# C_2005143EN.01000902.xml

| 11.6.2005 | EN | Official Journal of the European Union | C 143/9 |
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11.6.2005

EN

Official Journal of the European Union

C 143/9

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JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(Second Chamber)

of 21 April 2005

in Case C-267/03 Reference for a preliminary ruling from the Högsta domstolen Lars Erik Staffan Lindberg (1)

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(Directive 83/189/EEC - Notification procedure in the field of technical standards and regulations - Obligation to notify draft technical regulations - National legislation on gaming and lotteries - Gaming machines - Prohibition on the organisation of games on gaming machines which do not pay out winnings directly - Machines of the ‘wheel of fortune’ type - Definition of 'technical regulation')

(2005/C 143/10)

Language of the case: Swedish

In Case C-267/03: reference for a preliminary ruling under Article 234 EC from the Högsta domstolen (Sweden), made by decision of 10 April 2003, received at the Court on 18 June 2003, in the criminal proceedings against Lars Erik Staffan Lindberg — the Court: (Second Chamber) composed of C.W.A. Timmermans (Rapporteur), President of the Chamber, C. Gulmann, R. Schintgen, G. Arestis and J. Klučka, Judges; F.G. Jacobs, Advocate General, H. von Holstein, Deputy Registrar, gave a judgment on 21 April 2005, the operative part of which is as follows:

| 1. | National provisions such as the Law on Lotteries (lotterilagen (1994:1000)), in the version resulting from the law amending the Law on Lotteries (lag om ändring i lotterilagen (1996:1168)), which entail a prohibition on the organisation of games of chance using certain gaming machines are liable to constitute a technical regulation within the meaning of Article 1(9) of Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations, as amended by Directive 94/10/EC of the European Parliament and the Council of 23 March 1994, where it is established that the scope of the prohibition at issue leaves no room for any use which can reasonably be expected of the product concerned other than a purely marginal one or, if that is not the case, where it is established that that prohibition may significantly influence the composition or nature of the product or its marketing. |
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1.

National provisions such as the Law on Lotteries (lotterilagen (1994:1000)), in the version resulting from the law amending the Law on Lotteries (lag om ändring i lotterilagen (1996:1168)), which entail a prohibition on the organisation of games of chance using certain gaming machines are liable to constitute a technical regulation within the meaning of Article 1(9) of Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations, as amended by Directive 94/10/EC of the European Parliament and the Council of 23 March 1994, where it is established that the scope of the prohibition at issue leaves no room for any use which can reasonably be expected of the product concerned other than a purely marginal one or, if that is not the case, where it is established that that prohibition may significantly influence the composition or nature of the product or its marketing.

| 2. | Redefining in national legislation a service connected with the design of a product, in particular that of operating certain gaming machines, as the law (1996:1168) amending the Law on Lotteries did, can constitute a technical regulation which must be notified under Directive 83/189, as amended by Directive 94/10, if that new legislation does not merely reproduce or replace, without adding new or additional specifications, existing technical regulations which, if adopted after the entry into force of Directive 83/189 in the Member State concerned, have been duly notified to the Commission of the European Communities. |
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2.

Redefining in national legislation a service connected with the design of a product, in particular that of operating certain gaming machines, as the law (1996:1168) amending the Law on Lotteries did, can constitute a technical regulation which must be notified under Directive 83/189, as amended by Directive 94/10, if that new legislation does not merely reproduce or replace, without adding new or additional specifications, existing technical regulations which, if adopted after the entry into force of Directive 83/189 in the Member State concerned, have been duly notified to the Commission of the European Communities.

| 3. | The replacement of a licence requirement by a prohibition in national law may be a significant factor with regard to the obligation to notify provided for by Directive 83/189, as amended by Directive 94/10.
  The greater or lesser value of the product or service or the size of the market for the product or service are factors which are not relevant as regards the obligation to notify provided for by that directive. |
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3.

The replacement of a licence requirement by a prohibition in national law may be a significant factor with regard to the obligation to notify provided for by Directive 83/189, as amended by Directive 94/10.

The greater or lesser value of the product or service or the size of the market for the product or service are factors which are not relevant as regards the obligation to notify provided for by that directive.

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(1)  OJ C 213 of 06.09.2003.

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