Opinion of the Advocate General — ECLI:EU:C:2009:791
Date: 2009-12-17
Language of the case: Dutch
Subject matter: Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment 1. Freedom to provide services – Restrictions – Games of chance (Art. 49 EC) 2. Freedom to provide services – Restrictions – Games of chance (Art. 49 EC) 1. Article 49 EC must be interpreted as not precluding legislation of a Member State under which exclusive rights to organise and promote games of chance are conferred on a single operator, and which prohibits any other operator, including an operator established in another Member State, from offering via the internet services within the scope of that regime in the territory of the first Member State. Since the internet gaming industry has not been the subject of harmonisation within the European Union, a Member State is entitled to take the view that the mere fact that an operator lawfully offers services in that sector via the internet in another Member State, in which it is established and where it is in principle already subject to statutory conditions and controls on the part of the competent authorities in that State, cannot be regarded as amounting to a sufficient assurance that national consumers will be protected against the risks of fraud and crime, in the light of the difficulties liable to be encountered in such a context by the authorities of the Member State of establishment in assessing the professional qualities and integrity of operators. In addition, because of the lack of direct contact between consumer and operator, games of chance accessible via the internet involve different and more substantial risks of fraud by operators against consumers compared with the traditional markets for such games. In the light of the specific features associated with the provision of games of chance via the internet, that restriction may therefore be regarded as justified by the objective of combating fraud and crime. (see paras 33-34, 36-37, operative part 1) 2. Article 49 EC must be interpreted as meaning that the principle of equal treatment and the consequent obligation of transparency are applicable to procedures for the grant of a licence to a single operator or for the renewal thereof in the field of games of chance, in so far as the operator in question is not a public operator whose management is subject to direct State supervision or a private operator whose activities are subject to strict control by the public authorities. As European Union law now stands, service concession contracts are not governed by any of the directives by which the Union legislature has regulated the field of public procurement. However, if a prior administrative authorisation scheme such as one prohibiting the organisation or promotion of games of chance without such authorisation and granting only one licence in respect of each of the games authorised is to be justified, even though it derogates from a fundamental freedom, it must be based on objective, non-discriminatory criteria known in advance, in such a way as to circumscribe the exercise of the authorities’ discretion so that it is not used arbitrarily. Furthermore, any person affected by a restrictive measure based on such a derogation must have an effective judicial remedy available to them. (see paras 39, 43, 50, 62, operative part 2)