62016CC0255
OPINION OF ADVOCATE GENERAL
BOBEK
delivered on 26 July 2017 (
1
)
Case C‑255/16
Anklagemyndigheden
v
Bent Falbert
Poul Madsen
JP/Politikens Hus A/S
(Request for a preliminary ruling from the Københavns Byret (District Court, Copenhagen, Denmark))
(Notification procedure for technical regulations — Technical regulations in the gambling sector — Obligation for Member States to notify draft technical regulations to the Commission — National legislation sanctioning the offering of gaming, lotteries or betting not covered by a licence and the advertising of unlicensed gaming, lotteries or betting)
I. Introduction
1.
Bent Falbert, Poul Madsen and JP/Politikens Hus A/S (‘the Defendants’) are being prosecuted in criminal proceedings in Denmark for their involvement in advertising unlicensed online gaming services in the newspaper and on the website of the newspaper Ekstra Bladet. The lov om visse spil, lotterier og væddemål (Danish law on gaming, lotteries and betting) provides for the imposition of sanctions on the advertising of unlicensed gaming, lotteries and betting.
2.
The Defendants argue essentially that that national provision constitutes a ‘technical regulation’ within the meaning of Directive 98/34/EC, (
2
) as amended by Directive 98/48/EC, (
3
) which has not been notified to the Commission. For that reason, that provision cannot be invoked against the Defendants. In that context, the Københavns Byret (District Court, Copenhagen, Denmark) asks whether a notification should have been made under Directive 98/34.
II. Legal framework
A.
EU law
1.
Directive 98/34
3.
Article 1 of Directive 98/34, as amended by Directive 98/48/EC, sets out the following definitions:
‘For the purposes of this Directive, the following meanings shall apply:
…
2.
“service”, any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.
For the purposes of this definition:
—
“at a distance” means that the service is provided without the parties being simultaneously present,
—
“by electronic means” means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means,
—
“at the individual request of a recipient of services” means that the service is provided through the transmission of data on individual request.
…
5.
“rule on services”, requirement of a general nature relating to the taking-up and pursuit of service activities within the meaning of point 2, in particular provisions concerning the service provider, the services and the recipient of services, excluding any rules which are not specifically aimed at the services defined in that point.
…
For the purposes of this definition:
—
a rule shall be considered to be specifically aimed at Information Society services where, having regard to its statement of reasons and its operative part, the specific aim and object of all or some of its individual provisions is to regulate such services in an explicit and targeted manner,
—
a rule shall not be considered to be specifically aimed at Information Society services if it affects such services only in an implicit or incidental manner.
…
11.
“technical regulation”, technical specifications and other requirements or rules on services, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing, provision of a service, establishment of a service operator or use in a Member State or a major part thereof, as well as laws, regulations or administrative provisions of Member States, except those provided for in Article 10, prohibiting the manufacture, importation, marketing or use of a product or prohibiting the provision or use of a service, or establishment as a service provider.’
4.
Article 8 provides as follows:
‘1.   Subject to Article 10, Member States shall immediately communicate to the Commission any draft technical regulation, except where it merely transposes the full text of an international or European standard, in which case information regarding the relevant standard shall suffice; they shall also let the Commission have a statement of the grounds which make the enactment of such a technical regulation necessary, where these have not already been made clear in the draft.
…’
B.
National law
5.
Lov nr. 204 af 26. marts 2003 om ændring af lov om visse spil, lotterier og væddemål og andre love og om ophævelse af lov om væddemål i forbindelse med heste- og hundevæddeløb (Law No 204 of 26 March 2003 amending the Law on certain gaming, lotteries and betting and other laws and repealing the Law on horse and dog race betting) (‘the 2003 Amendment’) merged two previously separate laws on gaming and on horse and dog race betting, and added amendments to certain provisions.
6.
The amendments are found inter alia in the introduction of Paragraph 10, (
4
) which read as follows:
‘A fine or imprisonment of up to six months shall be imposed on whoever, intentionally or through gross negligence,
(1)
offers gaming, lotteries or betting in Denmark without holding a licence under Paragraph 1,
(2)
brokers participation in gaming, lotteries or betting that is not covered by a licence under Paragraph 1.
...
3. A fine shall be imposed on whoever, intentionally or through gross negligence,
…
(3)
advertises gaming, lotteries or betting, that is not covered by a licence under Paragraph 1.’
7.
Under Paragraph 2(1), a licence may be granted to only one company (creating a monopoly).
8.
According to the comments accompanying the draft of the 2003 Amendment, (
5
) the purpose of point 3 of Paragraph 10(3), was expressed as follows:
‘It is proposed to prohibit advertising the games, lotteries and betting, not authorised by law.
This modification corresponds to the prohibition currently appearing in Paragraph 12(3) of the Law on horse race betting but is a clarification of Paragraph 10(4) of the Law on betting and lotteries.
This prohibition aims at protecting operators of games licensed by the Danish authorities against competition from companies not having such a licence and who, legally, cannot commercialise games or distribute games in Denmark.
Advertising within the meaning of this law is to be understood as all forms of announcement or communication of information on the activities and the commercial offering of games operators.
However, this prohibition does not apply to editorial references in printed or digital media.
This prohibition applies irrespective of the media used. Advertising is therefore prohibited to the same extent in printed media, on the radio, on television and on digital media, in the form of advertising banners, for example.
Advertising for the activities of games operators, in particular their websites, addresses, etc., is also prohibited in application of point 3 of Paragraph 10(3).’
9.
Following infringement proceedings, the 2003 Amendment was repealed and replaced by a new law that was notified to the Commission. However, the 2003 Amendment applies to the facts of the case in the main proceedings.
III. Facts, procedure and questions referred
10.
The Defendants are the former and the current chief editor and the owner of the newspaper Ekstra Bladet. They are being prosecuted in criminal proceedings in Denmark for the publication of advertisements in the newspaper Ekstra Bladet and on the websites www.ekstrabladet.dk and www.ekstrabladet.tv for bookmaking firms offering gaming or betting in Denmark, without those firms having been issued a licence.
11.
Point 1 of Paragraph 10(1) of the Danish law on gaming, lotteries and betting provides for the imposition of penalties for offering gaming, lotteries and betting services without a licence (‘the Paragraph 10(1)(1) Rule’). Point 3 of Paragraph 10(3) of the same law (‘the Paragraph 10(3)(3) Rule’) provides for the imposition of penalties for advertising unlicensed gaming, lotteries and betting. Both rules were adopted as part of the 2003 Amendment, modifying and consolidating corresponding provisions of the existing legislation in the sector.
12.
The 2003 Amendment was subsequently abrogated in 2010 as part of the liberalisation of the market in Denmark. However, the criminal proceedings against the Defendants were initiated while the Paragraph 10(3)(3) Rule was still applicable.
13.
Before the Københavns Byret (District Court, Copenhagen), the Defendants argue that the Paragraph 10(3)(3) Rule is a ‘rule on [information society] services’ within the meaning of Article 1(5) of Directive 98/34. As such, in accordance with Article 8(1) of Directive 98/34, it ought to have been notified to the Commission. Since it was not notified, the Defendants argue that it cannot be invoked against them.
14.
The wording of the Paragraph 10(3)(3) Rule does not explicitly mention information society services. However, in its request, the national court refers to extracts of the comments accompanying the draft of the 2003 Amendment. Those extracts do refer to, inter alia, online gaming services. As a result, the referring court considers that the Paragraph 10(3)(3) Rule could potentially fall within the scope of the notion of ‘rule on [information society] services’ and the notification obligation in Article 8(1) of Directive 98/34.
15.
In the light of the above, the Københavns Byret (District Court, Copenhagen) puts the following question to the Court:
‘Does this case involve a rule that must be notified under Article 8(1), cf. Article 1, first paragraph, (2), (5), and (11) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations, as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998 amending Directive 98/34 … laying down a procedure for the provision of information in the field of technical standards and regulations, assuming the following:
(a)
amending legislation is to be introduced amending the Law on certain gaming, lotteries and betting (lov om visse spil, lotterier og væddemål), under which a provision is to be introduced on sentencing inter alia for whoever intentionally or through gross negligence “offers gaming, lotteries or betting in Denmark without holding a licence pursuant to Paragraph 1”, and for whoever intentionally or through gross negligence “advertises gaming, lotteries or betting not covered by a licence under Paragraph 1”, and
(b)
the comments on the draft amending legislation [bemærkningerne til forslaget til ændringsloven] indicate that the purpose of the abovementioned sentencing provisions is to clarify or introduce a prohibition on gaming offered online by gaming companies outside Denmark and directly targeting the Danish market, partly by prohibiting advertising for, inter alia, gaming offered online by gaming companies outside Denmark, inasmuch as it is stated in those comments that there is no doubt that, under the rules prevailing before the amendments, gaming measures are unlawful if a gaming company outside Denmark makes use of sales channels in which the gaming device is actually physically sold within the borders of Denmark; there is, however, greater doubt as to whether gaming from outside Denmark aimed at gaming participants in Denmark but actually physically situated outside Denmark is also covered by the provision; and it is therefore necessary to have clarified whether those forms of gaming are covered. It is further apparent from the comments that it is suggested to introduce an advertising ban on gaming, lotteries and betting which are not licensed under that law, and that the amendment complies with the current prohibition in Paragraph 12(3) of the Law on horse race betting (hestevæddeløbsloven) but is a clarification of Paragraph 10(4) of the [now repealed] Law on betting and lotteries (Tips- og lottoloven). The remarks further state that the purpose of the prohibition is to protect gaming providers holding a licence from the Danish authorities against competition from companies that do not hold such a licence and who therefore cannot lawfully offer or broker gaming in Denmark?’
16.
Written submissions were lodged by the Defendants in the main case, the Danish and Portuguese Governments and the Commission. The interested parties that participated in the written stage and the Romanian Government also presented oral argument at the hearing held on 11 May 2017.
IV. Assessment
17.
By its questions, the referring court asks in substance whether the Paragraph 10(1)(1) Rule and/or Paragraph 10(3)(3) Rule providing for sanctions against the offering of unauthorised gambling services and the advertising of such unauthorised services constitute ‘rules on [information society] services’ and thus ‘technical regulations’, which must be notified (and so are ‘notifiable’) under Directive 98/34. In posing that question, the referring court points to the rationale behind the 2003 Amendment as set out in the comments accompanying the draft law.
A.
Admissibility
18.
According to the request for a preliminary ruling, the Defendants in the main case are charged only with the advertising of unauthorised services. As a result, to the extent that the questions also relate to the Paragraph 10(1)(1) Rule (sanctioning the offering of the unauthorised services themselves), their relevance could be doubted.
19.
However, I do not consider that the questions should be declared partially inadmissible on that basis.
20.
There is an obvious relationship between the Paragraph 10(1)(1) Rule and the Paragraph 10(3)(3) Rule. A rule sanctioning the advertising of unauthorised services is inextricably linked to the basic rule requiring authorisation. Indeed, without the latter, the former arguably makes little sense. Thus, if the authorisation for gaming services requirement itself were to be declared to be a technical regulation which ought to have been notified but was not, in principle it could not be invoked against individuals. It is difficult to envisage such a statement not having a certain ‘domino effect’ on the potential (il)legality of the advertising of those same gaming services.
21.
The precise nature of that interrelationship is ultimately a question of national law. However, there is, at least at first sight, a need for coherency as regards the respective notification requirements relating to those rules. Thus, whether the Paragraph 10(1)(1) Rule should be notified is not obviously irrelevant or hypothetical.
22.
Furthermore, since in general questions referred to the Court enjoy a presumption of relevance, (
6
) the referring court’s questions are, in my view, admissible in their entirety.
B.
Substance
1.
Preliminary remarks
23.
The national rules, the subject of the referring court’s request, regulate (i) gaming services and (ii) advertising services.
24.
In this Opinion I will consider whether, in regulating those two types of services, the Paragraph 10(1)(1) Rule or the Paragraph 10(3)(3) Rule constitutes a ‘rule on [information society] services’ within the meaning of Article 1(5) of Directive 98/34.
25.
Under (2) below, I will take the gaming service as the potential information society service and determine whether either the Paragraph 10(1)(1) Rule or the Paragraph 10(3)(3) Rule could be categorised as ‘rules on [information society gaming] services’. In my view, neither can. Instead, both appear to constitute measures for the enforcement of an authorisation requirement. According to an established line of case-law, beginning with CIA Security, (
7
) such measures do not constitute ‘technical regulations’.
26.
Under (3), I will consider whether, if the Court should hold that the CIA authorisation exception does not apply, the Paragraph 10(1)(1) Rule and/or the Paragraph 10(3)(3) Rule could then be categorised as a rule on information society gaming services. I will also consider whether the Paragraph 10(3)(3) Rule could be categorised as a ‘rule on information society advertising services’. In my opinion, and subject to final assessment by the national court, they cannot. Neither rule is ‘specifically aimed at Information Society services’ in the sense of Article 1(5) of Directive 98/34.
27.
Before going into the detailed analysis, I wish to stress that this Opinion does not address the question of the compatibility of the 2003 Amendment with the EU Treaty provisions on free movement. The national court referred in its request to the existence of an infringement procedure concerning that legislation, which was discontinued by the Commission following the subsequent liberalisation of the national market for gaming (repealing the provisions of national law that are under consideration in this case). However, the national court has specifically excluded from the scope of its questions any issues of compatibility of those national provisions with the free movement rules.
2.
Gaming services: the CIA authorisation exception
(a)
Nature of the CIA authorisation exception
28.
The concept of a ‘technical regulation’ extends to four categories of measures, namely: (i) the ‘technical specification’, within the meaning of Article 1(3) of Directive 98/34; (ii) ‘other requirements’, as defined in Article 1(4) of that directive; (iii) the ‘rule on services’, covered in Article 1(5) of that directive; and (iv) the ‘laws, regulations or administrative provisions of Member States … prohibiting the manufacture, importation, marketing or use of a product or prohibiting the provision or use of a service, or establishment as a service provider’, under Article 1(11) of that directive. (
8
)
29.
According to well-established case-law, ‘provisions of national law which merely lay down conditions governing the establishment or provision of services by undertakings, such as provisions making the exercise of a business activity subject to prior authorisation, do not constitute technical regulations within the meaning of Article 1(11) of Directive 98/34’. (
9
) The same applies to provisions of national law prohibiting operators from engaging in a certain activity without authorisation. Those are two sides of the same coin. (
10
)
30.
Hereafter I refer to that exclusion of prior authorisation obligations from the notion of ‘technical regulation’ as the ‘CIA authorisation exception’ (after the first judgment applying the rule). (
11
)
(b)
Paragraph 10(1)(1) Rule
31.
The CIA authorisation exception covers provisions of national law prohibiting operators from engaging in a certain activity without authorisation. Logically, it must also cover provisions imposing sanctions for breach of the authorisation requirement. (
12
) It would indeed make little sense to exclude the substantive rule requiring prior authorisation from the notification obligation (because it is not a ‘technical regulation’), while at the same time classifying related enforcement provisions, which are there to buttress and enforce the primary authorisation rule, as ‘technical requirements’ and imposing a notification obligation in their regard.
32.
It therefore follows that a rule such as the Paragraph 10(1)(1) Rule, which foresees the imposition of fines or imprisonment if there has been an offer of gaming, lotteries or betting without a licence, falls within the scope of the CIA authorisation exception. It does not constitute a ‘technical regulation’ within the meaning of Article 1(11) of Directive 98/34, as interpreted by the Court’s case-law.
(c)
Paragraph 10(3)(3) Rule as a rule on gaming services
33.
What then of a rule such as the Paragraph 10(3)(3) Rule, which imposes sanctions on the advertising of unauthorised gaming services?
34.
Requiring authorisation as a precondition to providing the main service (gaming) falls within the CIA authorisation exception. The Commission does not therefore need to be notified of it.
35.
Requiring an authorisation for gaming services to have already been obtained as a precondition to providing ancillary services (advertising of gaming) should logically also fall within the CIA authorisation exception. It is not therefore notifiable either. For the reasons set out above in points 31 to 32 the same approach applies to provisions providing for sanctions for breaches of those requirements.
36.
To put it another way, at the root of both the Paragraph 10(1)(1) Rule and the Paragraph 10(3)(3) Rule is precisely the same requirement: a prior authorisation for gaming services. According to established case-law, such a requirement is covered by the CIA authorisation exception and does not need to be notified.
37.
I will add two further observations on this point.
38.
First, the above reasoning highlights an important distinction that underpins the CIA authorisation exception, namely: the difference between (i) the existence of a prior authorisation requirement and (ii) the conditions of the authorisation. The former kind of rule, (i), on existence, exemplified by the Paragraph 10(1)(1) Rule and the Paragraph 10(3)(3) Rule, falls within the CIA authorisation exception. In principle, the latter kind of rule, (ii), on conditions does not, and may be notifiable.
39.
That distinction is at the heart of the solution adopted by the Court in the M. and S. and Fortuna cases, which both concerned Polish legislation on gaming. (
13
) The M. and S. case concerned a provision of Polish law that prohibited gaming without prior authorisation. (
14
) The Fortuna case concerned a provision of the same Polish law that geographically limited authorisations to casinos. (
15
) The Court in Fortuna concluded that the ‘casino’ provision was notifiable. By contrast, the Court in M. and S. concluded that the authorisation provision fell within the CIA authorisation exception and was not notifiable. In doing so, it held that ‘the authorisation required by that provision of national law for the organisation of games of chance constitutes a condition imposed with respect to the activity of organising such games, [is] distinct from Article 14(1) of that law, which imposes conditions with respect to the products concerned by prohibiting their use other than in casinos’ (emphasis added). (
16
)
40.
Second, although the national court does not refer explicitly to it, I consider it of relevance to mention point 2 of Paragraph 10(1) of the 2003 Amendment.
41.
That provision imposes sanctions on persons who ‘broker participation’ in unauthorised gaming (as opposed to ‘offering’ unauthorised gaming (Paragraph 10(1)(1) Rule) and ‘advertising’ unauthorised gaming (Paragraph 10(3)(3) Rule)). According to the Danish comments on the draft 2003 Amendment, ‘brokering participation’ in unauthorised gaming refers to ‘every form of activity aimed at organising games or permitting participation in illegal games’. The comments go on to give examples of (a) providing banking services; (b) server space; or (c) information collection services to operators offering unauthorised gaming services; or (d) linking to websites offering unauthorised gaming services.
42.
Similar to the advertising of unauthorised gaming services, all these appear in substance to be examples of what could be loosely termed ‘complicity’ (
17
) in the main offence of offering of unauthorised gaming services. Again, it would seem incoherent if these types of rules, which all basically prohibit or sanction the assisting of an unauthorised activity, would be notifiable, whereas the prohibition or sanctioning of the unauthorised activity itself escapes that requirement.
43.
In conclusion, to the extent that they concern the regulation of gaming services, I consider that both the Paragraph 10(1)(1) Rule and the Paragraph 10(3)(3) Rule fall within the CIA authorisation exception and did not require notification under Directive 98/34.
(d)
Scope of the CIA authorisation exception after Directive 98/48
44.
At this stage, I consider it necessary to address in more detail an argument discussed at some length in the oral hearing, relating to the scope of the CIA authorisation exception.
45.
Provisions falling within the CIA authorisation exception ‘do not constitute technical regulations within the meaning of Article 1(11) of Directive 98/34’ (
18
) (emphasis added). In other words, the CIA authorisation exception applies to all four categories listed in Article 1(11) of Directive 98/34 and independently of the category of technical regulation that is under examination. I underline that the above quote is taken from, among others, two judgments postdating Directive 98/48, that being the directive which expanded the definition of technical regulation under Article 1(11) of Directive 98/34 to include ‘rules on [information society] services’.
46.
Despite those apparently clear statements, the Commission argues that the CIA authorisation exception does not apply to all of the categories of technical regulation listed in Article 1(11). In particular, in the Commission’s view, it does not apply to ‘rules on [information society] services’. (
19
)
47.
In support of its argument, two points were raised by the Commission, based on (i) paragraphs 75 and 76 of the Court’s judgment in Ince (
20
) and (ii) on the recitals of Directive 98/48.
48.
In paragraph 75 of Ince, the Court listed a number of national provisions that it considered clearly to constitute rules on information society services. (
21
) It went on to contrast them with other rules ‘such as the provisions introducing the obligation to obtain an authorisation to organise or collect sporting bets and the impossibility of issuing such an authorisation to private operators, [which] do not constitute “technical regulations” within the meaning of Article [1(11)] of that directive. National provisions which merely lay down conditions governing the establishment or provision of services by undertakings, such as provisions making the exercise of an activity subject to prior authorisation, do not constitute technical regulations within the meaning of that provision (see, to that effect, judgment in Lindberg, C‑267/03, EU:C:2005:246, paragraph 87)’. (
22
)
49.
According to the Commission, the Court’s citation of Lindberg as support for the CIA authorisation exception implies that that rule applies only to the categories of technical regulation that were relevant at the time of Lindberg. That would then exclude rules on information society services, which were only added to the definition of technical regulation after the Lindberg judgment. (
23
)
50.
I disagree.
51.
In paragraph 76 of Ince, the Court does not say ‘within the meaning of Article 1(11) of that directive according to its wording at the time of the facts in Lindberg’. It is true that the Court cites Lindberg as a precedent, but its reference to Article 1(11) of the directive can in my view only be read as a reference to that provision at the time of the facts in Ince, which was the case before the Court.
52.
Nor do I find the Commission’s reference to recital 18 of Directive 98/48 convincing. That recital includes the statement that ‘… whereas, for example, rules on the establishment of service providers, in particular those on authorisation or licensing arrangements, are accordingly covered …’.
53.
That recital must in my opinion be read in the light of the distinction referred to above in points 38 to 39 between the existence of an authorisation (or licensing) requirement and the conditions thereof. Whereas the notification requirement applies in relation to the conditions of providing an information society service (generally including conditions of authorisation, licensing and content of the service), the mere existence of a prior authorisation requirement is not in itself notifiable. (
24
)
54.
There is, finally, also a broader systemic argument militating against the interpretation of the CIA authorisation exception as suggested by the Commission: legislative coherence and consistency. The Commission is essentially claiming that the rules on information society services are by their nature so different that the case-law generally applicable to Directive 98/34 should be differentiated in their regard. But if that were really the case, one cannot but wonder about the legislative technique chosen by the Commission for regulating the notification duty with regard to those services. It was, after all, following the proposal of the Commission that Directive 98/48 (
25
) entered into force just one month after Directive 98/34, and inserted, into a legislative instrument that was previously concerned primarily with products, a specific category of information society services.
55.
Within such a context, it is hardly surprising that the Court, as any other higher jurisdiction, is bound to favour an interpretation that fosters commonality and coherence within one and the same piece of legislation, instead of further particularising an already complex area of law.
56.
I therefore do not consider it necessary to revisit the judgments in Ince and M. and S. to restrict the scope of application of the CIA authorisation exception. (
26
)
(e)
Conclusion
57.
In the light of the foregoing, and in so far as the relevant national provisions relate to gaming services, I propose that the Court reply to the questions of the Københavns Byret (District Court, Copenhagan) as follows:
To the extent that they relate to gaming services, national rules such as those contained in paragraph 10, first indent, (1) and paragraph 10, third indent, (3) of Law No 204 of 26 March 2003 amending the Law on certain gaming, lotteries and betting and other laws and repealing the Law on horse and dog race betting, are not rules that constitute ‘technical regulations’ within the meaning of Article 1(11) of Directive 98/34, as amended by Directive 98/48.
3.
The specificity requirement
58.
The analysis in Section 2 above concludes that, in so far as they regulate gaming services, the Paragraph 10(1)(1) Rule and the Paragraph 10(3)(3) Rule fall within the CIA authorisation exception and are therefore not notifiable ‘technical regulations’ under Directive 98/34.
59.
Nonetheless, should the Court come to a different conclusion and decide that those provisions do not fall within the CIA authorisation exception, it must be considered whether they then constitute ‘rules on [information society gaming] services’ within the meaning of Article 1(5) of Directive 98/34.
60.
However, in any event and independently of the application of the CIA authorisation exception, it must also be determined whether the Paragraph 10(3)(3) Rule, read and approached on its own, constitutes a ‘rule on information society [advertising] services’ within the meaning of that provision.
61.
In both cases, the legal assessment is similar. It ultimately depends on whether the Paragraph 10(1)(1) Rule or the Paragraph 10(3)(3) Rule is ‘specifically aimed’ at regulating information society services, ‘having regard to its statement of reasons and its operative part’. It falls to the referring court to make the final assessment of that issue. However, in my opinion, there are a number of elements tending to show that neither rule has that specific aim.
62.
I begin the analysis by looking in the next section at the notion of ‘specific aim’ in the context of legislative amendments.
(a)
Application of the notion of ‘rule on services’ in the context of legislative adaptations
63.
Recitals 7 and 8 of Directive 98/48 underline the concern that adaptation of national legislation to take account of new information society services would lead to a ‘refragmentation of the internal market, over-regulation and regulatory inconsistencies’. That was one of the main purposes behind the expansion of the notion of ‘technical regulations’ (and the notification requirement) to include ‘rules on services’. Where such adaptation is ‘specifically aimed’ at ensuring regulation of new information society services, it would fall within the notion of ‘rule on [information society] services’.
64.
In their observations, the Defendants and the Commission argue that the 2003 Amendment is an example of such adaptation, which ‘specifically aims’ at regulating information society services. That is the case even though, on the face of it, the modified law is apparently neutral as regards medium (that is, it relates without distinction to online and offline services). Indeed, whether adaptations to the new economy are explicitly presented as such, or whether they are presented in more technologically neutral terms is a simple question of legislative technique. It should not affect the classification of such adaptations as ‘rules on services’.
65.
It is in that context that the Defendants and the Commission stress the importance, when assessing the ‘specific aim’ of a rule, to look beyond the text itself and consider the ‘statement of reasons’.
66.
For its part, the Danish Government notes that the 2003 Amendment abrogated and merged previously existing legislation on betting. It argues that both the Paragraph 10(1)(1) Rule and the Paragraph 10(3)(3) Rule already existed in the two earlier pieces of legislation that preceded the current legislation. Those rules were always neutral as regards medium (applying to advertising on all media and unlicensed gaming irrespective of distribution channel). (
27
) The 2003 Amendment did not change the scope of the restrictions on gaming and advertising services. Instead it simply clarified their existing scope, to resolve any possible doubt in that regard, which was also important since those provisions involved criminal penalties.
67.
I set out below a more detailed analysis of the various components of the definition of ‘rule on services’ as defined in Directive 98/34 (under (b), (c) and (d)) before considering how the concept might be applied in the present case (under (e)).
(b)
Positive and negative elements of the definition of ‘rule on services’
68.
Article 1(5) of Directive 98/34 explicitly excludes from the notion of ‘rule on services’ any rule which is ‘not specifically aimed at [information society services]’. That provision goes on to give positive and negative delineation of what is meant by ‘specifically aimed’:
‘— a rule shall be considered to be specifically aimed at Information Society services where, having regard to its statement of reasons and its operative part, the specific aim and object of all or some of its individual provisions is to regulate such services in an explicit and targeted manner,
— a rule shall not be considered to be specifically aimed at Information Society services if it affects such services only in an implicit or incidental manner.’
69.
In its pleadings, the Commission argued that the negative definition above must be read as an exception and therefore be interpreted narrowly.
70.
I disagree.
71.
The fact that exceptions must be interpreted narrowly is indeed a well-established rule of legal interpretation. However, in my view, that rule is not applicable here: Article 1(5) simply contains a two-part definition. Its first part is defined in positive terms. Its second part, of equal standing and value, (
28
) is formulated in negative terms. As far as legislative technique is concerned, the positive and negative elements of the definition are complementary. Read together they define the scope of the notion of ‘rule on services’.
(c)
To be or not to be ‘specifically aimed’
72.
In order to constitute a ‘rule on services’ the rule must be ‘specifically aimed’ at information society services. In other words, all or some of its provisions must single out information society services for regulation.
73.
To be considered as ‘specifically aimed’ at information society services, the positive part of the definition states two cumulative conditions: the rule — or some of its provisions — must ‘regulate’ information society services in an ‘explicit and targeted’ way. By contrast, according to the negative part of the definition, a rule will fall outside the notion of ‘rules on services’ where it ‘affects’ the services in an ‘implicit or incidental’ way.
74.
As a preliminary point, in my view the reference to ‘affect’ in the negative part of the definition should not be read as referring to how the rule in practice impacts on information society services after entering into force. It is true that on a literal reading of, for example, the English and German versions, such an interpretation is possible. However, that is not the case for many language versions, including the Danish version. (
29
) Moreover, such a reading would be wholly unpredictable and inappropriate in the light of the ex ante nature of the notification obligation. (
30
) It would require the national legislator to know, at the time of drafting the rules, when the legislation has to be notified, precisely what its impact in the real world would be.
75.
True, such a refusal to take into account future effects might be taken advantage of by a particularly devious and prescient legislator, an evil genius, who intentionally drafts laws so as to disguise their true meaning, already at that stage knowing that their impact will be different from their wording. However, such unlikely scenarios should in my view not be determining factors in the interpretation of EU rules. (
31
)
76.
Both parts of the definition should rather be read as being primarily concerned with the text of the rule and the legislative intent underpinning it as it stood at the time of drafting and adoption.
77.
The key element of the definition that is common to both its parts is that the rule must be ‘specifically aimed’ at information society services. In my opinion, it could generally be expected that, if the ‘specific aim’ of a rule or provision is to regulate a service on a particular medium, there is likely to be an explicit trace of that fact in the text of the measure itself, for example through the use of particular vocabulary (‘online’, ‘internet’, ‘electronic’ and so on).
78.
Again, it is theoretically conceivable that a particular approach to drafting might deliberately seek to dissimulate the ‘specific aim’. As I sought to explain in the preceding points, such situations cannot be excluded, but should remain very, very exceptional. Generally speaking, if indeed there are ‘specific aims’ that relate to information society services, one would hope to get at least a glimpse of that from their wording.
79.
The positive part of the definition of rules on services also refers to the specific aim following from the ‘targeted’ nature of the regulation. The term ‘targeted’ would imply that a limited material scope is given to the rule in terms of medium specificity (online or offline). Again, that in turn is likely to be reflected in the wording of the rule.
80.
It follows from the above that, where a rule on the face of it applies to services without distinction as to medium (whether online or offline), there is in my view already a strong indication that the ‘specific aim’ is not the regulation of information society services.
(d)
Statement of reasons
81.
However, it is not sufficient to base the assessment of the specific aim on the text of the rule alone. As the positive definition states, regard must be had both to the ‘operative part’ of the rule and its ‘statement of reasons’.
82.
Directive 98/34 does not explain the meaning of those terms. However, I consider that that ‘operative part’ clearly refers to the wording — to the text of the rule itself.
83.
The meaning of ‘statement of reasons’ is less clear. The natural meaning of those words is a reference to the documented justification for the adoption of the rule. The directive is silent on how to identify that justification. Instrumentally, must it feature in the body of the measure itself (for example in the form of recitals) or could it also potentially refer to separate documents (for example, explanatory memoranda submitted by the drafter together with the bill)? Institutionally, must the statement of reasons emanate from and be endorsed by the same institution as the rule itself? (
32
) Temporally, must the statement of reasons predate or be contemporaneous with the rule? (
33
)
84.
In answering those questions, deference is due to the Member States and their institutions at both a general and case-specific level.
85.
First, on the general level, what amounts to such a ‘statement of reasons’ in the sense of documented justification for the adoption of the rule will be dependent on each Member State’s own rule-making procedures and on the value attached to the individual documents produced before or in the course of such procedures.
86.
Second, specificities of each individual case must also be taken into account, with regard to the rule under examination. It might, for example, happen that the rule as originally proposed in a bill by the national government (and as duly documented in the explanatory memorandum submitted together with the bill to the Parliament) has been considerably changed in Parliament. Or even newly introduced in a Parliamentary Committee, without much of a debate. Or it might be that the version of the rule ultimately adopted came only after a lengthy discussion involving a number of institutions and its members, thus making any objective ‘statement of reasons’ difficult or even impossible to trace. (
34
)
87.
Yet again, all such considerations weigh heavily in favour of the following approach: when assessing if a national rule is ‘specifically aimed’ at information society services, the most important element must be the wording of the rule itself, that is, its operative part. The statement of reasons might help with its interpretation. It might settle doubts or questions. But a statement of reasons cannot and should not be read as if it were legally equivalent to the ‘operative part’ of the rule itself.
(e)
Application to the present case
88.
It is ultimately for the national court to assess the specific aim of the Paragraph 10(1)(1) Rule and the Paragraph 10(3)(3) Rule, as introduced by the 2003 Amendment, in the light of the above principles. I make the following observations to assist in that assessment.
89.
First, different interpretations of those rules and of the 2003 Amendment more generally are proposed by the parties. On the one hand, the Danish Government presents the amendments as a mere clarification of the existing law. On the other hand, the Defendants and the Commission present the amendments as specifically aimed at extending the scope of the prior rules to cover information society services. In their view, that specific aim is ‘hidden’ in the text of the rule itself but evident from the comments on the draft 2003 Amendment.
90.
If the national court concludes that the Paragraph 10(1)(1) Rule and/or Paragraph 10(3)(3) Rule did constitute a mere clarification of the corresponding provisions that they replaced, they would not and could not amount to notifiable technical regulations. (
35
) I note in that regard that, as reflected in the referring court’s questions, the extract from the comments on the draft 2003 Amendment which specifically relates to the purpose of the Paragraph 10(3)(3) Rule states that the latter ‘corresponds’ to [‘overensstemmelse’] a provision already existing in the Law on horse race betting and is a ‘clarification’ [‘præcisering’] of a provision in the Law on betting and lotteries. (
36
) It was, moreover, confirmed at the oral hearing that both those pre-existing provisions were ‘medium neutral’, in the sense that they did not explicitly relate to a particular medium of delivery (paper, radio, television, online and so on).
91.
Second, to the extent that this is not a case of mere clarification, significant weight must, in my view, be attached to the fact that a rule is, on its face, applicable without distinction to all services regardless of whether they are delivered online or offline. I refer in that regard to the reasons set out above in particular in points 72 to 80. In such circumstances, a very clear and compelling evidence of the ‘explicit and targeted’ nature of the regulation of information society services in the statement of reasons would be necessary.
92.
Third, in interpreting the statement of reasons, it is for the national court to decide what value to attach to specific documents or parts of documents, in particular in the light of the role they play in the legislative process and the interpretative value accorded to them more generally.
93.
However, specifically as regards the question of whether the Paragraph 10(3)(3) Rule constitutes a rule on information society advertising services, I note the following. On the basis of the referring court’s request, the purpose of that rule is to ensure indirectly better enforcement of the prohibition on unlicensed offering of gaming. Regulation of advertising, let alone online advertising, does not appear to be a specific aim. Rather it appears to be simply a means to an end: better regulation of gaming services. Indeed, neither the referring court nor any of the parties defended the position that the specific purpose of the 2003 Amendment was to extend the regulation of advertising to online advertising services.
94.
To an eye untrained in Danish law, that indeed seems to be reflected in the extracts of the comments on the draft 2003 Amendment relating specifically to the Paragraph 10(3)(3) Rule. (
37
) Reference in those comments to advertising in the form of information society services does not, at face value, seem to me to be the focus.
95.
In their pleadings, the Defendants and the Commission repeatedly cited other parts of the comments on the draft 2003 Amendment. But again, the weight to be attached to those references and whether they add up to a ‘specific aim’ is in my view unclear. Nor is it clear to what extent those other parts of the comments are relevant for assessing the aim of the Paragraph 10(3)(3) Rule, which is after all the basis of the prosecution in this case. Again, those are all very much questions of national law that have to be addressed by the national court.
V. Conclusion
96.
In the light of the foregoing, and in so far as the relevant national provisions relate to advertising services, I propose that the Court reply to the questions of the Københavns Byret (District Court, Copenhagen, Denmark) as follows:
To the extent that they relate to gaming services, national rules such as those contained in paragraph 10, first indent, (1) and paragraph 10, third indent, (3) of lov nr. 204 af 26. marts 2003 om ændring af lov om visse spil, lotterier og væddemål og andre love og om ophævelse af lov om væddemål i forbindelse med heste- og hundevæddeløb lov om væddemål i forbindelse med heste- og hundevæddeløb (Law No 204 of 26 March 2003 amending the Law on certain gaming, lotteries and betting and other laws and repealing the Law on horse and dog race betting), are not rules that constitute ‘technical regulations’ within the meaning of Article 1(11) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations, as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998.
To the extent that they relate to advertising services, an amendment to national rules such as the rule contained in paragraph 10, third indent, (3) of Law No 204 of 26 March 2003 amending the Law on certain gaming, lotteries and betting and other laws and repealing the Law on horse and dog race betting, is not a rule that constitutes a ‘technical regulation’ within the meaning of Article 1(11) of Directive 98/34, as amended by Directive 98/48, unless such amendment is specifically aimed at information society services. In determining whether the rule is specifically aimed at information society services, the national court should have regard to, in particular:
—
whether the amendment merely clarifies or changes the scope of the rule;
—
the text of the rule before and after amendment and any explicit wording in the amendments that might be interpreted as a specific reference to information society services;
—
evidence of the aim(s) of the amendment to the rule, as expressed in the statement of reasons.
(
1
)	Original language: English.
(
2
)	Directive of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1998 L 204, p. 37).
(
3
)	Directive of the European Parliament and of the Council of 20 July 1998 amending Directive 98/34 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1998 L 217, p. 18).
(
4
)	Strictly speaking, it is not Paragraph 10 of the 2003 Amendment but rather Paragraph 10 of the Law on certain gaming, lotteries and betting, which was amended by Paragraph 1(20) of the 2003 Amendment. However, for shorthand I will refer to Paragraph 10 of the 2003 Amendment.
(
5
)	As was explained at the hearing, as part of the legislative process in Denmark, an explanatory memorandum is submitted by the author of the bill alongside the bill to the legislative assembly. That document is called ‘draft law with comments’ (lovforslag med bemærkninger). Throughout this Opinion, I shall use the term ‘comments [on the draft 2003 Amendment]’ when referring to the specific Danish case. I more generally discuss the notion of ‘statement of reasons’ within the meaning of Article 1(5) of Directive 98/34 further below, in points 81 to 87.
(
6
)	For example, see judgment of 11 November 2015, Pujante Rivera (C‑422/14, EU:C:2015:743, paragraph 20).
(
7
)	Judgment of 30 April 1996, CIA Security International (C‑194/94, EU:C:1996:172).
(
8
)	Judgment of 4 February 2016, Ince (C‑336/14, EU:C:2016:72, paragraph 70).
(
9
)	Judgments of 4 February 2016, Ince (C‑336/14, EU:C:2016:72, paragraph 76), and of 13 October 2016, M. and S. (C‑303/15, EU:C:2016:771, paragraph 30). This case-law takes over similar wording from earlier judgments applying the corresponding provision of the directive which preceded the current directive (Article 1(9) of Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1983 L 109, p. 8)). See, for example, judgment of 21 April 2005, Lindberg (C‑267/03, EU:C:2005:246, paragraph 87).
(
10
)	The judgment in Ince provides a good illustration of that point. That case concerned a German gambling law, with a provision that stated: ‘The organisation or intermediation of public games of chance may take place only with the authorisation of the competent authority of the Land concerned. All organisation or intermediation of such games is prohibited without such authorisation (unlawful games of chance).’ Here the two sides of the same coin are clearly ‘juxtaposed’, so to speak. That provision was held in the judgment to fall within the CIA authorisation exception. Judgment of 4 February 2016, Ince (C‑336/14, EU:C:2016:72, paragraphs 11 and 76).
(
11
)	On the genesis and development of this rule, see my Opinion in M. and S. (C‑303/15, EU:C:2016:531, point 30 et seq.).
(
12
)	In that sense, see the judgment in Lidl Italia describing the prohibition and the imposition of penalties in case of breach as both being parts of the notifiable technical rule. Judgment of 8 September 2005, Lidl Italia (C‑303/04, EU:C:2005:528, paragraph 13).
(
13
)	Judgments of 19 July 2012, Fortuna and Others (C‑213/11, C‑214/11 and C‑217/11, EU:C:2012:495), and of 13 October 2016, M. and S. (C‑303/15, EU:C:2016:771).
(
14
)	Article 6(1) of the Ustawa o grach hazardowych (Law on Games of Chance), of 19 November 2009 (Dz. U. of 2009, No 201, position 1540) states: ‘The organisation of roulette games, card games, dice games and gaming on machines requires a licence to operate a gaming casino’ (emphasis added).
(
15
)	According to Article 14(1) of the Law on Games of Chance: ‘The organisation of roulette games, card games, dice games and gaming on machines shall be permitted only in gaming casinos’ (emphasis added).
(
16
)	Judgment of 13 October 2016, M. and S. (C‑303/15, EU:C:2016:771, paragraph 29).
(
17
)	As that term is used in common parlance without attributing to it any specific legal meaning or consequences.
(
18
)	Judgments of 4 February 2016, Ince (C‑336/14, EU:C:2016:72, paragraph 76), and of 13 October 2016, M. and S. (C‑303/15, EU:C:2016:771, paragraph 30).
(
19
)	I recall that the Commission had held the position in the M. and S. case that the rule should be abandoned altogether (see my Opinion in M. and S. (C‑303/15, EU:C:2016:531, point 34)). That Commission proposal to overrule was rejected by the Court in its judgment.
(
20
)	Judgment of 4 February 2016, Ince (C‑336/14, EU:C:2016:72).
(
21
)	Prohibition of offering games of chance on the internet and exceptions; restrictions placed on offering sporting bets via telemedia services; prohibition of broadcasting advertisements for games of chance on the internet or via telecommunications equipment. Judgment of 4 February 2016, Ince (C‑336/14, EU:C:2016:72).
(
22
)	Judgment of 4 February 2016, Ince (C‑336/14, EU:C:2016:72, paragraph 76).
(
23
)	Judgment of 21 April 2005, Lindberg (C‑267/03, EU:C:2005:246).
(
24
)	It might be added that a similar distinction is also mirrored elsewhere in EU regulatory law, for example, in relation to prior authorisation regimes for specific foodstuffs not regulated at EU level. In such a case, the existence of the authorisation regime is generally treated as unproblematic, with the focus being on the procedure for obtaining the authorisation and the substantive conditions that attach thereto. See, for example, judgments of 5 February 2004, Greenham and Abel (C‑95/01, EU:C:2004:71), and of 27 April 2017, Noria Distribution (C‑672/15, EU:C:2017:310).
(
25
)	See above, footnotes 2 and 3.
(
26
)	Judgments of 4 February 2016, Ince (C‑336/14, EU:C:2016:72), and of 13 October 2016, M. and S. (C‑303/15, EU:C:2016:771).
(
27
)	As regards the Paragraph 10(3)(3) Rule, reference is made in the comments on the draft 2003 Amendment to Paragraph 12(3) of the lov om væddemål i forbindelse med heste- og hundevæddeløb (Law on horse and dog race betting), and Paragraph 10(4) of the tips- og lottoloven (Law on betting and lotteries).
(
28
)	Looked at systematically, both parts of the definition are on the same level (same indent and hyphen), the use of which in this and other definitional provisions of Directive 98/34 clearly indicates information (conditions, scenarios, lists) of the same value.
(
29
)	The different language versions use very different verbs in this particular provision. Thus, for example, the Danish, French, and Italian versions use ‘vedrører’, ‘concerne’ and ‘riguarda’ (in English ‘concern’). The Czech and German ‘působí-li’ and ‘aufwirkt’ are close to the English ‘affects’. The Polish and Spanish versions use the verb ‘odnosi’ and ‘se refiere’ (in English ‘refers to’).
(
30
)	For similar issues, see my Opinion in M. and S. (C‑303/15, EU:C:2016:531).
(
31
)	The alternative would clearly be at odds with the notion of mutual trust and cooperation. More practically, legislation which says something other than what it wishes to do is not very likely to be followed by its addressees, who are, perhaps unsurprisingly, also likely to rely on its text.
(
32
)	To take an EU example, reference can be made to a proposal of the Commission and supporting explanatory memorandum as support for a particular reading of a directive of the European Parliament and Council. However, the Commission’s intentions ultimately cannot be equated with those of the legislature.
(
33
)	See in that regard, my Opinion in Scialdone (C‑574/15, EU:C:2017:553, points 37 and 38).
(
34
)	To put the same point more bluntly, with the assistance of a popular quote that I am not able to attribute to one single author: a camel is a horse designed by a committee.
(
35
)	Judgment of 21 April 2005, Lindberg (C‑267/03, EU:C:2005:246, paragraphs 82 and 83). In that sense, the comments on the draft 2003 Amendment, which specifically relate to the Paragraph 10(3)(3) Rule state that the ‘modification corresponds to the prohibition currently appearing in Paragraph 12(3) of the Law on horse race betting but is a clarification of Paragraph 10(4) of the Law on betting and lotteries’.
(
36
)	See above in point 8 of this Opinion.
(
37
)	Reproduced above in point 8 of this Opinion.