Order — ECLI:EU:C:2019:477
Date: 2019-06-04
Language of the case: Hungarian
Court formation: Ninth Chamber
Subject matter: Freedom to provide services;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Hungary

Translation C-665/18 — 1 
Case C-665/18 
Request for a preliminary ruling 
Date lodged: 
23 October 2018 
Referring court: 
Fővárosi Közigazgatási és Munkaügyi Bíróság (Administrative and 
Labour Court, Budapest, Hungary) 
Date of the decision to refer: 
9 October 2018 
Applicant: 
Pólus Vegas Kft. 
Defendant: 
Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága (Appeals 
Directorate of the National Taxation and Customs Authority) 
  
Fővárosi Közigazgatási és Munkaügyi Bíróság (Administrative and Labour 
Court, Budapest, Hungary) 
[…] 
Order 
This court submits to the Court of Justice of the European Union a request for a 
preliminary ruling in the course of an action for judicial review of a tax decision 
issued in proceedings between the applicant [...] Pólus Vegas Kft. ([...] Budapest 
[...]) and the defendant [...] Nemzeti Adó- és Vámhivatal Fellebbviteli 
Igazgatósága (Appeals Directorate of the National Taxation and Customs 
Authority) ([...] Budapest [...]). 
[...] [matter of domestic legal procedure] 
This court refers the following questions to the Court of Justice of the European 
Union for a preliminary ruling: 
EN 
REQUEST FOR A PRELIMINARY RULING OF 23.10.2018 — CASE C-665/18  
 
2  
 
(1) May paragraphs 39 to 42 of the judgment delivered by the Court of Justice 
of the European Union in Case C-98/14 be interpreted as meaning that the fact 
that domestic legislation increases five-fold the fixed-rate tax on gaming, without 
providing for any transitional arrangements, while at the same time introducing a 
proportional tax on gaming, constitutes a restriction on the freedom to provide 
services under Article 56 TFEU? 
(2) May the terms ‘impede’ or ‘render less attractive’ which are used in the 
judgment in Case C-98/14 be interpreted — having regard to and in application of 
Additional Protocol No 1 to the European Convention on Human Rights (ECHR) 
and Article 17 of the Charter of Fundamental Rights of the European Union — as 
meaning that an unjustified and unreasonable increase in the tax on gaming in a 
Member State deprives the organisers of games of chance in amusement arcades 
of their profits in a disproportionate and discriminatory fashion which distorts 
competition in favour of casinos and infringes the aforementioned Additional 
Protocol to the ECHR and Article 17 of the Charter of Fundamental Rights of the 
European Union? 
(3)  May the content of the judgment delivered in Case C-98/14 be interpreted as 
meaning that the fact that the operation of gaming machines ceases to be 
profitable and may be carried on only at a loss as a result of an unjustified and 
unreasonable increase in the tax on gaming warrants the assessment that that 
increase has the effect of ‘impeding’ that activity or ‘rendering it less attractive’? 
(4) In the context of the implementation in the Member State of the judgment 
delivered in Case C-98/14, may the freedom to provide services be interpreted as 
meaning that amusement arcades and casinos operated in a Member State must, in 
principle, be assumed to entail an EU cross-border component consisting in the 
fact that EU citizens from other Member States may also make use of the gaming 
opportunities in question? 
[...] [matter of domestic legal procedure] [Or. 2] 
Grounds: 
As an undertaking organising games of chance, the applicant, up until 10 October 
2012, operated slot machines in amusement arcades, and was liable to payment of 
the tax on gaming in accordance with Paragraph 33 of the a szerencsejáték 
szervezéséről szóló 1991. évi XXXIV. törvény (Law XXXIV of 1991 on the 
organisation of games of chance). 
Paragraph 27 of the az államháztartás stabilitását elősegítő, az egyes adótörvények 
módosításáról szóló 2011. évi CXXV törvény (Law CXXV of 2011 amending 
certain tax laws in relation to the promotion of budgetary stability), Paragraph 14 
of the az egyes adótörvények és az azzal összefüggő egyéb törvények 
módosításáról szóló 2011. évi CLVI törvény (Law CLVI of 2011 amending 
certain tax laws and other laws related to these) and Paragraph 30(13), point 6, of 
the a Magyarország 2012. évi költségvetését megalapozó egyes törvények 
PÓLUS VEGAS 
 
3 
 
módosításáról szóló 2011. évi CLXVI. törvény (Law CLXVI of 2011 amending 
certain laws serving as the basis for the Hungarian budget for the year 2012) 
increased with effect from November 2011 the fixed-rate tax on gaming payable 
on slot machines from HUF 100 000 to HUF 500 000 — a five-fold increase, in 
other words — and, in addition, introduced with effect from 1 January 2012 a 
quarterly tax on gaming, at a rate of 20%, payable on net income from gaming in 
excess of HUF 900 000. 
The applicant considers that that legislation infringes a binding provision of EU 
law, namely Article 56 TFEU, which forms an integral part of the Hungarian legal 
system. 
On 12 October 2016, the applicant, acting in the light of the delivery of the 
judgment of the Court of Justice of 11 June 2015, Berlington Hungary and Others 
(C-98/14, EU:C:2015:386), submitted to the first-tier tax authority a request for a 
declaration of regularisation. In that request, it asked the tax authority to declare 
that the aforementioned legislation infringed a binding provision of EU law, that 
is to say Article 56 TFEU, and to order the amendment, by way of regularisation, 
of the tax rate difference, in accordance with the values presented by the 
applicant.  
By its decision [...] of 13 February 2017, the first-tier tax authority rejected the 
request for a declaration, on the ground that the judgment of the Court of Justice 
relied on by the applicant did not expressly find that the Hungarian legislation 
infringed EU law, but simply offered guidance on how to assess that legislation, 
making clear the task falling to the Hungarian court of ascertaining whether the 
criteria set out in that judgment were met. According to the first-tier tax authority, 
it is not empowered to revise provisions of national law which it has an obligation 
to apply. 
The applicant challenged that decision before the defendant, which, by its decision 
[...], confirmed the decision of the first-tier authority on the ground that it 
considered the latter’s findings of fact to be correct and its conclusions to be well 
founded. 
The applicant brought an action for judicial review of both decisions in which it 
again claimed that the latter were unlawful inasmuch as they failed to take into 
account the provisions of Article 56 TFEU and the findings contained in the 
judgment of the Court of Justice of 11 June 2015, Berlington Hungary and Others 
(C-98/14, EU:C:2015:386). 
The national court before which this case is pending considers it necessary, in 
order to dispose of the substance of the matter, to obtain a preliminary ruling from 
the Court of Justice on the questions set out above, in the light in particular of the 
inconsistent interpretation by the national courts of the judgment delivered in Case 
C-98/14. Consequently, the request for a preliminary ruling is necessary in the 
REQUEST FOR A PRELIMINARY RULING OF 23.10.2018 — CASE C-665/18  
 
4  
 
interests of the uniform application of EU law, legal certainty and the correct 
application of Article 56 TFEU. [Or. 3] 
The outcome of the preliminary ruling proceedings — that is to say, a more exact 
and precise clarification and definition of the concepts in question (‘hinder’, 
‘render less attractive’ and ‘prohibit’) — is necessary in any event, in the light in 
particular of the uncertainty arising from the brevity of those concepts and the 
many potential interpretations to which they are open, and in order to ensure that 
the application of EU law does not give rise to uncertainty or undesirable legal 
inconsistency. 
For that reason, the referring court needs the Court of Justice to provide further 
guidance with respect to the criteria, circumstances, facts, contexts and 
consequences in the presence of which, in the factual scenario set out above, [the 
freedom to provide services] can, if appropriate, be said to be ‘prohibited’, 
‘impeded’ or ‘rendered less attractive’ (for example, whether the fact that a tax 
increase in a Member State causes an activity which has previously been 
unequivocally and continuously profitable to become loss-making supports the 
assessment that those consequences are present). 
Provisions of law applicable to the dispute: 
Article 56 of the Treaty on the Functioning of the European Union; 
Additional Protocol No 1 to the European Convention on Human Rights; 
Article 17 of the Charter of Fundamental Rights of the European Union; 
Paragraph 33 of the az 1991. évi XXXIV. törvény (Law XXXIV of 1991 on the 
organisation of games of chance); 
Paragraph 27 of the a 2011. évi CXXV. törvény (Law CXXV of 2011 amending 
certain tax laws in relation to the promotion of budgetary stability); 
Paragraph 393(14) of the a 2011. évi CLVI. törvény (Law CLVI of 2011 
amending certain tax laws and other laws relating to these); 
Paragraph 30(13), point 6, of the a 2011. évi CLXVI. Törvény (Law CLXVI of 
2011 amending certain laws serving as the basis for the Hungarian budget for the 
year 2012). 
[...] [matters of domestic legal procedure] 
Budapest, 9 October 2018. 
[…] [signatures]