Judgment — ECLI:EU:C:2010:308
Date: 2010-06-03
Language of the case: Dutch
Court formation: Second Chamber
Subject matter: Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment 1. Freedom to provide services – Restrictions – Games of chance (Art. 49 EC) 2. Freedom to provide services – Restrictions – Games of chance (Art. 49 EC) 3. Freedom to provide services – Restrictions – Games of chance (Art. 49 EC) 1. National legislation which seeks to curb addiction to games of chance and to combat fraud, and which in fact contributes to the achievement of those objectives, can be regarded as limiting betting activities in a consistent and systematic manner even where the holder(s) of an exclusive licence are entitled to make what they are offering on the market attractive by introducing new games and by means of advertising. It is for the national court to determine whether unlawful gaming activities constitute a problem in the Member State concerned which might be solved by the expansion of authorised and regulated activities, and whether that expansion is on such a scale as to make it impossible to reconcile with the objective of curbing such addiction. (see para. 38, operative part 1) 2. For the purpose of applying legislation of a Member State on games of chance which is compatible with Article 49 EC, the national courts are not required to determine, in each case, whether the implementing measure intended to ensure compliance with that legislation is suitable for achieving the objective of that legislation and is compatible with the principle of proportionality, in so far as that measure is necessary to ensure the effectiveness of that legislation and does not include any additional restriction over and above that which arises from the legislation itself. Whether that implementing measure was adopted as a result of action by the public authorities to ensure compliance with national legislation or of an application by an individual in the context of a civil action to protect his rights under that legislation has no bearing on the outcome of the dispute before a national court. (see para. 50, operative part 2) 3. Article 49 EC must be interpreted as not precluding legislation of a Member State under which exclusive rights to organise and promote games of chance are conferred on a single operator, and which prohibits any other operator, including an operator established in another Member State, from offering via the internet services within the scope of that regime in the territory of the first Member State. Since the internet gaming industry has not been the subject of harmonisation within the European Union, a Member State is entitled to take the view that the mere fact that an 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, is not 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. In the light of the specific features associated with the provision of games of chance via the internet, that restriction may therefore be regarded as justified by the objective of combating fraud and crime. (see paras 54-55, 57-58, operative part 3)