Judgment;Summary — ECLI:EU:C:2020:812
Date: 2020-10-08
Language of the case: German
Court formation: Ninth Chamber
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Austria

summary, they claimed that the provisions concerning betting terminals contained 
in the Wiener Wettterminalabgabegesetz (Vienna Betting Terminal Duty Law, 
WWAG) were ‘Technical Regulations’ within the meaning of the Gesetz über 
internationale Informationsverfahren und Notifizierungen auf dem Gebiet 
technischer Vorschriften (Law on international procedures for the provision of 
information and notifications in the field of technical regulations, WNotifG) and 
Directive (EU) 2015/1535 of the European Parliament and of the Council of 
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9 September 2015. In the view of the appellants on a point of law, the 
Commission had not been informed of those technical regulations, which meant 
that they were unenforceable against individuals. They claimed this had the effect 
that the betting terminal duty had been wrongly imposed. 
7 The Federal Finance Court dismissed the appeals as unfounded by the judgment 
contested before the Supreme Administrative Court. [Or. 3] 
8 The Federal Finance Court came to the conclusion, with more detailed reasoning, 
that the provisions of the WWAG were not technical regulations within the 
meaning of the WNotifG or Directive 2015/1535. There was therefore no 
notification obligation under the WWAG. This meant that the WWAG was 
enforceable against the appellants on a point of law; the betting terminal duty had 
been correctly imposed. 
9 The Constitutional Court declined to give judgment on the appeal lodged against 
that judgment by the appellants on a point of law. 
10 B. Relevant provisions of national law 
11 The Vienna Betting Terminal Duty Law (WWAG), a provincial law, in the 
original version applicable in the present case, LGB1. No 32/2016 , reads, in 
extract, as follows: 
‘Subject of duties 
Paragraph 1. A betting terminal duty is to be paid for the operation of betting 
terminals in the territory of the city of Vienna. 
Definitions 
Paragraph 2. For the purposes of this law, the following definitions shall apply: 
1. Betting terminal: a betting outlet at a particular location, which is linked via 
a data connection to a bookmaker or totalisator and enables a person to 
participate directly in a bet. 
2. Bookmaker: a person whose profession is to accept bets. 
3. Totalisator: a person whose profession is to broker bets. 
Level of the duty 
Paragraph 3. The duty for the operation of betting terminals shall be EUR 350 per 
betting terminal and calendar month started. 
[…] 
Penalties 
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Paragraph 8. (1) Actions or omissions by which the duty is evaded are to be 
punished as administrative offences with fines of up to EUR 42 000; if the fine is 
not paid, up to six weeks’ imprisonment for default of payment is to be imposed. 
The evasion lasts [Or. 4] until the person subject to taxation rectifies the self-
assessment or the fiscal authority fixes the duty by way of official decision. […]’ 
12 In the reasoning of the preparatory documents relating to this law (LG — 00689-
2016/0001/LAT), the following was stated in particular: 
‘The ability to operate betting terminals simply and anonymously leads to a high 
level of readiness to use amongst the potential customers, which may be further 
increased through additional offers from the installers. With regard to these 
particular circumstances, it is therefore appropriate to subject betting terminals to 
specific taxation, in order to inhibit this form of betting, especially since this area 
is also to be considered from the perspective of gambling addiction with all of its 
negative social consequences. 
Betting terminals present an increased risk of addiction compared to in-person 
betting outlets. This mainly lies in the fact that the lack of personal contact breaks 
down the inhibition threshold for participation in betting and therefore makes it 
easier to participate in betting. Participation in betting via a betting terminal leads 
to increased betting behaviour overall. This is also attributable to the fact that the 
technical possibilities of betting terminals allow a far greater range of betting 
opportunities to be made available to customers. At the same time, betting 
terminals enable multiple bets to be placed one after the other at relatively short 
intervals. 
A betting terminal duty of EUR 350 per betting terminal and calendar month 
started should therefore be introduced for the operation of betting terminals in the 
territory of the city of Vienna. […] 
The operation of betting terminals forms the object of the duty. 
[…] The [legal] wording ‘enables direct participation in a bet’ is intended to 
clarify that those technical devices where only personnel of the particular 
undertaking can enter bets for the customer do not constitute betting terminals 
within the meaning of the law (for example in tobacconist’s shops, where the bet 
is exclusively entered by the sales personnel and the bet acceptance counter is not 
freely available to customers). 
It may be inferred from the definitions that the object of the tax is not linked to the 
concept of a betting terminal and the other definitions of the draft Vienna Betting 
Law and differs from that [Or. 5]  in the Fees Law 1957 to the effect that the 
operation of betting terminals, rather than the conclusion of a betting contract, is 
the object of the tax. […] 
With regard to the level of duty, reference is made to the judgment of the 
Constitutional Court of 5 December 2011, B 533/11, Constitutional Court ruling 
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19.580/2011. In that judgment, it was stated inter alia that the legislature is not to 
be opposed where, instead of prohibiting the installation of gaming machines for 
gambling, it seeks to inhibit the installation of machines or gambling by 
increasing the tax burden. To the extent that potential gamblers are thereby 
prevented from gambling due to its lack of appeal, that is precisely the 
legislature’s intention, which is not to be subject to challenge under constitutional 
law. This reasoning can be applied to the betting terminal duty. […]’ 
13 The law on the conclusion and brokerage of bets (Vienna Betting Law), in the 
original version applicable here, LGBl. No 26/2016, regulates the commercial 
conclusion (bookmaker bet) and the commercial brokerage (totalisator bet) of bets 
on the occasion of sporting events and the commercial brokerage of such bets and 
betting customers (Paragraph 1 of the abovementioned law). In Paragraph 2 
point 8, it contains its own definition of ‘betting terminal’, which differs slightly 
from that of the Betting Terminal Duty Law. The law then contains extensive 
provisions on the requirements of authorisation to act as a betting trader. 
Paragraph 13 of that law contains more detailed provisions concerning betting 
terminals. 
14 The Vienna Betting Law was notified in accordance with the provisions of 
Directive (EU) 2015/1535 (notification number: 2015/602/A). 
15 The Wiener Notifizierungsgesetz (Vienna Notification Law, WNotifG) LGB1. 
No 28/1996 (; — in the current version (LGB1. No 36/2016) — implements 
Directive (EU) 2015/1535 (Paragraph 7 WNotifG). It essentially contains 
definitions corresponding to that directive. [Or. 6] 
16 C. Explanations of the questions referred 
17 1. Relevance of the questions referred 
18 Under Paragraph 3 WWAG, the duty for the operation of betting terminals is to be 
€ 350 per betting terminal and calendar month started. It is undisputed that this 
situation exists in the present case in the periods concerned and the appellants on a 
point of law are subject to taxation within the meaning of the WWAG in their 
respective capacity (operator, owner or proprietor of the premises used for 
operating the betting terminal). The appellants on a point of law have not been 
successful before the Constitutional Court in relation to their objections based on 
domestic constitutional law. Under domestic law, the tax liability at issue 
therefore exists. 
19 However, the appellants on a point of law claim that the tax liability conflicts with 
EU law. In this respect, it remained undisputed in the proceedings that the draft of 
the WWAG — unlike that of the Vienna Betting Law — was not notified in 
accordance with Commission Directive 2015/1535. 
20 If the provisions of the WWAG are — as claimed by the appellants on a point of 
law — technical regulations within the meaning of Directive 2015/1535 and to the 
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extent that a breach of the notification obligation could mean that the betting 
terminal duty may not be levied, the appellants on a point of law would, however 
not be capable of being liable to pay tax. The decision of the Supreme 
Administrative Court therefore depends on the questions mentioned. 
21 2. The first question referred 
22 It should firstly be noted that — as far as the Supreme Administrative Court is 
able to establish — there are no rulings by the Court of Justice to date on 
Directive 2015/1535 which is to be interpreted in the present case (a request for a 
preliminary ruling on that directive obviously exists in respect of Case C-727/17). 
However, the Supreme Administrative Court assumes that, in this respect, 
reference is to be made to the case-law on predecessor directives, which that 
directive served to codify (see Recital 1 of the directive). [Or. 7] 
23 According to the established case-law of the Court of Justice on the predecessor 
directives, the concept of a ‘technical regulation’ extends to four categories of 
measures, namely (i) the ‘technical specifications’, within the meaning of 
Article 1(3) of Directive 98/34 (Article 1(1)(c) of Directive 2015/1535; also see in 
this respect the correlation table in Annex IV to the directive); (ii) ‘other 
requirements’, as defined in Article 1(4) of that directive (now Article 1(1)(d)); 
(iii) the ‘rule on services’, covered in Article 1(5) of that directive (now 
Article 1(1)(e)), and (iv) the ‘laws, regulations or administrative provisions of 
Member States prohibiting the manufacture, importation, marketing or use of a 
product or prohibiting the provision or use of a service, or establishment as a 
service provider’, under Article 1(11) of that directive (now Article 1(1)(f); see, 
recently, Court of Justice, 26 September 2018, Van Gennip and Others, C-137/17, 
paragraph 37, with further references; also see Opinion of 13 December 2018, VG 
Media, C-299/17, paragraph 19). 
24 a) ‘Technical specifications’ 
25 This concept presupposes that the national measure necessarily refers to the 
product or its packaging as such and therefore lays down one of the characteristics 
required of a product, such as the dimensions, the sales description, labelling or 
marking (see Court of Justice, 8 March 2001, van der Burg, C-278/99, 
paragraph 20; Court of Justice, 21 April 2005, Lindberg, C-267/03, paragraph 57; 
Court of Justice, Van Gennip and Others, paragraph 38; also see Court of Justice, 
10 July 2014, Ivansson, C-307/13, paragraphs 19 et seq.). General provisions are 
not to be assessed as such technical specifications (see, once again, Court of 
Justice, Ivansson, paragraphs 21 and 22). 
26 Admittedly, the WWAG refers to ‘products’ (betting terminals) which are 
involved in the activity (see, for instance, Court of Justice, 4 February 2016, Ince, 
C-336/14, paragraph 71). However, specific characteristics of betting terminals 
are not regulated by the WWAG, unlike in the Vienna Betting Law. The WWAG 
merely describes the functions performed by the betting terminal; ‘descriptions’ 
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are involved in this respect (see, in this regard, Court of Justice, 13 October 2016, 
M. and S., C-303/15, paragraph 28), rather than ‘provisions’. The [Or. 8] Supreme 
Administrative Court therefore assumes that no technical specifications are 
present. 
27 b) ‘Other requirements’ 
28 Before a condition can be classified within ‘other requirements’ (on the reasoning 
for the introduction of this category, see in more detail Court of Justice, 21 April 
2005, Lindberg, C-267/03, paragraphs 61 et seq.), a national measure must 
constitute a ‘condition’ which can significantly influence the composition or 
nature of the product concerned or its marketing (see Court of Justice, 13 October 
2016, M. and S., C-303/15, paragraph 20, with further references; also Court of 
Justice, 4 February 2016, Ince, C-336/14, paragraph 72). The prohibition on 
issuing, extending or amending authorisations for activity relating to gaming on 
low-prize machines outside casinos is such as to directly affect trade in low-prize 
gaming machines, and therefore the marketing thereof (see Court of Justice, 
19 July 2012, Fortuna and Others, C-213/11 inter alia, paragraph 36; also see 
Court of Justice, 11 June 2015, Berlington Hungary, C-98/14, paragraph 99). 
29 In the present case, there is no prohibition in this respect, but merely taxation. 
However, as is apparent from the explanations in the preparatory documents 
relating to this law, this taxation (in any case also) serves to ‘inhibit this form of 
betting’. In addition to fiscal objectives, it was therefore obviously also the intent 
of the legislature to prevent gamblers from gambling, even though the number of 
betting terminals operating in Vienna subsequently remained essentially constant 
at around 2 000 units. 
30 It therefore does not appear in any case to be excluded that the taxation of the 
operation of betting terminals is to be assessed as a requirement in particular for 
protecting consumers (gamblers) concerning the life cycle of the product (betting 
terminals) after it has been placed on the market and which can significantly 
influence the marketing of the betting terminal. 
31 It could certainly also be in question whether a measure within the meaning of 
Article 1(6) of the Directive is involved here. However, if the protection of 
workers is claimed in this connection [Or. 9], if only ‘in particular’, it at least 
appears not to be obvious that gamblers are also supposed to be protected with 
regard to a possible gambling addiction in this respect. 
32 c) ‘Rules on services’ 
33 For classification under this category, these rules must be aimed ‘specifically’ at 
electronic information society services. This must be determined in the light of 
both the stated reasons and the wording of the rule. In this respect, it is sufficient 
that the rule pursues that aim or object in certain of its provisions (see Court of 
Justice, 20 December 2017, Falbert, C-255/16, paragraph 32). A national 
provision, which provides for sanctions in the event of unauthorised gaming, 
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constitutes a technical regulation if that provision expressly and specifically 
concerns online gaming services (see, once again, Court of Justice, Falbert, 
paragraph 37). 
34 In this respect, the WWAG provides for sanctions only in the case of tax evasion 
or failure to notify. However, with the standardisation of tax liability in respect of 
the operation of betting terminals, it is (also) aimed at inhibiting the conclusion of 
bets via this distribution channel (see above regarding the ‘other requirements’). 
In this respect, an assessment of the WWAG as a general requirement for the 
provision of an information society service does not in any event appear to be 
excluded. It also does not appear to be excluded that these provisions of the 
WWAG are to be assessed as regulation of those services, namely the provision of 
information on, firstly, betting opportunities and secondly, the conclusion of bets, 
both of which are directly connected with the operation of betting terminals. The 
situation does not appear to be comparable with the making of a plane ticket 
reservation at a travel agency in the physical presence of the customer by means 
of a network of computers (Annex I, paragraph1(c) of the directive), as the betting 
terminal is operated by the customer him or herself, albeit usually in the presence 
(of a representative) of the proprietor of the premises in which the betting terminal 
is located. [Or. 10] 
35 With regard to whether such an assessment is once again excluded for instance by 
Article 1(6) of the Directive, reference may be made to the above observations (on 
the ‘other requirements’). 
36 d) Regulations within the meaning of the fourth category 
37 Classification according to this category (on the introduction of this category, see 
once again Court of Justice, 21 April 2005, Lindberg, C-267/03, paragraph 73) 
requires that regulations prohibit the manufacture, importation, marketing or use 
of a product or the provision or use of a service (see Court of Justice, 9 June 2011, 
Intercommunale Intermosane, C-361/10, paragraph 13; Court of Justice, 10 July 
2014, Ivansson, C-307/13, paragraph 16). 
38 As the WWAG contains absolutely no prohibition in this sense, the Supreme 
Administrative Court is of the opinion that this law does not fall within this 
category. In particular, not even Paragraph 8 WWAG provides for any prohibition 
of the activities mentioned, but rather it provides for sanctions in the case of tax 
evasion or failure to notify. 
39 e) ‘De facto regulations’ 
40 If a regulation which is not to be assessed as a technical regulation refers to other 
regulations which are themselves to be regarded as technical regulations, the first-
mentioned regulation is to be assessed as a ‘de facto technical regulation’ (see 
Court of Justice, 10 July 2014, Ivansson, C-307/13, paragraph 31). 
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41 In the opinion of the Supreme Administrative Court, it is sufficient in this regard 
to point out that the WWAG contains no reference to other regulations, in 
particular the Vienna Betting Law (also see in this regard Court of Justice, 11 June 
2015, Berlington Hungary, C-98/14, paragraphs 96 and 97). 
42 3. The second question referred 
43 According to the established case-law of the Court of Justice (on predecessor 
directives; differently — on an even earlier regulation — Court of Justice, 13 July 
1989, Enichem Base, C-380/87, paragraphs 22 and 23), breach of the notification 
obligation renders the [Or. 11] ‘technical regulations’ concerned inapplicable, so 
that they are unenforceable against individuals (see Court of Justice, 30 April 
1996, CIA Security International, C-194/94, paragraph 54; Court of Justice, 
26 September 2000, Unilever Italia, C-443/98, paragraphs 49 et seq.; Court of 
Justice, 10 July 2014, Ivansson, C-307/13, paragraph 48; Court of Justice, 
4 February 2016, Ince, C-336/14, paragraph 68: only the technical regulations 
contained therein, not the other provisions of a law, are inapplicable; also see 
Opinion of 13 December 2018, VG Media, C-299/17, paragraph 2; but also see 
Court of Justice, 16 June 1998, Lemmens, C-226/97, paragraphs 35 et seq.). 
44 Overall, the interpretation of EU law does not appear to be so obvious as to leave 
no scope for any reasonable doubt (see Court of Justice, 4 October 2018, 
Commission v French Republic, paragraph 110). 
45 The questions are therefore referred to the Court of Justice with a request for a 
preliminary ruling pursuant to Article 267 TFEU. 
[Signatures and official seal]