Opinion of the Advocate General — ECLI:EU:C:2008:560
Date: 2008-10-14
Language of the case: Portuguese
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of capital;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Portugal

Summary of the Judgment 1. Freedom to provide services – Provisions of the Treaty – Scope (Arts 49 EC and 56 EC) 2. Freedom to provide services – Restrictions (Art. 49 EC) 1. Any restrictive effects which the legislation of a Member State, which prohibits operators established in other Member States in which they lawfully provide similar services from offering games of chance via the internet within the territory of that Member State, might have on the free movement of capital and payments would be no more than the inevitable consequence of any restrictions on the freedom to provide services. Where a national measure relates to several fundamental freedoms at the same time, the Court will in principle examine the measure in relation to only one of those freedoms if it appears, in the circumstances of the case, that the other freedoms are entirely secondary in relation to the first and may be considered together with it. (see para. 47) 2. Article 49 EC does not preclude legislation of a Member State which prohibits private operators established in other Member States, in which they lawfully provide similar services, from offering games of chance via the internet within the territory of that Member State. Admittedly, such legislation gives rise to a restriction of the freedom to provide services enshrined in Article 49 EC, by also imposing a restriction on the freedom of the residents of the Member State concerned to enjoy, via the internet, services which are offered in other Member States. However, in the light of the specific features associated with the provision of games of chance via the internet, the restriction at issue may be regarded as justified by the objective of combating fraud and crime. The grant of exclusive rights to operate games of chance via the internet to a single operator which is subject to strict control by the public authorities may confine the operation of gambling within controlled channels and be regarded as appropriate for the purpose of protecting consumers against fraud on the part of operators. As to whether the system in dispute is necessary, the sector involving games of chance offered via the internet has not been the subject of Community harmonisation. A Member State is therefore entitled to take the view that the mere fact that a private 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. Moreover, the possibility cannot be ruled out that an operator which sponsors some of the sporting competitions on which it accepts bets and some of the teams taking part in those competitions may be in a position to influence their outcome directly or indirectly, and thus increase its profits. (see paras 53-54, 67-73, operative part)