# C_2016106EN.01000501.xml

| 21.3.2016 | EN | Official Journal of the European Union | C 106/5 |
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21.3.2016

EN

Official Journal of the European Union

C 106/5

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Judgment of the Court (First Chamber) of 4 February 2016 (request for a preliminary ruling from the Amtsgericht Sonthofen — Germany) — Criminal proceedings against Sebat Ince

(Case C-336/14) (1)

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((Freedom to provide services - Article 56 TFEU - Games of chance - Public monopoly on betting on sporting competitions - Prior administrative authorisation - Exclusion of private operators - Collection of bets on behalf of an operator established in another Member State - Criminal penalties - National provision contrary to EU law - Exclusion - Transition to a system providing for the grant of a limited number of licences to private operators - Principles of transparency and impartiality - Directive 98/34/EC - Article 8 - Technical regulations - Rules on services - Obligation to notify))

(2016/C 106/05)

Language of the case: German

Referring court

Referring court

Amtsgericht Sonthofen

Party in the main proceedings

Party in the main proceedings

Sebat Ince

Operative part of the judgment

Operative part of the judgment

| 1. | Article 56 TFEU must be interpreted as precluding the criminal prosecution authorities of a Member State from penalising the unauthorised intermediation of sporting bets by a private operator on behalf of another private operator lacking an authorisation to organise sporting bets in that Member State, but holding a licence in another Member State, in the case where the obligation to hold an authorisation to organise or intermediate sporting bets forms part of a public monopoly regime deemed by the national courts to be contrary to EU law. Article 56 TFEU precludes such a penalty, even where a private operator may, in theory, obtain an authorisation to organise or intermediate sporting bets, to the extent that knowledge of the procedure for granting such an authorisation is not guaranteed and the public monopoly regime with regard to sporting bets, deemed by the national courts to be contrary to EU law, has persisted despite the adoption of such a procedure. |
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1.

Article 56 TFEU must be interpreted as precluding the criminal prosecution authorities of a Member State from penalising the unauthorised intermediation of sporting bets by a private operator on behalf of another private operator lacking an authorisation to organise sporting bets in that Member State, but holding a licence in another Member State, in the case where the obligation to hold an authorisation to organise or intermediate sporting bets forms part of a public monopoly regime deemed by the national courts to be contrary to EU law. Article 56 TFEU precludes such a penalty, even where a private operator may, in theory, obtain an authorisation to organise or intermediate sporting bets, to the extent that knowledge of the procedure for granting such an authorisation is not guaranteed and the public monopoly regime with regard to sporting bets, deemed by the national courts to be contrary to EU law, has persisted despite the adoption of such a procedure.

| 2. | Article 8(1) of 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, as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998, must be interpreted as meaning that the draft version of regional legislation which maintains in force, throughout the region concerned, the provisions of legislation common to the various regions of a Member State that has expired is subject to the notification obligation laid down in that Article 8(1), in so far as that draft version contains technical regulations within the meaning of Article 1 of the directive, with the result that failure to comply with that obligation renders those regulations unenforceable against an individual in the context of criminal proceedings. Such an obligation is not called into question by the fact that that common legislation had previously been notified to the Commission at the draft stage pursuant to Article 8(1) of Directive 98/34 and expressly provided for the possibility of an extension, which possibility, however, was not exercised. |
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2.

Article 8(1) of 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, as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998, must be interpreted as meaning that the draft version of regional legislation which maintains in force, throughout the region concerned, the provisions of legislation common to the various regions of a Member State that has expired is subject to the notification obligation laid down in that Article 8(1), in so far as that draft version contains technical regulations within the meaning of Article 1 of the directive, with the result that failure to comply with that obligation renders those regulations unenforceable against an individual in the context of criminal proceedings. Such an obligation is not called into question by the fact that that common legislation had previously been notified to the Commission at the draft stage pursuant to Article 8(1) of Directive 98/34 and expressly provided for the possibility of an extension, which possibility, however, was not exercised.

| 3. | Article 56 TFEU must be interpreted as precluding a Member State from penalising the unauthorised intermediation of sporting bets on its territory on behalf of an economic operator holding a licence to organise sporting bets in another Member State:






  — | where the issue of an authorisation to organise sporting bets is subject to the obtaining of a licence by that operator in accordance with a procedure for the award of licences, such as that at issue in the main proceedings, if the referring court finds that that procedure does not observe the principles of equal treatment and non-discrimination on grounds of nationality and the consequent obligation of transparency, and |
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3.

Article 56 TFEU must be interpreted as precluding a Member State from penalising the unauthorised intermediation of sporting bets on its territory on behalf of an economic operator holding a licence to organise sporting bets in another Member State:

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where the issue of an authorisation to organise sporting bets is subject to the obtaining of a licence by that operator in accordance with a procedure for the award of licences, such as that at issue in the main proceedings, if the referring court finds that that procedure does not observe the principles of equal treatment and non-discrimination on grounds of nationality and the consequent obligation of transparency, and

| — | to the extent that, despite the entry into force of a national provision permitting the grant of licences to private operators, application of the provisions establishing a public monopoly regime with regard to the organisation and intermediation of sporting bets, deemed by the national courts to be contrary to EU law, has persisted in practice. |
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to the extent that, despite the entry into force of a national provision permitting the grant of licences to private operators, application of the provisions establishing a public monopoly regime with regard to the organisation and intermediation of sporting bets, deemed by the national courts to be contrary to EU law, has persisted in practice.

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(1)  OJ C 339, 29.9.2014.

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