Information;Order — ECLI:EU:C:2021:395
Date: 2021-05-18
Language of the case: German
Court formation: Seventh Chamber
Subject matter: Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
16 December 2019 
Referring court: 
Landesverwaltungsgericht Steiermark (Austria) 
Date of the decision to refer: 
6 December 2019 
Appellants: 
Fluctus s.r.o. 
Fluentum s.r.o. 
KI 
Respondent authority: 
Landespolizeidirektion Steiermark (Provincial Police Department of 
Styria) 
Subject matter of the main proceedings 
Penalties for the operation of illegal gaming machines (interference with State 
gambling monopoly)  
Subject matter and legal basis of the reference 
Compatibility of the Austrian gambling monopoly with Article 56 TFEU in the 
light of licence holders’ unmeasured advertising practices  
Questions referred 
1. Is Article 56 TFEU to be interpreted as meaning that, in the assessment of 
the impermissible advertising practices of the licence holder formulated by the 
Court of Justice in its established case-law in the case of a State gambling 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-920/19 
 
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monopoly, the relevant issue is whether there has in fact been growth in the 
gambling market considered overall in the relevant period, or is it sufficient that 
the advertising is aimed at stimulating active participation in gambling, such as by 
trivialising gambling, conferring on it a positive image because revenues derived 
from it are used for activities in the public interest, or by increasing its 
attractiveness by means of enticing advertising messages holding out the 
tantalising prospect of major winnings? 
2. Is Article 56 TFEU also to be interpreted as meaning that advertising 
practices of a monopolist, should they exist, in any event rule out the coherence of 
the monopoly system, or is it possible for active participation in gambling also to 
be stimulated by the monopolist in the event of corresponding advertising 
activities of private providers, such as by trivialising gambling, giving it a positive 
image because revenues derived from it are used for activities in the public 
interest, or by increasing its attractiveness by means of enticing advertising 
messages holding out the tantalising prospect of major winnings? 
3. Is a national court which is called upon, within the scope of its jurisdiction, 
to apply Article 56 TFEU under a duty, of its own motion, to give full effect to 
those provisions by refusing to apply any, in its opinion, conflicting provision of 
national law, even if the compliance of such a provision with EU law has been 
confirmed in constitutional-law proceedings? 
Provisions of EU law cited 
Article 56 TFEU 
Provisions of national law cited 
Bundesgesetz vom 28. November 1989 zur Regelung des Glücksspielwesens 
(Federal Law of 28 November 1989 on Gambling, ‘the GSpG’), Federal Law 
Gazette No 620/1989: Paragraphs 2, 3, 4, 14, 17, 21, 24, 50, 52, 53, 54, 56  
Case-law referred to: 
Judgments of 30 April 2014, Pfleger, C-390/12; of 6 November 2003, Gambelli, 
C-243/01; of 8 September 2010, Carmen Media, C-46/08; of 15 September 2011, 
Dickinger and Ömer, C-347/09; of 3 June 2010, Ladbrokes, C-258/08; of 
8 September 2010, Stoß and Others, C-316/07, C-358/07 to C-360/07, C-409/07 
and C-410/07; of 30 June 2011, Zeturf, C-212/08; of 24 January 2013, Stanleybet 
and Others, C-186/11 and C-209/11; of 11 January 2000, Kreil, C-285/98; of 
29 April 1999, Ciola, C-224/97; of 14 June 2017, Online Games and Others, 
C-685/15; of 21 July 2005, Coname, C-231/03; of 13 October 2005, Parking 
Brixen, C-458/03; of 14 November 2013, Belgacom, C-221/12; of 30 June 2016, 
FLUCTUS AND FLUENTUM 
 
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Admiral Casinos & Entertainment AG, C-464/15; of 10 April 1984, von Colson 
and Kamann, 14/83; and of 27 June 1991, Mecanarte, C-348/89  
Brief summary of the facts and procedure 
1 During the course of official inspections of operating premises, the machines 
found there, in each case installed without the official permit (‘licence’) required 
under the GSpG, were provisionally confiscated. The competent authorities issued 
a notice confirming provisional confiscation, initiated administrative penal 
proceedings and issued penalty notices imposing fines on the persons responsible, 
namely the owners of the machines, the operators of the premises, the operating 
staff and others. 
2 In this case, an inspection in accordance with the GSpG was conducted of 
premises in Graz on 19 October 2016. Eight machines were suspected of being in 
breach of the GSpG. The machines were in operation and fully functional and 
some were even being used by players. The machines (gaming equipment 
interfering with the State monopoly), which it was established are owned by 
Fluentum s.r.o. and licensed to Fluctus s.r.o., were provisionally confiscated. 
Charges were lodged with the competent authority, namely the 
Landespolizeidirektion Steiermark (Provincial Police Department of Styria). A 
confiscation notice was then sent on 23 November 2016 to Fluctus s.r.o., as the 
holder of the licences to the machines. On 12 December 2016, an identical 
confiscation notice was served on Fluentum s.r.o., in which that company was 
named as the organiser of the games of chance. Appeals against the aforesaid 
notices were lodged with the Landesverwaltungsgericht Steiermark (Regional 
Administrative Court, Styria).  
3 Administrative penalty proceedings were subsequently initiated. The competent 
authority, the Provincial Police Department of Styria, assumed that KI is the 
manager of Fluctus s.r.o. and Fluentum s.r.o. for the purposes of commercial law. 
Separate penal proceedings were therefore initiated against KI, as the organiser 
and operator of the games of chance, and fines totalling EUR 480 000 were 
imposed on the appellant. Costs totalling EUR 48 000 were imposed. To be exact, 
the Provincial Police Department of Styria issued a penalty notice on 22 January 
2018 imposing a fine of EUR 30 000 for each gaming machine (giving a total of 
EUR 240 000) and, in the event of non-payment, 7 days’ imprisonment for default 
of payment of each fine, and the Provincial Police Department of Styria issued a 
penalty notice on 29 January 2018 which also imposed a fine of EUR 30 000 per 
gaming machine (giving a total of EUR 240 000) and, in the event of non-
payment, 7 days’ imprisonment for default of payment of each fine. Appeals 
against both penalty notices were lodged with the Regional Administrative Court, 
Styria. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-920/19 
 
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4 The foreign connection required under Article 56 et seq. TFEU exists in the main 
proceedings, in that a limited liability company registered in another Member 
State of the European Union (in Bratislava, Slovakia) is party to them. 
Summary of the basis for the reference 
5 The Regional Administrative Court, Styria, raises doubts as to the compliance of 
the advertising practices of the licence holders (monopolists) with EU law 
(Article 56 TFEU).  
6 Legal requirements governing gambling advertising are worded only in a very 
non-specific manner in the Austrian GSpG. According to Paragraph 17(7) of the 
GSpG, lottery licence holders are obliged to provide general media support. 
However, there is no advertising obligation for casino operators. A definite 
restriction in relation to the content of gambling advertising can currently only be 
found in Paragraph 56(1) GSpG. According to that provision, licence and permit 
holders must ‘maintain a responsible standard’ in their advertising. Only 
supervision of compliance with that responsible standard is provided for and an 
action under Paragraph 1 et seq. of the Bundesgesetz gegen den unlauteren 
Wettbewerb (Federal Law Against Unfair Competition, ‘the UWG’) is explicitly 
excluded. 
7 Austrian courts have reviewed and confirmed the compatibility of the Austrian 
Law on Gambling with applicable EU law and the position adopted by the 
regional administrative courts, or have expressed no concerns, in numerous 
administrative and civil proceedings. In judgments delivered in 2016, all three of 
Austria’s highest courts, namely the Verwaltungsgerichtshof (Supreme 
Administrative Court, ‘VwGH’), the Verfassungsgerichtshof (Constitutional 
Court, ‘VfGH’) and the Oberster Gerichtshof (Supreme Court, ‘OGH’) confirmed 
that the Austrian gambling monopoly conforms to EU law (see paragraphs 21 and 
23 below). Since then, numerous judgments have been delivered that follow those 
landmark judgments. 
8 The Austrian gambling monopoly is in principle a restriction on the freedom to 
provide services in accordance with Article 56 TFEU. It is therefore compatible 
with EU law only where there is a justifying circumstance standardised in the 
Treaties or a justifying circumstance developed in the case-law of the Court of 
Justice (overriding requirement in the public interest) (see judgment in Pfleger, 
C-390/12, paragraph 38 et seq.). The main overriding requirements in the public 
interest for restricting gambling are consumer protection, combating fraud and 
preventing the incitement to squander money on gambling (see judgments in 
Gambelli, C-243/01, paragraph 65 et seq., and in Carmen Media, C-46/08, 
paragraph 55). However, asserting such objectives does not of itself suffice to 
justify any type of statutory rule. Where there is a recognised objective for 
restricting the fundamental freedom concerned, it is necessary to assess whether 
the principle of proportionality was observed. 
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9 The Court of Justice makes the permissibility of a gambling monopoly under EU 
law conditional not only on the objective of the legislature, but also on the actual 
effect of the regulations (see judgment in Dickinger and Ömer, C-347/09, 
paragraph 65). It therefore follows, including in connection with advertising, that 
the assessment of compliance with EU law must not focus solely on the content of 
the legal rule, in this case in particular on Paragraph 56(1) of the GSpG, under 
which licence and permit holders have to maintain a responsible standard in their 
advertising, but must also consider the actual effects of that provision. 
10 In terms of the assessment of the suitability of a gambling monopoly, the 
consistency of the national legislation (judgments in Gambelli, C-243/01, 
paragraph 65 et seq., and in Pfleger, C-390/12, paragraph 56) is very important. In 
the event that the suitability is confirmed, the Court secondly assesses the 
necessity and, where appropriate, thirdly, the appropriateness of the restriction. 
According to the case-law of the Court, national legislation is contrary to EU law 
if that legislation does not actually pursue the objective of protecting gamblers or 
fighting crime and does not genuinely meet the concern to reduce opportunities 
for gambling or to fight gambling-related crime in a consistent and systematic 
manner (judgment in Pfleger, C-390/12, paragraph 56). Also connected with the 
demand for consistency are requirements regarding advertising by a monopoly or 
licence holder, which the Court has clarified in several judgments (see judgments 
in Ladbrokes, Stoß, Zeturf, Dickinger and Ömer and Stanleybet cited above under 
‘case-law referred to’). The referring court deduces from these that the national 
legislature also has to regulate and monitor advertising by monopolists. Some 
commentators contend, including in connection with advertising by the licence 
holders Österreichische Lotterien and Casinos Austria AG, that the responsible 
standard required in advertising is not being maintained. There is criticism of the 
exclusivity for a predominantly private provider which is only superficially 
regulated, if at all, and, primarily as regards offer expansion and aggressive 
advertising, is not made to comply with any supervisory restrictions, contrary to 
EU law. 
11 The Regional Administrative Court, Styria, is of the opinion that the requirements 
established by the Court of Justice in respect of the permissibility of a gambling 
monopoly are not satisfied against the background of the Austrian legal situation 
(consistency), on the one hand, and the commercial policy of the sole licence 
holder for lotteries (extensive advertising practice), on the other. It can be 
assumed that the licence holder’s offensive advertising policy exceeds the limits 
defined by the Court in the judgments in Carmen Media, Stoß, and Dickinger and 
Ömer, which means that, for that reason alone, the Austrian gambling monopoly, 
including its accompanying regulations, is no longer applicable in respect of 
persons who benefit from the freedom to provide services, such as the appellants. 
That assessment is supported by every legal commentary.  
12 The monopolist’s expansionist policy, accompanied by intensive advertising 
expenditure, undermines the protection of consumers from incitement to squander 
money on gambling that is demanded by the Court of Justice. The advertising 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-920/19 
 
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restrictions prescribed by the Court are not being observed in practice. The market 
policy of the licence holders Österreichische Lotterien GmbH and Casinos Austria 
AG fulfils all the criteria established by the Court as to precisely how a 
monopolist may not behave: the monopolists’ advertising stimulates active 
participation in gambling, confers a positive image on the games, holds out the 
tantalising prospect of major winnings, encourages new target groups to gamble, 
and is being continually expanded in terms of content.  
13 The referring court cites numerous examples of intensive advertising in these five 
categories, such as annual advertising expenditure of approximately EUR 40 
million, campaigns in public spaces and on television to achieve broad coverage, 
incentives to gambling, such as discounts, to encourage target groups with less of 
a propensity to gamble, such as women and young people, to start gambling, 
advertising easily achievable seven-figure winnings, conferring positive effects on 
gambling (support for public events and charities, tempting gamblers by linking 
values such as luck, fame, image, self-confidence, etc. and even physical 
attractiveness to gambling in advertising) and facilitating access to gambling 
(expansion of lottery points of sale, availability online or via mobile app, 
distribution of gambling coupons, etc.). 
14 The current expansion in terms of the content of the monopolist’s offer can only 
be explained from a monetary perspective, not as moderate channelling of the 
gaming instinct. The confusion of interests in the Ministry of Finance as a direct 
financial beneficiary of offer expansions and price increases in gambling is 
obvious. On the one hand, the Republic of Austria indirectly holds shares in 
Casinos Austria AG or Österreichische Lotterien GmbH, and, on the other hand, 
the Minister for Finance is supposed to perform a comprehensive supervisory 
function in respect of licence holders and to grant licences in contest with other 
competitors on the Austrian gambling market in a transparent and verifiable 
manner. This tension inevitably has an extensive impact on the gambling 
legislation, and is also evident in practice in the inadequate performance of the 
supervisory duties in respect of the licence holders.  
15 It is noted, with reference to a judgment delivered in 2014 by the Landesgericht 
Linz (Regional Court, Linz), that overall advertising by the exclusive gambling 
licence holders (Österreichische Lotterien GmbH and Casinos Austria AG) was 
not measured and limited to directing the consumer to controlled gaming networks 
(of the monopolists), and to counteracting gambling addiction and criminal 
activities connected therewith (the existence of which it was broadly impossible to 
determine), but was instead expansionist advertising aimed at growth, which 
sought to promote gambling operations and stimulated active participation by 
trivialising, conferring a positive image on and increasing the attractiveness of 
gambling and holding out the prospect of tantalising winnings. The 
Landesverwaltungsgericht Vorarlberg (Regional Administrative Court, 
Vorarlberg) found that these advertising activities are not measured or strictly 
limited to what is necessary. Even the Supreme Court explicitly showed in several 
judgments that the gambling monopoly is contrary to EU law. 
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16 It is not only advertising by the monopolists that is neither measured nor limited 
and is not subject to effective supervision; the same applies to numerous third-
party undertakings offering games of chance in Austria, especially in the online 
sector, with the majority of advertisements promoting undertakings which do not 
have a licence for operating draws in Austria. It remains unclear why the ban 
established in the GSpG on advertising for unlicensed gambling is not enforced by 
the Ministry of Finance. In any event, it obviously has nothing to do with a 
consistent gambling policy or protecting gamblers. 
17 In the final analysis, the advertising does not serve exclusively to direct 
consumers to controlled gaming networks; instead it pursues the objective of 
stimulating active participation in gambling, in particular by people who have not 
been readily prepared to gamble in the past. Therefore, there is no measured 
advertising within the meaning of the cited case-law of the Court of Justice. The 
fact that Paragraph 56(1) of the GSpG excludes review of the standard in 
advertising required under EU law through an action brought by competitors or 
associations with the capacity to initiate proceedings under the UWG fits in with 
this picture. The gambling monopoly therefore lacks the justification required 
under EU law. 
18 An answer to the questions referred is essential in these proceedings, as two of 
Austria’s highest courts (VfGH and VwGH) have assumed that the GSpG is 
compatible with EU law and have, in a one-off review, delivered a landmark 
judgment (see paragraphs 21 and 23 below), by which, at least in the opinion of 
the highest courts, all other courts are now bound. Were one to espouse that view, 
it would be impossible in future to review the provisions of the GSpG against EU 
law. Furthermore, this practice contrary to EU law conflicts directly with the case-
law of the Court of Justice (judgments in Kreil, C-285/98; in Ciola, C-224/97; and 
in Online Games, C-685/15). 
19 The appellants are active in the protected area of the freedom to provide services. 
According to the provision of Article 56 TFEU governing that area, which is 
addressed to all the Member States, it is prohibited for authorities to restrict the 
freedom to provide services. The right conferred by the freedom to provide 
services is directly applicable, that is it does not require either an official or a 
judicial decision by the Austrian State in order to apply. The aforesaid prohibition 
in Article 56 TFEU prevails over national law, including national constitutional 
law. A national constitutional court cannot therefore sideline a fundamental 
freedom. Every authority must apply Article 56 TFEU as having primacy over any 
national restriction, irrespective of the legal quality of that restriction. Any 
national restriction, even if it ranks as constitutional law or takes the form of a 
final decision and/or judgment confirmed by a court, that conflicts with the 
higher-ranking prohibition in Article 56 TFEU may not be applied. The Court of 
Justice has explained previously, in a judgment in 1999 concerning Austria 
(Ciola, C-224/97, see paragraphs 24 to 34), that EU citizens may not be 
disadvantaged by laws and/or official measures, whether or not final/definitive, 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-920/19 
 
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that are contrary to EU law. On the contrary, the authorities must submit to the 
higher-ranking EU law.  
20 The relevant penalty notice infringes EU law, which has primacy. It is based on 
the Austrian Law on Gambling which restricts the freedom to provide services. 
No justification for infringement of the freedom to provide services by the 
decision based on a law contrary to EU law (the Law on Gaming) was shown in 
the proceedings to be theoretically possible for reasons of an overriding 
requirement in the public interest. Reference to the judgment of the Court of 
Justice in Pfleger (C-390/12) suffices to substantiate the lack of legitimacy of the 
Austrian monopoly. The restrictions in the Austrian Law on Gaming are contrary 
to EU law in the — relevant — light of the ‘actual rules for applying the 
restrictive legislation concerned’. Austria did not even contend the opposite, even 
though it bears the burden of proof (see judgment in Online Games, C-685/15). 
21 No one can rely on judgments of the Supreme Administrative Court that are 
contrary to EU law, such as, in particular, the landmark judgment of 16 March 
2016 in case 2015/17/0022. Incorrect judgments of the Supreme Administrative 
Court cannot be superimposed on EU law and do not absolve the administration 
from the need to respect EU law, which has primacy. In its judgment in Pfleger 
(C-390/12, see paragraphs 53 to 55), the Court of Justice upheld its settled case-
law that the Austrian monopoly cannot be justified under EU law on the basis of 
actual conditions in Austria. The State had been unable to show that crime or 
addiction to gambling actually constituted a problem that justified a monopoly. 
22 Precisely the same applies in this case. The competent authorities have not shown 
that crime and/or addiction to gambling actually constituted, during the period at 
issue, a significant problem that could legitimise a monopoly and a decision based 
on it. On the contrary, it is clear that the real purpose of the monopoly is not to 
fight crime and protect gamblers, but solely to maximise State tax revenue by 
favouring a monopolist. 
23 The Supreme Administrative Court arbitrarily disregards EU law in its binding 
interpretation by the Court of Justice; hence the questions referred are of vital 
importance to the proceedings under way; otherwise, there is a danger that the 
GSpG will be upheld once again, in breach of EU law. How this unlawful practice 
stands in relation to the questions referred on advertising is illustrated by the fact 
that the relevant judgments of the highest courts (especially the Supreme 
Administrative Court judgment of 16 March 2016, Ro 2015/17/0022, and the 
Constitutional Court judgment of 15 October 2016, E 945/2015) are not based on 
independent fact-finding with regard to the question of the compatibility with EU 
law of the monopoly system under the GSpG, which is why, at a purely factual 
level, they cannot by default help to clarify the requirement highlighted by the 
Court again recently (see judgment in Admiral Casinos & Entertainment AG, 
C-464/15) that Article 56 TFEU is to be interpreted as meaning that, in a review 
of the proportionality of restrictive national legislation in the area of games of 
chance, the approach taken must be dynamic rather than static, in the sense that it 
FLUCTUS AND FLUENTUM 
 
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must be based not only on the objective of that legislation at the time of its 
adoption, but also on the effects of the legislation, assessed after its adoption. 
24 For the rest, the advertising opportunities of, or the advertising of games of chance 
by, licence holders in Austria are contrary to EU law (see again the cited 
judgments in Ladbrokes, Stoß, Zeturf, Dickinger and Ömer and Stanleybet). 
25 Although it would in principle be permissible in accordance with the case-law of 
the Supreme Administrative Court (see judgment of 11 July 2018, Ra 
2018/17/0048) for licence holders to engage on occasion in aggressive 
advertising, that only applies where aggressive advertising is necessary for the 
particular game of chance or the particular gaming sector in order to guarantee 
protection of gamblers, especially where the advertisement can guide gamblers 
away from the illegal to the legal sector. As there is no evidence in Austria of 
illegal offers in terms of lottery products or live casino games, it has to be 
assumed that a stricter criterion must be applied here as far as advertising is 
concerned. Aggressive advertising, of lottery tickets for example, cannot be 
justified by an allegedly widespread illegal offer of gaming machines. In the legal 
opinion of the Supreme Administrative Court, that would mean that it would be 
permissible to engage on occasion in aggressive advertising, although admittedly 
only for the gaming machine sector in Austria. However, precisely the opposite 
applies. The exhibits adduced illustrate aggressive and, in the opinion of the EU 
judicature, prohibited advertising in sectors in Austria which are not even affected 
by the alleged illegal activities. For that reason alone, the monopoly established 
under the Law on Gaming is unlawful and, therefore, persons subject to that law 
cannot be penalised. 
26 In view of paragraph 27 of the order of the Court of Justice of 9 January 2019 in 
Fluctus and Fluentum, C-444/18, the questions require an answer as, although the 
highest courts in Austria found in their landmark judgments that the advertising is 
aggressive and intended to win new gamblers who have not previously played, 
they ignore that fact by finding nonetheless that it is compatible with EU law. This 
practice contrary to EU law directly contradicts the case-law of the Court of 
Justice. It is vital that the questions referred be answered, as the unlawful practice 
of the Austrian courts will not be curtailed without a new and unequivocal 
decision by the Court of Justice.