (3) of Article 4 of Directive 2007/64/EC be interpreted as meaning that the activity of arcade operator described in Questions 1 and 2 constitutes a payment service within the meaning of that provision where the arcade operator provides this service free of charge? |
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3b.

Must point (3) of Article 4 of Directive 2007/64/EC be interpreted as meaning that the activity of arcade operator described in Questions 1 and 2 constitutes a payment service within the meaning of that provision where the arcade operator provides this service free of charge?

If the Court considers the activity outlined to constitute a payment service subject to authorisation:

| 4. | Must EU law and the Directive on payment services in the internal market be interpreted as precluding criminal penalties for the operation of a cash terminal in the circumstances of the present case if cash terminals of the same kind were or are operated without authorisation in numerous officially authorised gaming arcades and in officially authorised and, in part, publicly operated casinos and the competent authorisation and supervisory authority does not raise any objections? |
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4.

Must EU law and the Directive on payment services in the internal market be interpreted as precluding criminal penalties for the operation of a cash terminal in the circumstances of the present case if cash terminals of the same kind were or are operated without authorisation in numerous officially authorised gaming arcades and in officially authorised and, in part, publicly operated casinos and the competent authorisation and supervisory authority does not raise any objections?

If the answer to Question 4 is also in the negative:

| 5. | Must the Directive on payment services and the EU-law principles of legal certainty and legal clarity and Article 17 of the Charter be interpreted as precluding, in the circumstances of the present case, an administrative and judicial practice ordering such amounts to be surrendered to the public purse (‘confiscation’) as have been received by the operator of the gaming arcade — as a result of a service effected by the network provider — from bank customers, who by means of debit card and PIN withdrew the cash loaded by the operator and/or the vouchers to play the gaming machines notwithstanding the fact that all credits correspond only to those amounts received by customers from the cash machines in cash and vouchers to play the gaming machines? |
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5.

Must the Directive on payment services and the EU-law principles of legal certainty and legal clarity and Article 17 of the Charter be interpreted as precluding, in the circumstances of the present case, an administrative and judicial practice ordering such amounts to be surrendered to the public purse (‘confiscation’) as have been received by the operator of the gaming arcade — as a result of a service effected by the network provider — from bank customers, who by means of debit card and PIN withdrew the cash loaded by the operator and/or the vouchers to play the gaming machines notwithstanding the fact that all credits correspond only to those amounts received by customers from the cash machines in cash and vouchers to play the gaming machines?

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(1)  Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market, amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC (OJ 2007 L 319, p. 1).

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