Opinion of the Advocate General — ECLI:EU:C:2013:747
Date: 2013-11-14
Language of the case: German
Subject matter: Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary — Judgment of the Court (Third Chamber), 30 April 2014 1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Dispute not relating to a purely internal situation — Applicability of Article 56 TFEU (Arts 56 TFEU and 267 TFEU) 2. Questions referred for a preliminary ruling — Admissibility — Limits — Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer — Need to provide the Court with sufficient information on the factual and legislative context (Art. 267 TFEU) 3. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Application for an interpretation of the Charter of Fundamental Rights of the European Union — National legislation displaying a factor connecting it with EU law — Restrictions on the freedom to provide services justified by overriding requirements in the public interest — Permissibility conditional on respect for fundamental rights — Jurisdiction of the Court (Art. 267 TFEU; Charter of Fundamental Rights of the European Union, Art. 51(1)) 4. Freedom to provide services — Restrictions — Betting and gaming — National legislation prohibiting the operation of games of chance using machines without the prior authorisation of the administrative authorities — Justification — Restriction of the availability of games of chance and combatting criminality — Duty to meet the requirements of proportionality and non-discrimination — Conditions — No genuine pursuit of those objectives (Arts 56 TFEU and 267 TFEU) 5. Fundamental rights — Charter of Fundamental Rights of the European Union — Limitation on the exercise of rights and freedoms guaranteed by the Charter — Freedom to choose an occupation, the freedom to conduct a business and the right to property — Unjustified or disproportionate restriction of the freedom to provide services — Inadmissibility also in the light of Article 52(1) of the Charter (Art. 56 TFEU; Charter of Fundamental Rights of the European Union, Arts 15, 16, 17 and 52(1)) 6. Freedom to provide services — Restrictions — Betting and gaming — National legislation prohibiting the operation of games of chance using machines without the prior authorisation of the administrative authorities — Incompatibility with Article 56 TFEU — Sanctions against wrongdoers — Unlawful (Art. 56 TFEU) 1. See the text of the decision. (see paras 21-24) 2. See the text of the decision. (see paras 26, 27) 3. Where national rules fall within the scope of EU law, and a reference has been made for a preliminary ruling, the Court must provide all the criteria of interpretation needed by the national court to determine whether those rules are compatible with the fundamental rights the observance of which is ensured by the Courts. In that regard, where a Member State relies on overriding requirements in the public interest in order to justify rules which are liable to obstruct the exercise of the freedom to provide services, such justification, provided for by EU law, must be interpreted in the light of the general principles of EU law, in particular the fundamental rights henceforth guaranteed by the Charter. Thus, the national rules in question can fall under the exceptions provided for only if they are compatible with the fundamental rights the observance of which is ensured by the Court. Where it is apparent that national legislation is such as to obstruct the exercise of one or more fundamental freedoms guaranteed by the Treaty, it may benefit from the exceptions provided for by EU law in order to justify that fact only in so far as that complies with the fundamental rights enforced by the Court. That obligation to comply with fundamental rights manifestly comes within the scope of EU law and, consequently, within that of the Charter. The use by a Member State of exceptions provided for by EU law in order to justify an obstruction of a fundamental freedom guaranteed by the Treaty must, therefore, be regarded as ‘implementing [EU] law’ within the meaning of Article 51(1) of the Charter. (see paras 33, 35, 36) 4. Article 56 TFEU must be interpreted as precluding national legislation which prohibits the operation of gaming machines in the absence of the prior authorisation of the administrative authorities, where 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. (see para. 56, operative part) 5. An unjustified or disproportionate restriction of the freedom to provide services under Article 56 TFEU is also not permitted under Article 52(1) of the Charter of Fundamental Rights of the European Union in relation to Articles 15 to 17 of the Charter of Fundamental Rights of the European Union. (see para. 59) 6. Where a restrictive system has been established for games of chance and that system is incompatible with Article 56 TFEU, an infringement of the system by an economic operator cannot give rise to penalties. (see para. 64)