Order — ECLI:EU:C:2019:1
Date: 2019-01-09
Language of the case: German
Court formation: Seventh Chamber
Subject matter: Freedom to provide services
Procedure: Reference for a preliminary ruling - inadmissible
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: 
6 July 2018 
Referring court or tribunal: 
Landesverwaltungsgericht Steiermark (Austria) 
Date of the decision to refer: 
2 July 2018 
Appellants: 
Fluctus s.r.o. 
Fluentum s.r.o. 
SD 
Defendant authority: 
Landespolizeidirektion Steiermark  
Subject matter of the main proceedings 
Setting-aside of measures under administrative criminal law imposed by reason of 
infringement of the Austrian gambling monopoly 
Subject matter and legal basis of the reference 
Interpretation of EU law, Article 267 TFEU 
Questions referred 
1. Is the freedom to provide services (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 monopoly, the relevant issue is whether there has in fact 
been a growth in the gambling market considered overall in the relevant period, or 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-444/18 
 
2  
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 the freedom to provide services also to be interpreted as meaning that 
such impermissible advertising practices on the part of the 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, 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? 
3. Is a national court which is called upon, within the scope of its jurisdiction, 
to apply the provisions on the freedom to provide services 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 
TFEU, in particular Article 56 et seq. 
Provisions of national legislation cited 
Bundes-Verfassungsgesetz (Federal Constitutional Law), in particular Article 7 
Glücksspielgesetz (Law on Gambling; ‘the GSpG’), in particular Paragraphs 2, 3, 
4, 14, 17, 21, 24, 50, 52, 53, 54 and 56 
Brief summary of the facts and procedure 
Following checks carried out in bars and restaurants, the machines found on those 
premises, in each case installed without an official permit (‘licence’) required 
under the Law on Gambling, were seized. Administrative penalty proceedings 
were subsequently instituted against the appellants and fines totalling 
EUR 480 000 were imposed. Appeals against the seizure orders and penalties 
were filed timeously with the Landesverwaltungsgericht Steiermark (Regional 
Administrative Court, Styria). 
FLUCTUS AND FLUENTUM 
 
3 
Brief summary of the basis for the reference 
1 The Landesverwaltungsgericht Steiermark has doubts as to the compliance with 
EU law of the licence holders’ advertising practices. 
2 The foreign connection required pursuant to Article 56 et seq. TFEU exists in so 
far as, firstly, a limited liability company with its registered office in another 
Member State of the European Union (Bratislava, Slovakia) is involved in the 
main proceedings and, secondly, what is known as ‘reverse discrimination’ or 
‘discrimination against nationals’ would be threatened in the case of non-
compliance with EU law, because the restrictions connected with the monopoly 
system of the GSpG would then fail to take effect only in relation to nationals of 
another Member State, whereas Austrian nationals would still have to comply 
with them in purely domestic matters. 
3 Legal requirements relating to advertising for gambling are worded only in a very 
non-specific manner in the Austrian Law on Gambling (GSpG). Media laws do 
not contain any specific guidelines in respect of gambling. Advertising measures 
are officially regulated by the Kommunikationsbehörde Austria (Austrian 
Communications Authority), and the advertising industry is generally self-
regulated through the Österreichischer Werberat (Austrian Advertising Council). 
The latter defines games of chance as a non-child-appropriate product, which is 
why gambling advertising may not target children and adolescents. Self-regulation 
measures of individual providers include self-restriction guidelines for advertising 
activities and other ‘Responsible Gaming’ player-protection measures. 
4 The Austrian Law on Gambling contains advertising-relevant provisions in only 
two places: 
‒›  According to Paragraph 17(7) of the GSpG, lottery licensees are obliged to 
provide general media support. However, there is no advertising obligation for the 
operators of casinos. 
‒›  A definite restriction in relation to the content of gambling advertising is 
currently to be found only in Paragraph 56(1) of the GSpG. According to that 
provision, licensees and permit holders must ‘maintain a responsible standard’ in 
their advertising. The supervision route is exclusively provided for compliance 
with this standard of responsibility, whereas action under Paragraph 1 et seq. of 
the Bundesgesetz gegen den unlauteren Wettbewerb (Federal Law against Unfair 
Competition; ‘the UWG’) is expressly excluded. 
5 By decisions of March, October and November 2016, all three Austrian Supreme 
Courts confirmed that the Austrian gambling monopoly is EU-law compliant. As a 
restriction of the freedom to provide services, 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 
(imperative requirement in the general interest). Particular consideration is given 
to consumer protection, combating fraud and preventing the incitement of citizens 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-444/18 
 
4  
to squander money on gambling (cf. Court of Justice, judgment of 6 November 
2003, C-243/01, Gambelli, paragraph 65 et seq.; Court of Justice, judgment of 
8 September 2010, C-46/08, Carmen Media, paragraph 55). In the scope of the 
examination of proportionality, it is then first examined whether the national 
measure is in fact suitable for achieving the legitimate objective. 
6 The Court of Justice makes the admissibility under EU law of the gambling 
monopoly conditional not only on the objective of the legislature, but also on the 
actual effect of the regulations (cf. C-347/09, Dickinger/Ömer, paragraph 65). 
Therefore, the examination 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 the licensees and permit holders have to maintain a 
responsible standard in their advertising, but must also consider the actual effects 
of that provision. 
7 In the scope of the assessment of the suitability of a gambling monopoly, the 
coherence of the national legislation (Court of Justice, C-243/01, Gambelli, 
paragraph 65 et seq.; Court of Justice, 30 April 2014, C-390/12, Pfleger, 
paragraph 56) is of great significance. In the event that the suitability is 
confirmed, the Court of Justice secondly assesses the necessity and, where 
appropriate, assesses, thirdly, the appropriateness of the restriction. In the opinion 
of the Court of Justice, national legislation will be 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 (Court of Justice, C-390/12, Pfleger, paragraph 56). 
8 Also connected with the demand for coherence are requirements relating to the 
advertising carried out by the holder of a monopoly or a licensee, which the Court 
of Justice has clarified in several decisions, particularly in the judgments of 3 June 
2010, C-258/08, Ladbrokes, paragraph 27 et seq.; of 8 September 2010, Joined 
Cases C-316/07, C-358/07 to C-360/07, C-409/07 and C-410/07, Stoß and Others, 
paragraph 103; of 30 June 2011, C-212/08, Zeturf, paragraphs 48, 66, 72 and 82; 
of 15 September 2011, C-347/09, Dickinger/Ömer, paragraphs 57, 66, 68 and 69; 
and of 24 January 2013, C-186/11 and C-209/11, Stanleybet and Others, 
paragraphs 33 and 34). It follows that the national legislature must also regulate 
and monitor the advertising activities of the monopolist. 
9 According to some sections of academic comment, the responsible standard 
required is not met in the case of the advertising for gambling. There is criticism 
of the exclusivity for a predominantly private provider (the licence holders are 
Österreichische Lotterien GmbH and Casinos Austria AG) which is only 
superficially regulated, if at all, and, above all concerning offer expansion and 
aggressive advertising, is not obliged to comply with any supervisory restrictions, 
contrary to EU law. 
FLUCTUS AND FLUENTUM 
 
5 
10 The Landesverwaltungsgericht Steiermark is of the opinion that the requirements 
established by the Court of Justice in respect of the admissibility of a gambling 
monopoly are not satisfied against the background of the Austrian legal situation, 
on the one hand, (consistency) and of the commercial policy of the sole licensee 
for lotteries (extensive advertising practice), on the other. 
11 It may firstly be assumed that the licence holder’s expansionist policy, 
accompanied by intensive advertising expenditure, is plainly and obviously 
contrary to the clear requirements posited by the Court of Justice, because the 
protection of consumers from incitement to squander money on gambling, as 
required by the Court of Justice, is virtually counteracted by that policy. The 
limits defined by the Court of Justice in the judgments in Carmen Media, Stoß, 
and Dickinger and Ömer are exceeded, which means that, for that reason alone, 
the Austrian gambling monopoly, including its accompanying regulations, is no 
longer applicable in respect of anyone who, like the appellant, exercises the 
freedom to provide services. This conclusion is also reached by all previously 
published academic contributions on this topic. 
12 It is also stated in this regard in the Opinion of Advocate General Sharpston of 
14 November 2013 in Case C-390/12, Pfleger and Others, that when, as in the 
given case in Austria, a licence holder ‘has engaged in what [the referring court] 
terms colossal expenditure on an aggressive advertising campaign which 
promotes a positive image of games of chance and encourages active 
participation’, this ‘commercial policy is plainly inconsistent with an aim of 
achieving a high level of protection for consumers’ (point 60). 
13 The market policy of the licence holders meets all the criteria established by the 
Court of Justice which the market conduct of a monopolist may precisely not 
demonstrate: 
The monopolists’ advertising 
a. encourages active participation in gambling 
Österreichische Lotterien GmbH/Casinos Austria AG were the sixth largest 
spenders on advertising in Austria in 2012, and the seventh largest in 2013 with 
EUR 41 million. Full-page advertisements regularly appear in all daily media. 
A new video campaign seeks to transport people from dull or demanding everyday 
situations into a colourful world of online gambling. 
Extensive coverage is achieved through cooperation with Österreichischer 
Rundfunk (ORF), for example through broadcasting of the lotto draws or the 
‘Money Maker’ programme. 
Further evidence of the strategy of bringing gambling into the ‘mainstream’ is the 
sale, processed via the post office, of EUR 1.45 stamps with the ‘25 Jahre Lotto’ 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-444/18 
 
6  
[25 years of lotto] motif. Above the stamp is a bar code which can be redeemed 
for a free lotto bet. 
b. ascribes a positive image to gambling as such 
Advertising messages such as, for example, ‘Gewinnen macht schön’ [Winning 
makes you beautiful] or ‘Das Glück steht Ihnen gut’ [Good luck becomes you] 
definitely ascribe a positive image to gambling as such. Slogans such as ‘Gewinne 
Ruhm für die Ewigkeit!’ [Win glory for eternity!] or ‘Lotto sichert Ihre Pension’ 
[Lotto secures your retirement] also present gambling for ‘glory’ or provision for 
old age in a positive light. Visual links with happy events (e.g. marriage) likewise 
confer on gambling positive connotations. 
The suggestion of the supposed charitable use of the proceeds (e.g. support for the 
Vienna Burgtheater) also ascribes a positive image to gambling (‘Ein Gewinn für 
die Kultur’ [A win for culture] and ‘Gut für Österreich’ [Good for Austria]). 
c. tantalisingly holds out the prospect of major winnings 
In the scope of the ‘Euro Millions’, the prospect of winning up to EUR 190 
million is set out; ‘10 Millionen Euro an einem Tag’ [EUR 10 million in a day]; 
‘Automatisch Millionär werden: Millionär auf Knopfdruck mit MegaMillion’ 
[Automatically become a millionaire at the touch of a button with MegaMillion]. 
In 2010, the licensee had an entire underground train (104 metres long) redesigned 
for its ‘Golden Roulette’ campaign and presented the prospect of winning gold 
bars. A tram in Innsbruck decked out along its entire length with advertising 
inscriptions and graphics is also currently inviting people to engage in gambling. 
d. incites new target groups to gamble 
The addressing of new target groups constitutes an attempt to expand the market 
for gambling overall. 
(aa) Women 
The ‘Diamantenfieber’ [Diamond fever] advertising approach in 2009 was 
intended to tempt women into casinos on ‘Ladies’ Day’; in 2010, a Mother’s Day 
advertising campaign for a casino visit was specifically aimed at women as a new 
target group. 
Explanations in the advertisements (‘How does roulette work?’; ‘How does poker 
work?’) explicitly prove that these advertisements are intended to address new 
target groups and therefore expand the market for gambling overall, as the 
existing public is certainly aware of the rules of these most popular games. In 
addition, such advertisements, by which, for instance, the working of roulette is 
explained, are liable to demean the targets of that advertisement (in the case of the 
given advertisement: women), as they are not thought to have such fundamental 
knowledge. 
FLUCTUS AND FLUENTUM 
 
7 
(bb) ‘Generation Facebook’ 
Young internet users are in turn targeted for example by the internet ‘Farmwin’ 
slot machine based on the popular Facebook game ‘Farmville’. The difference is 
that, in contrast to the Facebook game ‘Farmville’, which is played without a 
stake, a stake of up to EUR 15 per game is possible with the variant on 
win2day.at. 
Many other games address a young target public in style and promotion. 
One of the most recent products has a youthful design specifically for playing on 
the go with iPhone or Android. A stake of up to EUR 15 per game is possible. 
Finally, the creation of a dedicated win2day Facebook page is also aimed at a 
young target public. 
(cc) Stylish and confident target public 
Finally, according to self-reported information, a new ‘stylish’ advertising 
approach on the internet is also intended to address the modern, confident visitor. 
e. is continually being expanded in terms of content. 
Traditional lottery products are mainly sold via ‘acceptance points’, until recently 
only via tobacconists. In recent years, the acceptance points have been extended to 
filling stations and post offices, but also to catering outlets, and have thus 
dramatically increased in number from around 3 500 to more than 5 000. Through 
the extension of the acceptance points, Österreichische Lotterien GmbH is 
expecting an increase in revenue of between 15% and 30%. 
It is completely incomprehensible how this could effectively counteract illegal 
gambling activities, as it is generally known that there are no illegal lotteries in 
Austria and it is difficult to imagine that the extension of the sale of scratch cards 
and lottery tickets prevents anyone from gambling in any other way. Furthermore, 
the lottery products of Österreichische Lotterien GmbH are the only games of 
chance in Austria that are accessible to minors — they therefore also constitute an 
offer without competition in this regard. It is therefore much more plausible that 
the expected increase in revenue ‘of between 15% and 30%’, which is also 
generated at the expense of minors, is the sole consideration for this offer 
expansion. 
In the same way, the current expansion of the content offered by the monopoly 
licensee can also only be explained from a monetary point of view. 
14 Casinos Austria and Österreichische Lotterien reported, for instance, record sales 
of EUR 3.62 billion in the 2014 financial year. According to their own press 
release of 8 April 2015, this success is attributable in particular to an expansion of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-444/18 
 
8  
the content offered, for example a new roulette variant and new games, including 
games for mobile phones and tablets. 
15 Österreichische Lotterien GmbH has now increased the price of its gambling 
products for the third time since 2007 and expanded the offer to include more 
winning ranges and a minimum jackpot of EUR 1 million in September 2010, 
immediately after the entry into force of the amendments to the Law on Gambling 
in the summer of 2010. This has nothing to do with moderate channelling, since 
the lotto games in particular are expressly allowed without any player-protective 
age regulation by the gambling supervisory authority in the Federal Ministry of 
Finance and in terms of policy. Only the private provider of Österreichische 
Lotterien GmbH itself, in which various media are involved, sets an age limit of 
16 years. The largest financial beneficiary of this gambling offer expansion and 
the price increases is the supervisory body of Österreichische Lotterien GmbH, 
namely the Ministry of Finance. 
16 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 Finance Minister himself is an indirect stakeholder in the shares to 
be protected of the Republic of Austria through the 33.6% participation of Münze 
Österreich AG in Casinos Austria AG and thereby in Österreichische Lotterien 
GmbH, and, on the other hand, the Finance Minister is supposed to play a 
comprehensive supervisory role in respect of the licensees 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 licensees. 
17 The cited examples can almost be expanded as desired. For example, photographs 
with a clearly erotic connotation are used in the advertising for the casinos (‘sex 
sells’). On the annual ‘International Day of Happiness’, the licensee always 
advertises all over the country and distributes gift vouchers and fortune cookies. 
The advertising activities obviously serve primarily to acquire new customers, as 
clearly evidenced by the constant promotion of game instructions and casino 
tours. As a result of this massive promotion, Casinos Austria AG — according to 
its own press release of 23 March 2015 — broke all records and had the busiest 
day in the history of Casinos Austria with 16 000 visitors on Happiness Day. 
18 Casinos Austria AG regularly organises machine ‘tournaments’ and advertises its 
Jackpot Cafes — in which it particularly operates gaming machines — with free 
entry, a game card worth EUR 30.00 for only EUR 25.00, no dress code and a free 
drink. The possibility of winning more than EUR 1 000 000 with minimum stakes 
of EUR 0.01 is suggested in the advertising. Österreichische Lotterien GmbH 
advertises its slot games on www.win2day.at in particular via radio and television. 
There is hardly any commercial break on ORF in which its slot games are not 
advertised. 
FLUCTUS AND FLUENTUM 
 
9 
19 In addition, the corporate group also proved once again to be one of the biggest 
sponsors in the fields of social affairs, culture, sport and tourism. 
20 It has already been increasingly found that the commercial policy of 
Österreichische Lotterien GmbH and Casinos Austria AG may not be regarded, 
both with regard to the scale of advertising undertaken and with regard to the 
creation of new games, as forming part of a policy of controlled expansion in the 
gambling sector, aiming in fact to channel the propensity to gamble into 
controlled activities, and the measures taken are also not aimed at channelling the 
consumers’ propensity to gamble into controlled activities, as demanded by the 
Court of Justice in respect of the admissibility of the restrictions of the 
fundamental freedoms under EU law in the field of gambling. 
21 Thus, following an extensive overview of the advertising carried out by 
Österreichische Lotterien GmbH and Casinos Austria AG, the Landesgericht Linz 
(Regional Court, Linz) found that the overall advertising was not measured and 
limited to directing the consumer to controlled gaming networks (of the 
monopolist), and to counteracting gambling addiction and criminal activities 
connected therewith, but was instead expansionist advertising aimed at growth, 
which sought to promote gambling operations and stimulated active participation, 
through trivialisation, creating a positive image, increasing the attractiveness and 
presenting the prospect of enticing winnings. 
22 The Landesverwaltungsgericht Vorarlberg (Regional Administrative Court, 
Vorarlberg) found that these advertising activities are not measured and strictly 
limited to what is necessary. 
23 The Oberster Gerichtshof (Supreme Court) also explicitly demonstrated the 
gambling monopoly’s lack of compliance with EU law and stated that this fact is 
corroborated by the findings in proceedings according to which Österreichische 
Lotterien GmbH was prepared to pay the defendant in that case (an association 
representing the interests of the Austrian newspapers) a sum of money for the 
positive reporting of its gambling operations — for example EUR 3 680 000 in 
2007 — and that Österreichische Lotterien GmbH concluded similar contracts 
with other contracting partners. 
24 The advertising activities of a large number of third undertakings providing 
gambling services in Austria, in particular in the online sector, are also neither 
measured nor limited and are not subject to effective supervision. There is, for 
instance, hardly any commercial break on the television in which at least one 
advertisement for an online gambling provider does not appear, with the majority 
advertising undertakings which do not have a licence for operating draws in 
Austria. Only Casinos Austria AG has a licence for online gambling. 
25 It remains unclear why the ban established in the GSpG on advertising for 
unlicensed gambling is not enforced by the Federal Ministry of Finance. In any 
case, this obviously has nothing to do with a coherent gambling policy, or with 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-444/18 
 
10  
player protection, which is made patently evident, for example, by the fact that a 
loss of up to EUR 9 999 999 is possible with the internet gambling provider 
Mr Green. 
26 It is also incomprehensible why, for instance, providers of sports betting are not 
actually subject to separate advertising restrictions. 
27 Österreichische Lotterien GmbH, the holder of all lottery licences provided for in 
Paragraph 14 of the GSpG, invests from EUR 40 million to almost EUR 50 
million annually in advertising and is among the top eight investors in terms of 
advertising expenditure in Austria. In this case, Österreichische Lotterien GmbH 
targeted a wide audience, such as by advertising in newspapers for people 
interested in religion and culture, referring in its advertising to the sponsorship of 
large festivals and charitable purposes, treating people with a game receipt to 
entry to Schönbrunn zoo and (co-)financing a large sporting event for 
schoolchildren aged from 10 to 14. 
28 Casinos Austria AG, the holder of all casino licences provided for in Paragraph 21 
of the GSpG, has advertised or advertises using, inter alia, slogans such as 
‘Gewinnen macht schön’, ‘Das Glück steht Ihnen gut’, ‘Ein Abend so schön wie 
die Frauen. Mittwoch ist Damentag’ [An evening as beautiful as the women. 
Wednesday is Ladies’ Day], ‘Frauen haben nicht nur Glück im Spiel’ [Women are 
not just lucky at gambling] and ‘Mittwoch packt alle das Diamantenfieber’ 
[Everyone has diamond fever on Wednesday]. For a number of cultural events in 
the casino, it was advertised inter alia that welcome chips for the casino were also 
included in the ticket price. Casinos Austria AG indicated in several press releases 
that its ‘lucky days’ with all kinds of chances of winning provided visitor records 
of well over 10 000 guests per day. In this case, the visitors were attracted by 
entertainment programmes and prize draws, in which motor vehicles and lotto 
vouchers could be won. 
29 Thus, the advertising pursues the purpose of, in particular, stimulating active 
participation in gambling on the part of those people who have not readily been 
prepared to gamble to date. Gambling is ascribed a positive image. The 
advertising attempts to increase the attractiveness by means of enticing 
promotional messages and holds out the tantalising prospect of major winnings. 
New target groups are thereby in particular encouraged to gamble and the content 
of the advertising is constantly being expanded. Within the meaning of the 
reported case-law of the Court of Justice, there is therefore no measured 
advertising limited to directing consumers to the controlled gaming networks. 
Fitted into this picture is the fact that Paragraph 56(1) of the GSpG excludes an 
examination of the standard required under EU law in the case of advertising by 
way of action by competitors or associations with capacity to bring proceedings 
under the UWG. The gambling monopoly therefore lacks the justification required 
under EU law.