Opinion of the Advocate General — ECLI:EU:C:2015:724
Date: 2015-10-22
Language of the case: German
Subject matter: Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (First Chamber), 4 February 2016 1. Freedom to provide services — Provisions of the Treaty — Scope — Betting and gaming — Collection of bets by a company established in a Member State through the intermediary of an operator established in another Member State — Included (Art. 56 TFEU) 2. EU law — Primacy — Contrary national law — Inapplicability as a matter of law of existing standards (Declaration No 17 annexed to the FEU and EU Treaties) 3. Freedom to provide services — Restrictions — Betting and gaming — National legislation granting exclusive rights to organise those games to a single operator subject to State supervision — Unlawful — Refusal to grant a transitional period to the national administration concerned in order not to consider, on a transitional basis, applications for permits in that sector — Conditions for the grant of permits for the organisation of games of chance in light of such applications — Compliance with the fundamental rules of the Treaties and the principles of equal treatment and openness (Art. 56 TFEU) 4. Freedom to provide services — Restrictions — Betting and gaming — National legislation prohibiting the intermediation of sporting bets on behalf of an operator holding an authorisation in another Member State — Authorisation procedure applied inconsistently by the national authorities and called into question by certain national courts — Persistence of the effects of a public monopoly regime on sporting bets despite the national courts’ finding that that regime is not in conformity with EU law — Unlawful (Art. 56 TFEU) 5. Member States — Obligations (Art. 4(3) TEU; Declaration No 17 annexed to the FEU and EU Treaties) 6. Approximation of laws — Information procedure in the field of technical standards and regulations and of rules on Information Society services — Directive 98/34 — Obligation on Member States to notify the Commission of all draft technical regulations — Scope — Breach of that obligation — Consequences (European Parliament and Council Directive 98/34 as amended by Directive 98/48, Art. 8(1)) 7. Approximation of laws — Information procedure in the field of technical standards and regulations and of rules on Information Society services — Directive 98/34 — Technical regulation — Concept — National provisions laying down conditions governing the establishment or provision of services by undertakings — Not included (European Parliament and Council Directive 98/34, as amended by Directive 98/48, Art. 1, para. 11) 8. Approximation of laws — Information procedure in the field of technical standards and regulations and of rules on Information Society services — Directive 98/34 — Obligation on Member States to notify the Commission of all draft technical regulations — Scope — Failure to notify provisions maintaining in force, in a region, rules already notified as provisions common to the various regions of the Member State concerned — Infringement (European Parliament and Council Directive 98/34, as amended by Directive 98/48, Recital 7 and Art. 8(1)) 9. Freedom to provide services — Restrictions — Betting and gaming — National legislation prohibiting the intermediation without authorisation of sporting bets on behalf of an operator holding authorisation in another Member State — Incompatibility of the authorisation procedure with the principles of equal treatment and transparency — Persistence of the effects of a public monopoly regime on sporting bets despite the national courts’ finding that that regime is not in conformity with EU law — Unlawful (Art. 56 TFEU) 1. See the text of the decision. (see para. 43) 2. See the text of the decision. (see para. 52) 3. See the text of the decision. (see paras 54, 55) 4. 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. In circumstances where the competent authorities of a Member State do not apply a fictitious authorisation procedure in a unanimous and uniform manner, it cannot be excluded that private operators may not be in a position to know either the procedure to be followed for requesting an authorisation for organising and intermediating sporting bets or the conditions under which they will be granted or refused an authorisation. Such lack of precision does not enable the operators concerned to be apprised of the extent of their rights and obligations deriving from Article 56 TFEU, with the result that the system in question must be regarded as being contrary to the principle of legal certainty. Therefore, such a fictitious authorisation procedure cannot be regarded as having remedied the incompatibility with EU law, found by the national courts, of provisions of national law establishing a public monopoly regime with regard to the organisation and intermediation of sporting bets. (see paras 58, 59, 62, 65, operative part 1) 5. A Member State may not apply a criminal penalty for failure to complete an administrative formality where such completion has been refused or rendered impossible by the Member State concerned, in infringement of EU law. Such a prohibition, which stems from the principle of the primacy of EU law and from the principle of sincere cooperation laid down in Article 4(3) TEU, is binding, within the sphere of their areas of competence, on every organ of the Member State concerned, including the criminal prosecution authorities. (see paras 63, 64) 6. A breach of the notification obligation laid down in Article 8(1) of Directive 98/34 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, constitutes a procedural defect in the adoption of the technical regulations concerned, and renders those technical regulations inapplicable and therefore unenforceable against individuals. In that regard, even though Article 8(1) of that directive requires the entire draft of a law containing technical regulations to be communicated to the Commission, the non-applicability which results from the breach of that obligation extends not to all of the provisions of such a law, but only to the technical regulations contained therein. (see paras 67, 68) 7. National provisions which merely lay down conditions governing the establishment or provision of services by undertakings, such as provisions making the exercise of an activity subject to prior authorisation, do not constitute technical regulations within the meaning of Article 1(11) of Directive 98/48 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. (see para. 76) 8. Article 8(1) of Directive 98/34 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, 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. Having regard, in particular, to the second objective pursued by Directive 98/34 and set out in recital 7 of the preamble thereto, it is important that the economic operators of a Member State be informed of draft technical regulations adopted by another Member State and of their temporal and territorial scope, so as to enable them to be apprised of the extent of the obligations that may be imposed on them and to anticipate the adoption of those texts by adapting, if necessary, their products or services in a timely manner. In those circumstances, even if national rules are identical in content to those previously notified to the Commission, in so far as they differ in their temporal and territorial scope, attainment of the objectives pursued by Directive 98/34 requires that such draft legislation be notified to the Commission pursuant to the first subparagraph of Article 8(1) of that directive. (see paras 81-84, operative part 2) 9. 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 — 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. However, public authorities concluding such contracts are bound to comply with the fundamental rules of the FEU Treaty in general, including Article 56 TFEU, and, in particular, the principles of equal treatment and of non-discrimination on the ground of nationality, and the consequent obligation of transparency. (see paras 86, 95, operative part 3)