Judgment;Summary — ECLI:EU:C:2020:856
Date: 2020-10-22
Language of the case: Portuguese
Court formation: Ninth Chamber
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Portugal

Summary  C-275/19 — 1 
Case C-275/19 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
2 April 2019 
Referring court:  
Supremo Tribunal de Justiça (Portugal) 
Date of the decision to refer:  
21 March 2019 
Appellants and respondents at first instance: 
Internet Opportunity Entertainment Ltd 
Sportingbet PLC 
Other respondents at first instance: 
Sporting Club de Braga 
Sporting Club de Braga — Futebol, SAD 
Respondent on appeal and applicant at first instance: 
Santa Casa da Misericórdia de Lisboa 
  
Subject matter of the main proceedings 
This request for a preliminary ruling re-submits to the Court of Justice three 
(summarised as two) of the six questions considered to be inadmissible by the 
Court in the Order of 19 October 2017 in Case C-166/17. To that end, the 
referring court declares that it has now provided the information which was 
considered to be lacking and which led to that conclusion. 
Subject matter and legal basis of the reference 
Paragraphs 46 to 49 of that order of the Court of Justice are worded as follows: 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-275/19 
 
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‘46 By the eighth and tenth questions, the referring court asks in essence 
whether the technical regulations laid down by the legislation of a Member State, 
such as Decree-Law No 422/89 and Decree-Law No 282/2003, of which that State 
has not notified the Commission, apply to individuals. 
47 In the present case, the order for reference does not reproduce the content of 
the legislation referred to in the eighth and tenth questions referred for a 
preliminary ruling and does not identify the exact provisions which may, 
potentially, constitute technical regulations. Moreover, the referring court has not 
identified the provisions of EU law which it is seeking to have interpreted or the 
relationship between that law and the national legislation at issue in the main 
proceedings. In addition, the questions do not fit within a context with which the 
Court of Justice is broadly familiar. 
48 Given that the Court of Justice does not have the information needed to 
interpret the EU law concerned, it cannot reply to the eighth and tenth questions 
referred for a preliminary ruling. 
49 In those circumstance, it must be concluded that the eighth and tenth 
questions are manifestly inadmissible.’ 
In the light of that reply, the referring court wishes to know whether Article 1(11) 
of Directive 98/34/EC of the European Parliament and of the Council of 22 June 
1998 must be interpreted to the effect that national legislation conferring an 
exclusive right to organise and operate lotteries and mutual betting throughout the 
national territory by any electronic means of communication, in particular the 
internet, is a ‘technical regulation’ within the meaning of that provision. 
Questions referred for a preliminary ruling 
(8) Given that the Portuguese State did not inform the European Commission of 
the technical regulations contained in Decree-Law No 442/89 of 2 December 
1989, should those provisions ‒ more specifically Article 3 (using the wording 
shown) and Article 9 mentioned below ‒ be unenforceable, and can individuals 
rely on that lack of enforceability? 
(9) Given that the Portuguese State did not inform the European Commission of 
the technical regulations contained in Decree-Law No 282/2003 of 8 November 
2003, should those provisions ‒ more specifically Article 2 and Article 3 
mentioned below ‒ be unenforceable as against service providers in Portugal? 
Applicable provisions of EU law 
Directive 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 
SPORTINGBET AND INTERNET OPPORTUNITY ENTERTAINMENT 
 
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standards and regulations and of rules on Information Society services, 
Article 1(11) 
Provisions of national law relied on 
Decree Law No 422/89 of 2 December 1989 (the Gaming Law), Article 3 and 
Articles 6 to 9 (legislative texts attached, with the amendments successively 
introduced up to the date the present action was brought ‒ 6 November 2006) 
Article 3 
Gaming zones 
1 — The operation and playing of games of chance are only permitted in existing 
casinos in permanent or temporary gaming zones created by legislative decree or, 
otherwise, in the exceptional cases provided for in Articles 6 to 8. 
2 — For the purposes of operating and playing games of fortune, there shall be 
gaming zones in the Algarve, Estoril, Figueira da Foz, Funchal, Porto Santo, 
Póvoa de Varzim, Tróia and Vidago-Pedras Salgadas. 
3 — The minimum protective distance against competition between casinos in 
gaming zones shall be determined on a case-by-case basis in the administrative 
decree laying down the conditions for awarding each concession. 
4 — By authorisation from the competent member of the Government, in 
consultation with the Inspecção-Geral de Jogos (Gaming Inspectorate), concession 
holders in the gaming zones may opt to operate bingo halls which comply with the 
regulatory requirements, subject to the same rules applicable to casinos, but 
provided also that those halls are located within the same municipal territory as 
the casinos. 
Amendment to Article 3 introduced by Decree-Law No 10/95 of 19 January 1995: 
Article 3 
... 
1 — The operation and playing of games of chance are only permitted in existing 
casinos in permanent or temporary gaming zones created by legislative decree or, 
otherwise, in the exceptional cases provided for in Articles 6 to 8. 
2 — For the purposes of operating and playing games of fortune, there shall be 
gaming zones in the Azores, the Algarve, Estoril, Figueira da Foz, Funchal, Porto 
Santo, Póvoa de Varzim, Tróia and Vidago-Pedras Salgadas. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-275/19 
 
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3 — The minimum protective distance against competition between casinos in 
gaming zones shall be determined on a case-by-case basis in the administrative 
decree laying down the conditions for awarding each concession. 
4 — By authorisation from the competent member of the Government, in 
consultation with the Gaming Inspectorate, concession holders in the gaming 
zones may opt to operate bingo halls which comply with the regulatory 
requirements, subject to the same rules applicable to casinos, but provided also 
that those halls are located within the same municipal territory as the casinos. 
... 
Article 6 
Operating games on tourist routes and in airports 
1 — The competent member of the Government, in consultation with the Gaming 
Inspectorate and the Direcção-Geral do Turismo (Directorate-General for 
Tourism), may authorise, for a fixed period, the operation and playing of: 
(a) any games of fortune on board ships or aircraft outside the national territory 
operating on major tourist routes; 
(b) games on machines which pay prizes directly in coins or tokens in the transit 
zone of the international departure areas of airports. 
2 — The operation of games referred to in paragraph 1(a) above may only be 
awarded to undertakings which own or charter national ships or aircraft or to 
undertakings holding a concession from the gaming zones with the authorisation 
of the latter, and the authorisation referred to in subparagraph (b) may only be 
awarded to an undertaking holding a concession from the gaming zone whose 
casino is closest to the airport, in a straight line, notwithstanding the provisions of 
Article 3(3). 
3 — The operation and playing of games of fortune authorised in accordance with 
this article shall be subject to the rules laid down for operating and playing games 
in casinos, and the specific conditions which must be adhered to shall be laid 
down by order of the competent member of the Government. 
Amendment to Article 6 introduced by Decree-Law No 10/95 of 19 January 1995: 
Article 6 
Operating games on ships and aircraft 
1 — The member of the Government with responsibility for tourism, in 
consultation with the Gaming Inspectorate and the Directorate General for 
Tourism, may authorise, for a fixed period, the operation and playing of games of 
SPORTINGBET AND INTERNET OPPORTUNITY ENTERTAINMENT 
 
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chance of any kind on board aircraft or ships registered in Portugal when they are 
outside the national territory. 
2 — The operation of games referred to in paragraph 1 above may only be 
awarded to undertakings which own or charter national ships or aircraft or to 
undertakings holding a concession from the gaming zones with the authorisation 
of the latter. 
3 — The operation and playing of games of fortune authorised in accordance with 
this article shall be subject to the rules laid down for operating and playing games 
in casinos, and the specific conditions which must be adhered to shall be laid 
down by order of the competent member of the Government. 
Article 7  
Operating non-banked games and gaming machines outside casinos 
1 — During major tourist events, the competent member of the Government, in 
consultation with the Gaming Inspectorate and the Directorate-General for 
Tourism, may authorise the operation and playing of non-banked games. 
2 — In localities where tourism is the predominant activity, the competent 
member of the Government, in consultation with the Gaming Inspectorate and the 
Directorate-General for Tourism, may authorise the operation and playing of slot 
machines in hotel or ancillary establishments with the features and dimensions 
determined by administrative regulation. 
3 — The authorisations referred to in the preceding paragraphs may only be 
granted to a concession holder from the gaming zone whose casino is closest, in a 
straight line, to the location where the operation is to take place, notwithstanding 
the provisions of Article 3(3). 
4 — The operation and playing of games in accordance with the preceding 
paragraphs shall be subject to the rules laid down for operating and playing games 
in casinos, and the specific conditions which must be adhered to shall be laid 
down by way of an order. 
Article 8 
Bingo games 
Bingo games may also be operated and played in dedicated halls outside the 
territory of the municipalities where the casinos are located and the adjacent 
territories, in accordance with the applicable special legislation. 
CHAPTER II 
The concessions 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-275/19 
 
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Article 9 
Concession rules 
The right to operate games of chance shall be reserved to the State and may be 
exercised only by undertakings which are established as limited liability 
companies and to which the Government has awarded the appropriate concession 
by administrative contract, save for the situations referred to in Article 6(2). 
Decree-Law No 282/2003 of 8 de November 2003, Articles 2 and 3. 
Article 2 
Scope 
The operations referred to in the preceding article shall be undertaken exclusively, 
throughout the national territory, including the radio spectrum, the analogical and 
digital terrestrial Hertzian spectrum, the internet and any other public 
telecommunications networks, by Santa Casa da Misericórdia de Lisboa through 
its Gaming Department, subject to the statutory provisions governing each of the 
games and Decree-Law No 322/91 of 26 August 1991. 
Article 3 
Gaming contract 
1 — The gaming contract shall be concluded directly by the player and the 
Gaming Department of Santa Casa da Misericórdia de Lisboa, whether or not 
through intermediaries.  
2 — A gaming contract is one in which one of the parties, after paying a given 
sum, receives numbers or predictions with which that party, in return, has the 
possibility of receiving a prize of a fixed or variable amount, to be paid out by the 
other party, depending on the outcome of a process based solely or primarily on 
chance and in accordance with predefined rules. 
3 — The payment of a given sum by the player, giving him the possibility of 
receiving the game prize, may be made in cash, by direct debit into a current bank 
account or using the gamer card. 
4 — The gaming contract shall be concluded only when the Gaming Department 
of Santa Casa da Misericórdia de Lisboa has received the sum referred to in the 
preceding paragraph and issued the receipt confirming that the bet has been made. 
Brief summary of the facts and procedure 
(See request for a preliminary ruling in Case C-297/17) 
SPORTINGBET AND INTERNET OPPORTUNITY ENTERTAINMENT 
 
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The essential arguments of the parties to the main proceedings 
(See request for a preliminary ruling in Case C-297/17) 
Brief summary of the basis for the request for a preliminary ruling 
(See request for a preliminary ruling in Case C-297/17)