Opinion of the Advocate General — ECLI:EU:C:2010:110
Date: 2010-03-04
Language of the case: German
Subject matter: Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Freedom to provide services – Provisions of the Treaty – Scope – Gambling (Art. 49 EC) 2. Freedom to provide services – Restrictions – Gambling (Art. 49 EC) 3. Freedom to provide services – Restrictions – Gambling (Art. 49 EC) 4. Freedom to provide services – Restrictions – Gambling (Art. 49 EC) 1. On a proper interpretation of Article 49 EC, an operator wishing to offer via the internet bets on sporting competitions in a Member State other than that in which it is established does not cease to fall within the scope of the said provision solely because that operator does not have an authorisation permitting it to offer such bets to persons within the territory of the Member State in which it is established, but holds only an authorisation to offer those services to persons located outside that territory. The right of an economic operator, established in a Member State, to provide services in another Member State, which that provision lays down, is not subject to the condition that the said operator also provides such services in the Member State in which he is established. In that regard, Article 49 EC requires only that the provider be established in a Member State other than that of the recipient. (see paras 43, 52, operative part 1) 2. On a proper interpretation of Article 49 EC, where a regional public monopoly on sporting bets and lotteries has been established with the objective of preventing incitement to squander money on gambling and of combating gambling addiction, and yet a national court establishes at the same time: – that other types of games of chance may be exploited by private operators holding an authorisation, – that in relation to other games of chance not falling within the said monopoly and, moreover, posing a higher risk of addiction than the games subject to that monopoly, the competent authorities pursue policies of expanding supply, of such a nature as to develop and stimulate gaming activities, in particular with a view to maximising revenue derived from the latter, that national court may legitimately be led to consider that such a monopoly is not suitable for ensuring the achievement of the objective for which it was established by contributing to reducing the opportunities for gambling and to limiting activities within that area in a consistent, systematic manner. The fact that the games of chance subject to the said monopoly fall within the competence of the regional authorities, whereas those other types of games of chance fall within the competence of the federal authorities, is irrelevant in that respect. Those various authorities are under a duty jointly to carry out the obligation on the Member State concerned not to infringe Article 49 EC. (see paras 70-71, operative part 2) 3. On a proper interpretation of Article 49 EC, when a system of prior administrative authorisation is established in a Member State as regards the supply of certain types of gambling, such a system, which derogates from the freedom to provide services guaranteed by Article 49 EC, is capable of satisfying the requirements of that latter provision only if it is based on criteria which are objective, non-discriminatory and known in advance, in such a way as to circumscribe the exercise of the national authorities’ discretion so that it is not used arbitrarily. Furthermore, any persons affected by a restrictive measure based on such a derogation must have an effective judicial remedy available to them. It is for each Member State to assess whether, in the context of the legitimate aims which it pursues, it is necessary wholly or partially to prohibit gambling activities, or only to restrict them and to lay down more or less strict supervisory rules for that purpose. Therefore, if a Member State pursues an objective seeking to reduce gambling opportunities, it is entitled, in principle, to establish a system of authorisation and in that respect to lay down restrictions as to the number of operators authorised. However, the discretion thus enjoyed by the Member States in restricting gambling does not exonerate them from ensuring that the measures they impose satisfy the conditions laid down in the case-law of the Court, particularly as regards their proportionality. Where a system of authorisation pursuing legitimate objectives is established in a Member State, such a system cannot render legitimate discretionary conduct on the part of the national authorities which is liable to negate the effectiveness of provisions of EU law, in particular those relating to a fundamental freedom such as that guaranteed by Article 49 EC. (see paras 83-86, 90, operative part 3) 4. On a proper interpretation of Article 49 EC, national legislation prohibiting the organisation and intermediation of games of chance on the internet for the purposes of preventing the squandering of money on gambling, combating addiction to the latter and protecting young persons may, in principle, be regarded as suitable for pursuing such legitimate objectives, even if the offer of such games remains authorised through more traditional channels. The characteristics specific to the offer of games of chance by the internet may prove to be a source of risks of a different kind and a greater order in the area of consumer protection, particularly in relation to young persons and those with a propensity for gambling or likely to develop such a propensity, in comparison with traditional markets for such games. Apart from the lack of direct contact between the consumer and the operator, the particular ease and the permanence of access to games offered over the internet and the potentially high volume and frequency of such an international offer, in an environment which is moreover characterised by isolation of the player, anonymity and an absence of social control, constitute so many factors likely to foster the development of gambling addiction and the related squandering of money, and thus likely to increase the negative social and moral consequences attaching thereto. The fact that such a prohibition is accompanied by a transitional measure strictly limited in scope, limited in duration to one year and designed only to allow certain economic operators, who had hitherto legally offered lotteries via the internet to carry out a conversion of their business following the entry into force of a prohibition affecting their initial business is not capable of depriving the said prohibition of that suitability. In those circumstances, such a measure does not seem likely to likely to affect the consistency of the measure prohibiting the offer of gambling on the internet and its suitability for achieving the objectives it pursues. (see paras 103, 108, 110-111, operative part 4)