Case C‑3/17

Sporting Odds Ltd

v

Nemzeti Adó- és Vámhivatal Központi Irányítása

(Request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság)

(Reference for a preliminary ruling — Freedom to provide services — Article 56 TFEU — Article 4(3) TEU — Charter of Fundamental Rights of the European Union — Restrictions — Betting and gaming — National legislation — Operation of certain kinds of games of chance by the State — Exclusivity — Licensing system for other kinds of games of chance — Requirement of a licence — Administrative penalty)

Summary — Judgment of the Court (Sixth Chamber), 28 February 2018

Freedom to provide services—Restrictions—Games of chance—National legislation restricting the exercise of a fundamental liberty of the European Union—Justification—Burden of proof on the Member State—Obligation to provide an analysis of the effects of the restrictive measure—None—Overall assessment by the national court

Freedom to provide services—Restrictions—Games of chance—National legislation restricting the exercise of a fundamental freedom of the European Union—Justification—Burden of proof on the Member State—Duty of the court seised to draw all inferences which result from a lack of evidence

Freedom to provide services—Restrictions—Games of chance—Verification by the national court of the compliance with European Union law of a national law restricting a fundamental freedom of the European Union—Failure to examine of the national court to examine of its own motion the proportionality of that legislation—Burden of proof on the parties—Lawfulness

Freedom to provide services—Restrictions—Games of chance—National legislation instituting a system of concession and licences for the organisation of online games of chance—Impossibility in practice for operators established in other Member States to obtain such a concession or a licence—Unlawful—Failure to observe the duty of transparency

Freedom to provide services—Restrictions—Games of chance—National legislation instituting a State monopoly for the organisation of certain games of chance and a concessions and licence system for the organisation of games of chance—Lawfulness—Conditions—Determination by the national court

Article 56 TFEU must be interpreted as meaning that it does not, in principle, preclude a dual system of organisation of the market for games of chance under which certain types of those games fall with the State monopoly system, while others fall within the system of concessions and licences for the organisation of games of chance, if the referring court establishes that the rules restricting the freedom to provide services do, in fact, pursue the objectives relied on by the Member State concerned in a consistent and systematic manner.

Article 56 TFEU must be interpreted as meaning that it precludes a national measure, such as that at issue in the main proceedings, according to which the grant of a licence to organise online games of chance is reserved exclusively to operators of games of chance holding a concession for a casino situated on national territory, since that rule does not constitute a condition indispensable to the achievement of the desired objectives, and that there are less restrictive measures which are capable of attaining them. Although it is common ground that, because of the lack of direct contact between consumer and operator, games of chance accessible via the internet involve different and more substantial risks of fraud by operators against consumers compared with the traditional markets for such games (judgment of 8 September 2009, Liga Portuguesa de FutebolProfissional and Bwin International, C‑42/07, EU:C:2009:519, paragraph 70), the provision at issue must nevertheless satisfy the conditions laid down in the case-law of the Court as regards their proportionality (see, to that effect, judgment of 6 March 2007, Placanica and Others, C‑338/04, C‑359/04 and C‑360/04, EU:C:2007:133, paragraph 48). (see paras 41, 44, operative part 2)

Article 56 TFEU must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which introduces a system of concessions and licences for the organisation of online games of chance, if it contains discriminatory rules with regard to operators established in other Member States or if it lays down rules which are not discriminatory but which are applied in a manner which is not transparent or are implemented in such a way as to prevent or hinder an application from certain tenderers established in other Member States. (see para. 49, operative part 3)

Article 56 TFEU, read in conjunction with Articles 47 and 48 of the Charter of Fundamental Rights, must be interpreted as meaning that it is for a Member State which has put in place restrictive legislation to provide evidence to prove the existence of objectives capable of justifying a restriction on a fundamental freedom guaranteed by the FEU Treaty and its proportionality, in the absence of which the national court must draw all the inferences which result from such a failure. (see para. 57, operative part 4)

Article 56 TFEU, read in conjunction with Articles 47 and 48 of the Charter of Fundamental Rights, must be interpreted as meaning that it is for a Member State which has put in place restrictive legislation to provide evidence to prove the existence of objectives capable of justifying a restriction on a fundamental freedom guaranteed by the FEU Treaty and its proportionality, in the absence of which the national court must draw all the inferences which result from such a failure. (see para. 60, operative part 5)

Article 56 TFEU must be interpreted as meaning that it cannot be held that a Member State has failed to satisfy its obligation to justify a restrictive measure because it has failed to provide an analysis of the effects of that measure on the date on which that measure was introduced into national law or the date of the examination of such a measure by the national court. It is for the national court to carry out a global assessment of the circumstances in which restrictive legislation, such as that at issue in the main proceedings, was adopted and implemented (judgment of 30 April 2014, Pfleger and Others, C‑390/12, EU:C:2014:281, paragraph 52) and not to state solely that a preliminary study of the effects of legislation has not been carried out. (see paras 64, 65, operative part 6)