Opinion of the Advocate General — ECLI:EU:C:2011:195
Date: 2011-03-31
Language of the case: German
Subject matter: Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 1. Freedom to provide services – Restrictions – Games of chance – National legislation establishing a monopoly of the operation of games of chance marketed over the internet – Criminal penalties for persons infringing the monopoly – Lawfulness – Conditions (Art. 49 EC) 2. Freedom to provide services – Provisions of the Treaty – Scope – Services of games of chance marketed over the internet – Making use of intermediaries established in the same Member State as the recipients of the services of the foreign provider – No effect (Art. 49 EC) 3. Freedom to provide services – Restrictions – Games of chance – National legislation establishing a monopoly of the operation of games of chance marketed over the internet – Justification (Arts 49 EC and 55 EC) 4. Freedom to provide services – Restrictions – Games of chance – National legislation establishing a monopoly of the operation of games of chance marketed over the internet – Holder of the monopoly able to follow an expansionist policy – Justification (Art. 49 EC) 5. Freedom to provide services – Restrictions – Games of chance – Operator authorised by the Member State of establishment to offer games of chance – Not possible for that operator to offer such services over the internet in another Member State because of a monopoly (Art. 49 EC) 1. European Union law, in particular Article 49 EC, precludes the imposition of criminal penalties for infringing a monopoly of operating games of chance, such as a monopoly of operating online casino games laid down by national legislation, if such legislation is not compatible with European Union law. European Union law sets certain limits to the powers of Member States in criminal matters, since criminal legislation may not restrict the fundamental freedoms guaranteed by European Union law. Thus, where a monopoly system is incompatible with Article 49 EC, an infringement by an economic operator cannot be penalised by criminal penalties. (see paras 31-32, 43, operative part 1) 2. Article 49 EC must be interpreted as applying to services of games of chance marketed over the internet in the territory of a host Member State by an operator established in another Member State despite the fact that the operator: (a) has set up certain computer support infrastructure, such as a server, in the host Member State and (b) makes use of computer support services of a provider established in the host Member State in order to provide his services to consumers who are likewise established in that Member State. Article 49 EC applies to an operator of games of chance established in one Member State who offers his services in another Member State, even if he makes use for that purpose of intermediaries established in the same Member State as the recipients of those services. That article applies a fortiori where the operator of games of chance makes use not of intermediaries but of a mere provider of computer support services in the host Member State. (see paras 37-38, operative part 2) 3. Article 49 EC must be interpreted as meaning that a Member State seeking to ensure a particularly high level of consumer protection in the sector of games of chance may be entitled to consider that it is only by setting up a monopoly for a single entity subject to strict control by the public authorities that it can tackle crime linked to that sector and pursue the objective of preventing incitement to squander money on gambling and combating addiction to gambling with sufficient effectiveness. (see para. 48, 100, operative part 3) 4. Article 49 EC must be interpreted as meaning that to be consistent with the objective of fighting crime and reducing opportunities for gambling, national legislation establishing a monopoly of games of chance which allows the holder of the monopoly to follow an expansionist policy must: – be based on a finding that the crime and fraud linked to gaming and addiction to gambling are a problem in the Member State concerned which could be remedied by expanding authorised regulated activities, and – allow only moderate advertising limited strictly to what is necessary for channelling consumers towards monitored gaming networks. In order to achieve that objective of channelling into controlled circuits, the authorised operators must provide a reliable, but at the same time attractive, alternative to non-regulated activities, which may as such necessitate the offer of an extensive range of games, advertising on a certain scale, and the use of new distribution techniques. Any advertising by the holder of a public monopoly must remain measured and strictly limited to what is necessary in order thus to channel consumers towards controlled gaming networks. Such advertising cannot, on the other hand, aim to encourage consumers’ natural propensity to gamble by stimulating their active participation in it, such as by trivialising gambling or giving it a positive image because revenues derived from it are used for activities in the public interest, or by increasing the attractiveness of gambling by means of enticing advertising messages holding out the prospect of major winnings. (see paras 64, 68, 100, operative part 3) 5. Article 49 EC must be interpreted as meaning that the fact that a Member State has opted for a system of protection that differs from that adopted by another Member State cannot affect the assessment of the need for and proportionality of the relevant provisions, which must be assessed solely by reference to the objectives pursued by the competent authorities of the Member State concerned and the level of protection which they seek to ensure. In the absence of harmonisation at European Union level of legislation in the sector of games of chance, and in view of the substantial differences between the objectives pursued and the levels of protection sought by the legislation of the various Member States, the mere fact that an operator lawfully offers services in one Member State, in which it is established and is in principle already subject to statutory conditions and controls on the part of the competent authorities of that State, cannot be regarded as a sufficient assurance that national consumers will be protected against the risks of fraud and crime in the host Member State. (see paras 96-97, 100, operative part 3)