Opinion of the Advocate General — ECLI:EU:C:2024:359
Date: 2024-04-25
Language of the case: French
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary C-741/22 – 1 
Case C-741/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date of filing:  
2 December 2022 
Referring court or tribunal:  
Court of First Instance of Liège (Belgium) 
Date of the decision to refer:  
18 November 2022 
Applicants:  
Casino de Spa SA and Others 
Defendant:  
Belgian State (SPF Finances) 
      
I. Subject matter of the main proceedings 
1 Twenty-seven companies governed by Belgian law, including Casino de Spa SA, 
which together constitute the ‘VAT unit’ GAMING ARDENT, and which are thus 
regarded as a single taxable person for VAT purposes, operate online games. A 
Belgian federal law of 2016 had abolished the VAT exemption on gambling 
provided electronically. The Cour constitutionnelle (Constitutional Court, 
Belgium) annulled this law by a judgment of 22 March 2018, finding it to be 
contrary to the rules on the division of powers between the Belgian Federal State 
and the Regions (Article 177 of the Belgian Constitution). However, it decided to 
maintain the effects of the annulled statutory provisions as regards the taxes 
already paid for the period from 1 July 2016 to 21 May 2018, in view of the 
budgetary and administrative difficulties which repayment of those taxes would 
cause. The VAT unit GAMING ARDENT (also ‘VATU GAMING ARDENT’ or 
the ‘applicant’) considers that maintaining those effects is contrary to the principle 
of VAT neutrality, in that other forms of gambling are exempt, as well as contrary 
to other rules of EU law, including the prohibition of State aid. The subject matter 
of the case in the main proceedings is an action brought by that VAT unit seeking 
the annulment of a decision of the Belgian tax authorities to make the online 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-741/22 
 
2  
gaming operations carried out by that VAT unit during the specified period 
subject to VAT. 
II. Subject matter and legal basis of the request for a preliminary ruling 
2 The tribunal de première instance de Liège (Court of First Instance of Liège, 
Belgium) considers that, in order to deliver a ruling on the case in the main 
proceedings, it must refer to the Court of Justice of the European Union, under 
Article 267 TFEU, questions relating to (1) the interpretation of the principle of 
fiscal neutrality as regards the levying of VAT on online gaming and the 
exemption from VAT of other games of chance, (2) the temporal limitation of the 
annulment of a law that may be contrary to EU law, and (3) the interpretation of 
the prohibition of State aid as applied to the difference in treatment, for VAT 
purposes, between different types of games of chance. 
III. Questions referred for a preliminary ruling 
1/ Must Article 135(1)(i) of Council Directive 2006/112/EC of 28 November 2006 
on the common system of value added tax and the principle of neutrality be 
interpreted as precluding a Member State from using different treatment for online 
lotteries offered by Loterie Nationale [(the Belgian national lottery)], a public 
establishment, which are exempt from value added tax, and other online games of 
chance offered by private operators, which are subject to value added tax, 
assuming that they are similar supplies? 
2/ In answering the previous question, in order to determine whether there are two 
similar categories which are in competition with each other and which require the 
same treatment for the purposes of value added tax, or whether there are separate 
categories which allow for different treatment, must the national court consider 
only whether or not the two forms of games are in competition with each other 
from the point of view of the average consumer, in the sense that services are 
similar where they have similar characteristics and meet the same needs from the 
point of view of consumers, the test being whether their use is comparable, and 
where the differences between them do not have a significant influence on the 
decision of the average consumer to use one or the other of those services 
(alternative criterion), or must it take into account other criteria such as the 
existence of a discretionary power on the part of the Member State to exempt 
certain categories of games from VAT and to subject others to it, the fact that 
lotteries belong to a distinct category of games, referred to in Article 135(1)(i) of 
the VAT Directive, the different legal frameworks which apply to Loterie 
Nationale and to other games of chance, the different supervisory authorities or 
the societal and gambler protection objectives pursued by the legislation 
applicable to Loterie Nationale? 
3/ Must the principle of sincere cooperation set out in Article 4(3) of the Treaty on 
European Union, read in conjunction with Article 267 of the Treaty on the 
CASINO DE SPA AND OTHERS 
 
3 
Functioning of the European Union, the provisions of Council Directive 
2006/112/EC of 28 November 2006 on the common system of value added tax 
and, where applicable, the principle of effectiveness, be interpreted as meaning 
that they allow the constitutional court of a Member State to maintain – on its own 
initiative and without a reference for a preliminary ruling under Article 267 
TFEU – on the basis of a provision of national law – in this case Article 8 of the 
loi spéciale du 6 janvier 1989 sur la Cour constitutionnelle (Special Law of 
6 January 1989 on the Constitutional Court) – the retrospective effect of national 
provisions on value added tax which were found to be contrary to the national 
Constitution and were annulled on that ground and whose non-conformity with 
EU law was also relied on in support of the action for annulment before the 
national court, without, however, that complaint having been examined by the 
latter, on the general ground of ‘budgetary and administrative difficulties which 
repayment of taxes already paid would cause’, thus completely depriving taxable 
persons subject to VAT of the right to reimbursement of the VAT collected in 
breach of EU law? 
4/ If the answer to the preceding question is in the negative, do the same 
provisions and principles, interpreted, in particular, in the light of the judgment of 
10 April 2008, Marks & Spencer, C-309/06, under which the general principles of 
Community law, including that of fiscal neutrality, give a trader who has made 
supplies a right to recover the sums mistakenly claimed in respect of them 
(judgment of 10 April 2008, Marks & Spencer, C-309/06), require the Member 
State concerned to refund to the taxable persons the VAT collected in breach of 
EU law where, as in the present case, it subsequently follows from a judgment of 
the Court of Justice, in response to questions referred for a preliminary ruling, that 
the annulled national provisions are not in conformity with Council Directive 
2006/112/EC of 28 November 2006 on the common system of value added tax 
and that the decision of the Constitutional Court to maintain the retrospective 
effect of the provisions annulled by it is not in conformity with EU law? 
5/ Does the different treatment introduced by Articles 29, 30, 31, 32, 33 and 34 of 
the loi-programme du 1er juillet 2016 (Programme Law of 1 July 2016), which 
were annulled by Constitutional Court judgment No 34/2018 of 22 March 2018, 
but the effects of which were maintained after that date in respect of the taxes 
already paid for the period from 1 July 2016 to 21 May 201[8], between lotteries, 
whether terrestrial or online, and other online games and forms of betting create a 
selective advantage in favour of the operators of those lotteries and thus aid 
granted by the Belgian State or through Belgian State resources which distorts or 
threatens to distort competition by favouring certain undertakings, which is 
incompatible with the internal market within the meaning of Article 107 of the 
Treaty on the Functioning of the European Union? 
6/ If the answer to the preceding question is in the affirmative, does the obligation 
on the Member States to safeguard the rights of individuals affected by the 
unlawful implementation of the aid in question, in accordance with, inter alia, the 
judgment of 5 October 2006, Transalpine Ölleitung in Österreich, C-368/04, the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-741/22 
 
4  
principle of sincere cooperation and the general principles of Community law, 
including that of fiscal neutrality, which give a trader who has made supplies a 
right to recover the sums mistakenly charged in respect of them (judgment of 
10 April 2008, Marks & Spencer, C-309/06), allow taxable persons who have 
been charged VAT on the basis of unlawful State aid to recover the equivalent of 
the tax paid in the form of damages for the loss suffered? 
IV Legal framework 
A. Provisions of Union law relied on 
Treaty on the Functioning of the European Union 
3 Article 107(1) and (3) TFEU: 
‘1. Save as otherwise provided in the Treaties, any aid granted by a Member 
State or through State resources in any form whatsoever which distorts or 
threatens to distort competition by favouring certain undertakings or the 
production of certain goods shall, in so far as it affects trade between Member 
States, be incompatible with the internal market. 
[…] 
3. The following may be considered to be compatible with the internal market: 
c) aid to facilitate the development of certain economic activities or of certain 
economic areas, where such aid does not adversely affect trading conditions 
to an extent contrary to the common interest; 
[…]’ 
4 Article 108(3) TFEU: 
‘3. The Commission shall be informed, in sufficient time to enable it to submit 
its comments, of any plans to grant or alter aid. If it considers that any such plan is 
not compatible with the internal market having regard to Article 107, it shall 
without delay initiate the procedure provided for in paragraph 2. The Member 
State concerned shall not put its proposed measures into effect until this procedure 
has resulted in a final decision.’ 
Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax 
5 Article 135(1)(i): 
‘1. Member States shall exempt the following transactions: 
CASINO DE SPA AND OTHERS 
 
5 
[…] 
i) betting, lotteries and other forms of gambling, subject to the conditions and 
limitations laid down by each Member State 
[…]’ 
B. Provisions of national law relied on 
Special Law on the Constitutional Court of 6 January 1989 
6 Article 9 of the law states: 
‘1. Annulment judgments delivered by the Constitutional Court shall have the 
force of res judicata as from their publication in the Moniteur Belge. 
2. The judgments delivered by the Constitutional Court whereby actions for 
annulment are dismissed shall be binding on the courts with respect to the points 
of law settled by those judgments.’ 
7 Article 8 of that law states: 
‘If the action is well-founded, the Constitutional Court shall entirely or partially 
annul the statute, decree or rule referred to in Article 134 of the Constitution 
against which the action was instituted. […] 
Where the Court so deems necessary, it shall, by way of a general provision, 
specify which effects of the annulled provisions are to be considered permanent or 
provisionally maintained for the period determined by the Court.’ 
The Value Added Tax Code 
8 Article 44(3)(13) of the Value Added Tax Code (as in force from 1 July 2016 to 
21 May 2018): 
‘The following shall also be exempt from the tax: 
[…] 
13. 
a) lotteries; 
b) other forms of gambling, with the exception of those provided electronically 
as referred to in Article 18(1)(2)(16); 
[…]’ 
Programme Law of 1 July 2016 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-741/22 
 
6  
9 Articles 29, 31 and 34 of the law stated as follows: 
‘Art. 29. Article 1 of the Value Added Tax Code […] is supplemented by a 
paragraph worded as follows: 
“14. For the purposes of this Code: 
1. ‘gambling’ shall mean: 
a) games, under whatever name, which offer the chance to win prizes or 
awards in money or in kind, and in which the players cannot intervene either at 
the beginning, during or at the end of the game, and the winners are determined 
solely by luck or by any other circumstance due to chance; 
b) games, under whatever name, which give participants in a competition of 
any kind the chance to win prizes or awards in money or in kind, unless the 
competition leads to the conclusion of a contract between the winners and the 
organiser of that competition; 
2. ‘lotteries’ shall mean: every circumstance which permits the purchase of lottery 
tickets, to compete for prizes or awards in cash or in kind, where the winners are 
designated by luck or by any other circumstances due to chance, over which they 
cannot exercise any influence.” 
[…] 
Art. 31. In Article 44(3) of the same Code, subparagraph 13[…] is replaced by the 
following: 
“13. a) lotteries; 
b) other forms of gambling, with the exception of those provided electronically as 
referred to in Article 18(1)(2)(16);”. 
[…] 
Art. 34. This Chapter shall enter into force on 1 July 2016.’ 
Law of 19 April 2002 on the rationalisation of the operation and management 
of Loterie Nationale 
10 Article 6 of the law states:  
‘1. The corporate purpose of the limited company governed by public law, Loterie 
Nationale, concerns: 
1. the organisation, in the public interest and in accordance with commercial 
methods, of public lotteries in the form and in accordance with the general rules 
laid down by the King on the Minister’s proposal; 
CASINO DE SPA AND OTHERS 
 
7 
2. the organisation, in the public interest and in accordance with commercial 
methods, of gambling and betting in the form and in accordance with the general 
rules laid down by the relevant provisions of the loi du 7 mai 1999 sur les jeux de 
hasard, les paris, les établissements de jeux de hasard et la protection des joueurs 
[(Law of 7 May 1999 on gambling, betting, gambling establishments and the 
protection of gamblers)], including its implementing decrees, and in accordance 
with the management contract referred to in Article 14;  
3. the organisation of all types of competitions in the form and in accordance 
with the general rules laid down by the King on the Minister’s proposal.’ 
V. Summary of the facts and the procedure in the main proceedings 
11 The companies that form the VAT unit GAMING ARDENT operate online 
games. That activity was exempt from VAT. 
12 However, Articles 29 to 34 of the Program Law of 1 July 2016 repealed the 
exemption from VAT for online gambling other than lotteries. VAT therefore 
became applicable to that activity, with ‘traditional’ gambling and all lotteries 
remaining exempt. 
13 Actions seeking annulment were brought before the Constitutional Court by 
online gambling undertakings and by the Walloon Region. The actions were 
joined. Those actions alleged, first, infringement of the rules on the division of 
powers between the Federal State and the Regions as laid down in Article 177 of 
the Constitution and the loi spéciale du 16 janvier 1989 relative au financement 
des communautés et des régions (Special Law of 16 January 1989 on the 
financing of communities and regions) and, second, infringement of Articles 10, 
11 and 172 of the Constitution, considered in isolation or in conjunction with the 
principle of neutrality applied by the Court of Justice and with Articles 107 and 
108 TFEU and Articles 401 and 135 of the VAT Directive 
14 By a judgment of 22 March 2018, 1 the Constitutional Court held that: 
– the pleas in law alleging infringement of Article 177 of the Constitution, in 
conjunction with Article 3(1)(1) of the Special Law on financing, are well 
founded; 
– Articles 29 to 34 of the Programme Law of 1 July 2016 must be annulled; 
– there is no need to examine the other pleas in law, since they could not lead to a 
more extensive annulment; 
– in view of the budgetary and administrative difficulties which repayment of 
taxes already paid would cause, the effects of the annulled provisions must be 
 
1 C.C., 22 March 2018, 34/2018. www.const-court.be  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-741/22 
 
8  
maintained permanently, pursuant to Article 8 of the Special Law of 6 January 
1989 on the Constitutional Court. 
15 By a judgment delivered on 8 November 2018, 2 the Constitutional Court ruled on 
the interpretation to be given to its annulment judgment of 22 March 2018 and 
stated that: 
– the publication of the judgment in the Moniteur Belge of 22 May 2018 led to 
the retroactive removal of the annulled provisions from the legal order, 
meaning those provisions can no longer constitute the legal basis for making 
gambling provided electronically subject to VAT; 
– the maintaining, by judgment No 34/2018, of the effects of Articles 29 to 34 of 
the Programme Law of 1 July 2016 must therefore be interpreted as meaning 
that the effects of the annulled provisions which are maintained shall be limited 
to the taxes already paid for the period from 1 July 2016 to 21 May 2018. 
16 In view of the annulment of the provisions establishing VAT on online gaming, 
the applicant considered, in its periodic VAT return for September 2019, that the 
VAT paid to the Treasury during the period from 1 July 2016 to 21 May 2018 
should be refunded to it. 
17 It therefore entered this amount of EUR 29 328 371.20 in box 62, ‘Miscellaneous 
VAT adjustments in favour of the declarant’. 
18 Furthermore, given that it was therefore no longer entitled to deduct VAT for this 
period, the applicant entered the amount of VAT deducted during the same period, 
i.e. EUR 13 746 969.14, in box 61. The result of that VAT return was a balance of 
EUR 15 581 402.06 to be paid to the applicant by the Belgian State, taking into 
account the compensation. 
19 The administration disputed the applicant’s reasoning. In a report of 5 December 
2019, it pointed out that the Constitutional Court had limited the decision to 
maintain the effects permanently ‘to taxes already paid’ and concluded that those 
taxes could not be recovered by taxpayers. It thus considered that the amount of 
EUR 29,328,370.36, together with interest, was to be paid to the State. The VAT 
unit was also ordered to pay a proportional fine of EUR 2 932 830.00. 
20 The appellant’s complaint was rejected, save as regards the application for 
remission of fines. Indeed, the fine, which was set at 10% of the taxes in respect 
of which repayment was sought, was reduced to 10% of the net amount of the 
taxes in respect of which repayment was requested (i.e., the difference between 
boxes 62 and 61); it is reduced to the rounded amount of EUR 1 558 140,00. 
 
2 C.C., 8 November 2018, 155/2018. www.const-court.be  
CASINO DE SPA AND OTHERS 
 
9 
21 By application of 12 October 2020, the applicant challenged the tax authority’s 
decision imposing VAT on it, together with the fines and default interest. It seeks 
the annulment and/or full reduction of the sums claimed from it due to 
infringement of the principle of fiscal neutrality of VAT, of Article 107 TFEU 
prohibiting State aid and of the right to repayment of overpaid VAT. 
22 In the alternative, it claims that the Belgian State is liable on account of a fault on 
the part of the Constitutional Court in that maintaining the effects of the annulled 
provisions infringes Article 1 of the First Protocol to the European Convention for 
the Protection of Human Rights and Fundamental Freedoms guaranteeing the 
protection of property. 
23 In the further alternative, it claims that the Belgian State is liable on account of a 
fault on the part of the legislature. 
24 It also seeks the annulment, suspension, remission or, at least, reduction of the 
fine. 
25 The Belgian State, SPF Finances, considers that the claim is unfounded and that it 
cannot be ordered to refund the VAT. 
VI. The essential arguments of the parties to the main proceedings 
26 The applicant puts forward three pleas in law: infringement of the principle of 
fiscal neutrality, infringement of the prohibition on maintaining the provisions 
annulled by the Constitutional Court and infringement of Article 107 TFEU 
prohibiting State aid. 
A. Infringement of the principle of fiscal neutrality 
27 The VATU GAMING ARDENT alleges the existence of a difference in treatment, 
for VAT purposes, between the products (including lotteries) offered online by 
Loterie Nationale (exempt from VAT) and the games and forms of betting 3 
offered online by various private economic operators (subject to VAT). 
28 It cites various judgments of the Court of Justice of the European Union, 
including, in particular, the judgment of 27 June 2019, 4 in which the Court 
recalled the scope of the principle of fiscal neutrality in the following terms: 
 
3 As defined by Article 1(14), annulled, of the VAT Code, the effects of which were maintained 
from 1 July 2016 to 21 May 2018 pursuant to the judgment of the Constitutional Court of 
8 November 2018 in Case 155/2018. 
4 Judgment of 27 June 2019, Belgisch Syndicaat van Chiropraxie and Others (C-597/17, 
EU:C:2019:544). 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-741/22 
 
10  
‘28. In the second place, the Member States must observe the principle of 
fiscal neutrality, which precludes treating similar supplies, which are thus in 
competition with each other, differently for VAT purposes (judgment of 
27 April 2006, Solleveld and van den Hout-van Eijnsbergen, C-443/04 and 
C-444/04, EU:C:2006:257, paragraph 39 and the case-law cited). 
[…]  
47. The principle of fiscal neutrality precludes treating similar supplies of 
services, which are thus in competition with each other, differently for VAT 
purposes (judgments of 11 September 2014, K, C-219/13, EU:C:2014:2207, 
paragraph 24, and of 9 March 2017, Oxycure Belgium, C-573/15, 
EU:C:2017:189, paragraph 30).’ 
29 It concludes that that difference in treatment infringes the principle of neutrality, 
in that those two supplies of services are similar because: 
• they have similar characteristics and meet the same needs from the point of 
view of consumers, the test being whether their use is comparable, 
• the differences between them do not have a significant influence on the 
decision of the average consumer to use one or the other of those services. 
30 For its part, the Belgian State takes the view that the difference in treatment 
between lotteries and online gambling is justified, with the result that there is no 
infringement of the principle of fiscal neutrality, since the former constitute a 
category that is separate from and not similar to other games. 
31 In support of its position, the Belgian State relies on the following considerations: 
• the existence of a discretionary power on the part of Member States to 
exempt certain categories of games and to subject others to VAT; 
• the fact that lotteries belong to a distinct category of games, referred to in 
Article 135(1)(i) of the VAT Directive; 
• the different legal frameworks that apply to Loterie Nationale and other 
games of chance; 
• the different supervisory authorities; 
• the societal and gambler protection objectives pursued by the legislation 
applicable to Loterie Nationale. 
CASINO DE SPA AND OTHERS 
 
11 
B Infringement of the prohibition on maintaining the provisions annulled 
by the Constitutional Court 
32 The VATU GAMING ARDENT submits that while, in principle, the decision to 
maintain the effects of an act lies ultimately with the Constitutional Court, this 
remains subject to compliance with the European law applicable to the dispute at 
issue and raised before it. A decision by the Constitutional Court to maintain such 
effects that infringes European law remains, like any act of the State, vitiated by a 
defect of law which does indeed allow the courts to rule on that defect in law. 
33 The Belgian State takes the view that, since the decision to maintain the effects 
of an act ultimately lies with the Constitutional Court alone, it is not for the court 
or the parties to rule on the expediency and reasoning of the adjustment of the 
effects over time in annulment judgment No 34/2018. 
34 It also submits that, since the Constitutional Court did not rule on a possible 
infringement of the principle of fiscal neutrality in relation to VAT, the force of 
res judicata does not apply to that point of law on which it has not ruled. Since the 
statutory provisions were annulled because they were adopted in breach of the 
rules on the division of powers and those statutory provisions did not constitute an 
incorrect transposition or infringement of Directive 2006/112/EC, the 
Constitutional Court, pursuant to Article 8(3) of the Special Law, was entitled to 
maintain the effects of those annulled provisions. In taking that decision, it was 
neither in conflict with nor in breach of the settled case-law of the Court of 
Justice. 
C. Infringement of Article 107 TFEU prohibiting State aid 
35 The VATU GAMING ARDENT recalls that, in order for an advantage to be 
regarded as State aid, four constituent elements are required: 
1. the aid must be public: the aid must, first, be attributable to the State 
and, second, be granted through the resources of the Member State; 
2. the economic advantage must be selective and not general, i.e. it must 
favour certain undertakings or the production of certain goods;  
3. the aid must affect competition; 
4. the aid must affect trade within the European Union. 
36 It takes the view that the tax exemption for the provision of online services by 
Loterie Nationale satisfies those four conditions. 
37 The VATU GAMING ARDENT therefore considers that this amounts to fiscal 
aid which was not notified to the Commission pursuant to Article 108(3) TFEU. 
That aid is therefore unlawful. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-741/22 
 
12  
38 The Belgian State takes the view that the legal field of VAT is unrelated to the 
legal field governing State aid. 
VII. Presentation of the reasoning in the reference for a preliminary ruling 
A. Infringement of the principle of fiscal neutrality 
39 In the actions for annulment lodged with the Constitutional Court, pleas in law 
alleging infringements of Articles 10, 11 and 172(1) of the Constitution, read 
alone or in conjunction with Article 135(1)(i) of Directive 2006/112/EC and the 
principle of fiscal neutrality, or with Article 107 TFEU, were raised. The 
Constitutional Court did not examine them ‘since they could not lead to a more 
extensive annulment’. 
40 In the light of the case-law of the Court of Justice, the referring court nevertheless 
raises the question of whether the decision, by the Constitutional Court, to 
maintain the effects of the annulled provisions for the period from 1 July 2016 to 
21 May 2018 is compatible with the principle of fiscal neutrality. It is appropriate, 
first of all, to examine the scope of the principle of fiscal neutrality in the context 
of lotteries, gambling and betting. 
41 In his Opinion of 15 June 2017, 5 Advocate General SZPUNAR summarised the 
scope of the principle of neutrality in the context of the exemption of games of 
chance as follows: ‘In Rank Group, the Court held that a difference in treatment 
for the purposes of VAT of two supplies of services which are identical or similar 
from the point of view of the consumer and meet the same needs of the consumer 
is sufficient to establish an infringement of the principle of fiscal neutrality in the 
context of the exemption for gaming laid down in Article 135(1)(i) of the VAT 
Directive. The question whether the activity in question constituted “betting, 
lotteries and other forms of gambling” therefore depended on a market-orientated 
approach: if customers regard the services as similar, they need to be taxed the 
same way.’ 
42 Under Belgian law, the Law of 7 May 1999 on gambling, betting, gambling 
establishments and the protection of gamblers does not apply to lotteries because 
they have been expressly excluded by the legislature from its scope under 
Article 3bis of that law. Lotteries are covered by the loi du 31 décembre 1851 sur 
les loteries (Law of 31 December 1851 on lotteries) and the la loi du 22 juillet 
1991 relative à la Loterie nationale (Law of 22 July 1991 on Loterie Nationale). 
43 Under Belgian law, Loterie Nationale, a public establishment, enjoys a statutory 
monopoly in the organisation of lotteries. However, the corporate purpose of 
 
5 Opinion of Advocate General Szpunar in case The English Bridge Union (C-90/16, 
EU:C:2017:464, paragraph 19). 
CASINO DE SPA AND OTHERS 
 
13 
Loterie Nationale also relates to the organisation of all forms of gambling and 
betting. 
44 Gambling and betting services offered online by economic operators governed by 
private law are monitored by the Gambling Commission. Loterie Nationale is 
under the control of the Belgian State. In particular, Loterie Nationale must 
conclude a management contract with the Belgian State (Article 14 of the Law of 
19 April 2002). That management contract imposes various obligations on Loterie 
Nationale, a body operating in the public interest. It is established that Loterie 
Nationale is responsible for organising lotteries, competitions, gambling and 
betting in the public interest and in accordance with commercial methods (see 
Article 3(3) of the Law of 19 April 2002). 
45 The management contract lays down the detailed rules for calculating and paying 
the monopoly annuity, special contributions and the percentage of pre-tax profits, 
which is levied annually: 
• for the purpose of financing aid programmes for developing countries 
(‘Loterie Nationale Subsidy’), 
• for public service purposes defined in meetings of the Council of Ministers, 
• and for the annual allocation to the Caisse nationale des calamités (National 
Disaster Fund), the King Baudouin Foundation and the Fonds belge de 
survie (Belgian Survivor Fund). 
46 The legal framework of Loterie Nationale imposes various measures for the 
protection of individuals (informing the general public of the actual chances of 
winning for each type of product offered and organising information campaigns 
on the economic, social and psychological risks associated with addiction to 
gambling). 
47 Moreover, according to the Belgian State, the rate of redistribution – representing 
the proportion of money paid back to players on all stakes – is significantly 
different for lottery games (low rate of player return: between 50% and 60%) 
compared to other games of chance (high rate of return: 95% and higher). 
48 The Belgian State concludes that lotteries constitute a separate category of games 
on the basis of Article 135(1)(i) of the VAT Directive. 
49 The VATU GAMING ARDENT highlights the fact that the Loterie Nationale’s 
website offers a similar gaming environment to that offered by the websites of 
online gaming undertakings governed by private law. It refers to the organisation 
on the Loterie Nationale’s website of e-games similar to games provided by other 
online operators. Lastly, referring to the case-law of the Court of Justice, it notes 
that the Belgian State itself, in particular through its highly offensive advertising 6 
 
6 See additional and summary conclusions, p. 21 et seq. ‘become scandalously rich’. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-741/22 
 
14  
‘pursues policies of expanding supply, of such a nature as to develop and 
stimulate gaming activities, in particular with a view to maximising revenue from 
the latter’. 7 
50 Article 135(1)(i) of Directive 2006/112 left broad discretion to the Member States 
as regards the exemption or taxation of gambling services, since it allows those 
States to fix the conditions and the limitations to which entitlement to that 
exemption may be made subject. The power of the Member States to fix the 
conditions and limitations for the exemption from VAT provided for by that 
provision allows them to exempt from that tax only certain forms of gambling. 8 
51 In its judgment of 24 March 1994, Schindler (C-275/92, EU:C:1994:119), the 
Court of Justice decided that the particular features of lotteries (the size of the 
amounts which can be staked and of the winnings which they can hold out to the 
players, risk of fraud, incitement to spend and the financing of benevolent or 
public interest activities) justify national authorities having a sufficient degree of 
latitude to determine what is required to protect the players and, more generally, 
in the light of the specific social and cultural features of each Member State, to 
maintain order in society, as regards the manner in which lotteries are operated, 
the size of the stakes, and the allocation of the profits they yield. That judgment 
was delivered in relation to the freedom to provide services. 
52 In its order of 18 May 2021, Fluctus and Others (C-920/19, not published, 
EU:C:2021:395), also delivered in relation to the freedom to provide services, the 
Court of Justice pointed out that: ‘Article 56 TFEU must be interpreted as not 
precluding a dual system of organisation of the market for games of chance on the 
sole ground that the advertising practices of the holder of the monopoly on lottery 
products and casino games aim at encouraging active participation in gambling, 
for example by trivialising gambling, by 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.’ 
53 In its judgment of 10 November 2011, The Rank Group (C-259/10 and C-260/10, 
EU:C:2011:719), delivered on that occasion in relation to VAT, the Court of 
Justice also pointed out, with regard to the comparability of bingos and slot 
machines, that: 
‘49. It follows that the differences in the legal systems relied on by the referring 
courts are of no relevance to the assessment of the comparability of the games 
concerned. 
 
7 CJEU, judgment of 8 September 2010, Carmen Media Group (C-46/08, EU:C:2010:505), 
judgment delivered in relation to the freedom to provide services. 
8 CJEU, judgment of 10 June 2010, Leo-Libera (C-58/09, EU:C:2010:333). 
CASINO DE SPA AND OTHERS 
 
15 
50. That outcome is not called into question by the fact that, in certain exceptional 
cases, the Court has accepted that, having regard to the specific characteristics of 
the sectors in question, differences in the regulatory framework or the legal 
regime governing the supplies of goods or services at issue, such as whether or 
not a drug is reimbursable or whether or not the supplier of a service is subject to 
an obligation to provide a universal service, may create a distinction in the eyes 
of the consumer, in terms of the satisfaction of his own needs (Case 
C-481/98 Commission v France, paragraph 27, and Case C-357/07 TNT Post UK 
[2009] ECR I-3025, paragraphs 38, 39 and 45). 
51. Having regard to the foregoing considerations, the answer to question 1(a) in 
Case C-259/10 and to the first question in Case C-260/10 is that, where there is a 
difference in treatment of two games of chance as regards the granting of an 
exemption from VAT under Article 13B(f) of the Sixth Directive, the principle of 
fiscal neutrality must be interpreted as meaning that no account should be taken 
of the fact that those two games fall into different licensing categories and are 
subject to different legal regimes relating to control and regulation.’ 
54 In its judgment of 10 June 2010, Leo-Libera (C-58/09, EU:C:2010:333), delivered 
in relation to VAT, the Court of Justice, on that occasion, pointed out that: ‘35. 
That principle cannot, if it is not to deprive Article 135(1)(i) of Directive 
2006/112 and the broad discretion which that provision grants to Member States 
of all effectiveness, be interpreted as precluding one form of gambling from being 
exempt from the payment of VAT while another form of gambling is not, in so 
far, however, as the two forms of gambling are not in competition with one 
another.’ 
55 In the present case, in the light of the Court of Justice’s case-law, it is difficult to 
interpret EU law, which justifies referring the first two questions for a preliminary 
ruling. 
B Infringement of the prohibition on maintaining the provisions annulled 
by the Constitutional Court 
56 In its judgment of 27 June 2019, Belgisch Syndicaat van Chiropraxie and Others 
(C-597/17, EU:C:2019:544), the Court of Justice recalled in these terms the 
conditions for a Member State to uphold a provision contrary to EU law: 
‘59. Even assuming that overriding considerations of legal certainty were capable 
of leading, by way of exception, to a provisional suspension of the ousting effect 
which a directly applicable rule of EU law has on national law that is contrary 
thereto, such a suspension must be excluded from the outset in this case, in so far 
as the referring court has not mentioned any concrete evidence capable of 
establishing specific potential legal uncertainty (see, by analogy, judgment of 
8 September 2010, Winner Wetten, C-409/06, EU:C:2010:503, paragraph 67).’ 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-741/22 
 
16  
57 If it transpires that Articles 29 to 34 of the Programme Law of 1 July 2016 did in 
fact infringe the principle of neutrality in relation to VAT (see the first plea in 
law), it is necessary to examine whether paragraph B.16. of judgment No 34/2018 
of the Constitutional Court, by maintaining the effects of Articles 29 to 34 of the 
Programme Law of 1 July 2016 even after their annulment, also infringes EU law, 
in that it maintains the effects of those articles ‘in view of the budgetary and 
administrative difficulties which repayment of taxes already paid would cause’, 
even if the annulment is based on infringement of national provisions 
(infringement of the internal rules on the division of powers) and not European 
provisions. 
58 In addition, does such an infringement entitle the taxpayer to repayment of taxes 
maintained in breach of Directive 2006/112/EC, the principle of fiscal neutrality 
and Article 4(3) TEU? 
59 Indeed, in its judgment of 10 April 2008, Marks & Spencer (C-309/06, 
EU:C:2008:211, paragraph 36), the Court of Justice held that the general 
principles of Community law, including that of fiscal neutrality, give a trader who 
has made such supplies a right to recover the sums mistakenly charged in respect 
of them. 
60 Accordingly, it is appropriate to refer the third and fourth questions to the Court of 
Justice for a preliminary ruling. 
C. Infringement of Article 107 TFEU prohibiting State aid 
61 State aid can be defined as follows: ‘Any selective advantage which the State in 
the broad sense confers on one (or more) undertaking(s) which may alter the 
conditions of competition and affect trade within the European Union’. 9 
62 In the case of State aid of a fiscal nature, one of the conditions ‘to be satisfied is 
that the advantage must be financed directly or indirectly through State 
resources; in other words, the advantage must give rise to a burden on public 
finances, which may take the form of expenditure or revenue loss, as is the case, 
for example, with tax exemptions’. 
63 Thus, ‘there are a number of measures which may constitute aid, passing both the 
test of being attributable to the State, in the broad sense of the term, and the test 
of financing, in which case there is a cost to public resources. All tax concessions 
and exemptions, subsidies, deferrals, aid in the form of guarantees (loan 
 
9 P.-M. SABBADINI, Les aides d’État – Aspects juridiques et économiques, Brussels, Larcier, 
2015, p. 29. 
CASINO DE SPA AND OTHERS 
 
17 
guarantees on preferential terms), public shareholdings in the capital of 
undertakings, etc. may thus be regarded as aid’. 10 
64 The VAT exemption for online lotteries organised by Loterie Nationale could 
therefore theoretically fall within the definition of State aid within the meaning of 
Article 107 TFEU if the conditions referred to above are satisfied. 
65 That measure was not notified by the Belgian State to the European Commission 
pursuant to Article 108(3) TFEU. 
66 The national courts must therefore rule on the classification of the measure 
concerned as State aid within the meaning of the TFEU and verify whether the 
four conditions recalled by the VATU GAMING ARDENT are, in this case, 
satisfied. 
67 To answer the question of whether the aid is selective or affects competition or 
trade within the European Union, it is necessary, first, to answer the question of 
whether the services supplied by undertakings that are in competition on the same 
market are indeed comparable. The Court of First Instance refers to the arguments 
made in relation to the first plea in law. 
68 It is necessary, in particular, to examine whether the market position of the 
beneficiary undertaking is strengthened or, at the very least, maintained in relation 
to its competitors. 11 The Belgian State has noted (see above) that, due to the 
philanthropic aims pursued by Loterie Nationale, the rate of redistribution would 
be significantly different for lottery games (low rate of return for players: between 
50% and 60%) compared to other games of chance (high rate of return: 95% and 
higher). The Court of First Instance wonders, in particular, whether this element is 
to be taken into consideration, since it is not a given that the tax exemption 
strengthens Loterie Nationale’s own financial capacities and, consequently, its 
capacity to impose itself on a competitive market. However, the tax exemption 
measure enables Loterie Nationale not to pass on the VAT to the final 
consumers/players. 
69 It is necessary, moreover, to examine whether Article 135(1)(i) of Directive 
2006/112 and the broad discretion which that provision grants to Member States 
to exempt a form of gambling, even though another form is not, is capable of 
influencing the definition of State aid in the context of games of chance and 
betting. 
 
10 Papadamaki, I., ‘Introduction’ in Les aides d’État de nature fiscale en droit de l’Union 
européenne, first edition, Brussels, Bruylant, 2018, pp. 21-62. 
11 L. VOGEL, ‘Chapitre 1 – Aide prohibée’, in Traité de droit économique, Brussels, Bruylant, 
2015, p. 752. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-741/22 
 
18  
70 This poses a challenge with respect to the interpretation of EU law. Accordingly, 
it is appropriate to refer the fifth and sixth questions to the Court of Justice for a 
preliminary ruling.