OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 5 April 2017 ( 1 )

Case C‑49/16

Unibet International Limited

v

Nemzeti Adó- és Vámhivatal Központi Hivatal

(Request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administrative and Labour Court, Hungary))

‛Freedom to provide services — Article 56 TFEU — Online games of chance — Restriction — Compatibility of license requirement with principles of equal treatment and transparency — Administrative penalties’

1. Unibet International Limited (‘Unibet’), the applicant in the main proceedings, has its registered office in Malta and holds licences to organise games of chance issued by the authorities of various Member States. It offered online games of chance in Hungary without having obtained the corresponding licence to do so, which is why two administrative decisions concerning it were made by the Hungarian authorities, blocking access to its internet sites in Hungary.

2. The Court is therefore asked to rule on whether national legislation such as that on which those administrative decisions were based is compatible with the freedom to provide services, enshrined in Article 56 TFEU. The core question that the Court is faced with in this context is, therefore, whether a Malta-based firm intending to offer online games of chance on the Hungarian market should not be subject to the requirement of obtaining a licence if it is obvious from the outset that participation in a procedure for obtaining such a licence would not be successful.

Legal framework

3. The provisions of Hungarian law in the context of the present case stem from two legal instruments: szerencsejáték szervezéséről szóló 1991. évi XXXIV törvény (Law XXXIV of 1991 on the organisation of games of chance; ‘the Law on games of chance’) and a koncesszióról szóló 1991. évi XVI. törvény (Law XVI of 1991 on Concessions; ‘the Law on Concessions’). Since there are, as will be seen in more detail below, two contested administrative decisions blocking access to Unibet’s internet sites in Hungary, made in the context of two different legal situations, it is necessary to describe the law as it stood on the respective dates of those decisions, that is on 25 June 2014 and on 29 August 2014.

Hungarian legislation on 25 June 2014

Law on games of chance

4. Pursuant to Article 1(1) of the Law on games of chance, games of chances are those games in which the player, in exchange for a payment of money or some other valuable consideration, is entitled to win a cash prize or other prize of economic value if a particular condition comes about or is fulfilled. Losing or winning must be exclusively, or predominantly, a matter of chance. Article 1(2) of the Law on games of chance specifies that betting is also to be regarded as a game of chance and that that law also applies, in the cases specifically provided for therein, to gaming machines and promotional draws.

5. As a result of Article 1(3)(e) of the Law on games of chance, the organisation of online games of chance is also regarded as an activity of organising games of chance, within the meaning of Article 1(1)(i) of the Law on Concessions.

6. Article 1(4) and (5) of the Law on games of chance state that the activity of organising games of chance that allow participation, from Hungarian territory, by means of telecommunications systems or equipment, may be carried on solely in accordance with the provisions of that law, that the publication of tenders to participate in games of chance organised by means of telecommunications systems or equipment requires a licence issued by the State tax authorities, and that financial institutions and providers of telecommunications services may not contribute to publishing or receiving tenders to participate in games of chance if they do not hold a licence, nor may they provide technical support for them.

7. Under Hungarian legislation as it stood on the date of the first administrative decision, as a result of Article 3(1)(a) and Article 3(3) of the Law on games of chance, the organisation of lotteries and betting, with the exception of betting on horses and bet brokerage, was exclusively reserved to the State operator of games of chance.

8. However, the State could temporarily assign to third parties the right to carry on games of chance by means of a concession contract.

9. Such a concession contract could either be obtained further to the competent Minister issuing a public call for tenders (Article 4(1) of the Law on games of chance, in combination with Article 5(1) of the Law on Concessions) or without a call for tenders having been issued to a ‘trustworthy operator of games of chance’ (Article 4(6) of the Law on games of chance, in combination with Article 10/C(2) of the Law on Concessions).

10. It has been found by the referring court that a call for tenders had never been organised.

11. A ‘trustworthy operator of games of chance’, as required in Article 37(30)(d) of the Law on games of chance, had to have carried on the activity of organising games of chance in Hungary for at least 10 years. Moreover, it had to have the minimum equity capital of HUF 200000000 (Article 29/D of the Law on games of chance).

Law on Concessions

12. Article 10/C(3) of the Law on Concessions required a trustworthy operator of games of chance to submit a tender in which it had to indicate the location of the units which it intended to operate and to give an undertaking to pay, for every one of them, an annual concession fee equivalent to at least double the concession fee determined in the General Budget Law then in force.

Hungarian legislation on 29 August 2014

Law on games of chance

13. As a result of the newly-formulated Article 3(3) of the Law on games of chance, online games of chance were no longer reserved exclusively to the State operator of games of chance.

14. A ‘trustworthy operator of games of chance’, as required in Article 37(30)(d) of the Law on games of chance, had to have carried on the activity of organising games, in the State which issued the licence for the activity of games of chance, for at least 3 years. Moreover, it had to have minimum equity capital of HUF 50 million (Article 29/D of the Law on games of chance).

15. These changes to the Law on games of chance entered into force on 15 July 2014.

Law on Concessions

16. Article 10/C(3a)(b) of the Law on Concessions required a trustworthy operator of games of chance to indicate, in its tender, for every type of game, the annual fee for the concession in accordance with the reference fee for concessions determined in the General Budget Law, depending on the type of the game.

Facts, procedure and questions referred

17. Unibet, the applicant in the main proceedings, has its registered office in Malta and holds licences to organise games of chance issued by the authorities of various EU Member States.

18. The Hungarian Central National Treasury and Customs Administration (‘the tax authority’), the defendant in the main proceedings, in its role of supervisory authority for games of chance, made inspections of the content of internet sites used by Unibet in the summer of 2014.

19. Further to such inspections, the tax authority found that access was possible to games of chance within the meaning of the Hungarian provisions on games of chance, although Unibet did not possess the required licences.

20. The tax authority, on 25 April and 29 August 2014, adopted two decisions with respect to Unibet, temporarily prohibiting access from Hungary to the internet sites inspected. Subsequently, by other decisions, which are, as I understand, not the subject of this specific case before the referring court, the tax authority imposed a fine for repeated infringement of legal rules.

21. Unibet contests the tax authority’s decisions of 25 April and 29 August 2014, ordering temporary blocking of access, requesting that they be set aside. In its view, they were adopted under legislation that is contrary to Article 56 TFEU. Unibet alleges that the requirements in the legislation are so exclusionary that, in practice, they make it impossible for it to obtain the concession that constitutes the precondition for the licence for organising games of chance online.

22. As regards the first decision, it claims that, first, no call for tenders was issued for the award of the concession, and, secondly, it was not authorised to submit a tender, as it did not meet the legal requirements for being treated as a trustworthy operator of games of chance.

23. Concerning the second decision, it claims that the changes made to the Law on games of chance had merely been made roughly six weeks before the second administrative decision, which was too short a period for submitting a fully detailed tender.

24. It is in the context of these proceedings that, by order of 9 December 2015, received at the Court on 27 January 2016, the Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administrative and Labour Court, Hungary) referred the following questions for a preliminary ruling: ‘(1) Must Article 56 TFEU be interpreted as precluding a national measure pursuant to which the law of a Member State, by means of issuing a call for tenders for the award of a concession or receiving a tender submitted in order to obtain such a concession, as the case may be, guarantees the theoretical possibility that any operator fulfilling the legal requirements — including an operator established in another Member State — may obtain a concession for the provision of non‑liberalised online games of chance, through either a public call for tenders or of the submission of a tender, where the Member State in question does not in fact call for tenders for the award of a concession and the service provider likewise, in practice, has no opportunity of submitting a tender, and where the authorities of the Member State declare that the service provider infringed legal rules by providing the service without holding a licence based on the concession and impose on that provider the administrative penalty provided for in the legislation (temporary blocking of access and the imposition of a fine in the event of repeated infringements)? (2) Does Article 56 TFEU prevent a Member State from introducing provisions of higher rank, from the point of view of domestic law, that offer operators of online games of chance the theoretical possibility of providing online games of chance on a cross-border basis, where, for want of any lower-ranking implementing provisions in the Member State, those operators cannot in fact obtain the administrative licences necessary for the provision of the service? (3) In so far as the court hearing the main proceedings may declare, in the light of the answers given to the foregoing questions, that the Member State’s measure is contrary to Article 56 TFEU, is that court acting in a manner compatible with EU law if it considers to be contrary to Article 56 TFEU not only the infringement of legal rules found by the decisions of the authorities of the Member State, on the ground that the service was provided without a licence, but also the administrative penalty imposed for that infringement (temporary blocking of access and fine)?’

25. Unibet and the Governments of Hungary, Belgium and Portugal submitted written observations, as did the European Commission. All of these presented oral argument at the hearing on 15 December 2016.

Analysis

Preliminary remarks

26. The case at issue is to be examined with respect to the Treaty provisions. Directives 2000/31/EC ( 2 ) and 2006/123/EC ( 3 ) do not apply to gambling activities. Since it transpires from the information available to the Court that Unibet is not established in Hungary, the relevant Treaty provisions are those pertaining to the freedom to provide services pursuant to Article 56 TFEU et seq.

27. The referring court seeks guidance as to the ruling to be given in a situation in which an operator of games of chance, legally established in another Member State and possessing licences in a number of Member States, offers games of chance in Hungary without a licence issued by the Hungarian authorities and without having taken any steps to obtain such a licence.

28. By the letter of its questions, the referring court does not actually appear to seek guidance from the Court as to the compatibility with Article 56 TFEU of the national legislation outlined in the legal framework of this Opinion. It rather appears to focus on the effect of a purported lack of implementing provisions accompanying that legislation.

29. Yet, in order properly to guide the referring Court and give a meaningful reply, we should first and foremost focus on the national legislation outlined in the legal framework. It is certainly in this way that I shall treat the three questions of the referring court. This also has as a consequence that the third question should be answered before the second question.

30. For the purposes of this Opinion, the terms licence, concession and authorisation requirement shall be used interchangeably.

First question

31. By its first question, the referring court in essence seeks to ascertain whether Article 56 TFEU precludes national legislation that provides that an operator of online games of chance, legally established in another Member State, has the theoretical possibility of obtaining a licence, when, de facto, a licence could not be obtained by that operator.

Restriction

32. Article 56 TFEU prohibits restrictions on freedom to provide services within the Union for nationals of Member States who are established in a Member State other than that of the person for whom the services are intended. Article 57 TFEU defines ‘services’ as services which are normally provided for remuneration, in so far as they are not governed by the provisions relating to the freedom of movement for goods, capital or persons.

33. Unibet, established in Malta, intends to offer a service, via the internet, to customers based in Hungary. In this respect, the Court has already held that games of chance offered online constitute a service within the meaning of Article 56 TFEU. ( 4 )

34. The question is whether there is a restriction on Unibet’s freedom to provide services in Hungary. All measures which prohibit, impede or render less attractive the exercise of the freedom to provide services must be regarded as constituting such restrictions. ( 5 ) The freedom to provide services under Article 56 TFEU requires thus not only the elimination of all discrimination against service providers established in other Member States on grounds of nationality, but also the abolition of any restriction, even if it applies without distinction to national service providers and service providers from other Member States. ( 6 ) Moreover, the freedom to provide services is for the benefit of both providers and recipients of services. ( 7 )

35. The Court furthermore consistently holds that legislation of a Member State which prohibits providers, established in other Member States, from offering via the internet services in the territory of that first Member State constitutes a restriction on the freedom to provide services enshrined in Article 56 TFEU. ( 8 ) Such legislation also imposes a restriction on the freedom of residents of the Member State concerned to enjoy, via the internet, services, which are offered in other Member States. ( 9 ) The same goes for such prohibitions in the absence of the prior authorisation of the administrative authorities. ( 10 )

36. On the basis of the long-standing case-law just mentioned, it is undeniable that the Hungarian legislation, both on the date of the first and of the second decision, constitutes a restriction on the freedom to provide services. On both dates, Unibet was obliged to go through a licensing procedure. The existence of a licensing procedure is enough to establish a restriction. All other questions, in particular those relating to the conditions and modalities of a licensing procedure, have to be examined in the context of a possible justification.

Justification

37. The question which remains is whether the Hungarian legislation can be justified. Here, we must examine the two administrative decisions separately.

– Administrative decision of 25 June 2014

38. It should be first recalled that neither is a State monopoly as such contrary to Article 56 TFEU, nor does that provision require Member States to liberalise markets in the domain of gambling. ( 11 ) The Hungarian Government appears to start from the idea that there is a monopoly in the case at issue. Yet, in my understanding of the preliminary reference, the referring court appears to assume that there is no monopoly. Apart from the fact that, as regards the interpretation of provisions of national law, the Court is in principle required to base its consideration on the description given in the order for reference, and that there is settled case-law that the Court of Justice does not have jurisdiction to interpret the internal law of a Member State, ( 12 ) my understanding is that there is no formal monopoly in the case at issue. For me, the question of whether or not there is a monopoly is a legal and not a factual one. And the legal situation in the case at issue is clear: according to the letter of the Hungarian law, in principle, operators offering online games of chance could enter the Hungarian market.

39. The requirement of a minimum of a 10-year operation in Hungary is (indirectly) discriminatory in nature, for it places at a systematic advantage operators established in Hungary in comparison to operators established elsewhere in the Union. As a consequence of this (indirect) discrimination on the basis of nationality, the only possible grounds of justification that can be invoked are the three written grounds provided for in Article 52 TFEU, read in combination with Article 62 TFEU: public policy, public security and public health. ( 13 ) Overriding reasons in the public interest which have, in principle, been recognised by the Court’s case-law, such as the objectives of consumer protection and the prevention of both fraud and incitement to squander money on gambling, as well as the general need to preserve the social order, ( 14 ) cannot be relied upon to justify discriminatory restrictions. ( 15 ) On top of that, the objective of maximising public revenue alone can never permit a restriction of the freedom to provide services. ( 16 )

40. It should be added that while the Court has, at times, been adamant ( 17 ) with respect to the limitation of grounds relating to public policy security and health as justification for discrimination, in other instances it has been more nuanced, which is why the case-law in this respect has been described as ‘not consistent’. ( 18 )

41. Be that as it may, the Hungarian authorities have not invoked any grounds of justification, let alone furnished any evidence as to their possible proportionality. Against this background, I do not see how the first administrative decision can be justified.

– Administrative decision of 29 August 2014

42. Here, on the basis of the information available, I do not see discrimination on the basis of nationality. It appears that in law and in fact Hungarian and foreign operators are treated in the same way. In particular, the 10-year rule, reduced to the 3-year rule, which is moreover no longer limited to operation in Hungary, appears to me to be a measure which is indistinctly applicable to both Hungarian and foreign operators.

43. As a result, the reasons in the public interest just stated can, in principle, be invoked as a valid ground of justification.

44. However, again, the Hungarian Government has not advanced any grounds of justification. ( 19 )

45. On the assumption, however, that the Hungarian legislation serves to protect an overriding reason in the public interest such as consumer protection, the prevention of fraud and incitement to squander money on gambling or, indeed, the general need to preserve the social order, such a system must nonetheless be proportionate.

46. Ergo, national legislation is appropriate for guaranteeing attainment of the objective pursued only if it genuinely reflects a concern to attain it in a consistent and systematic manner. ( 20 )

47. There is ample case-law of the Court on the matter of the question of justification of restrictive systems put in place by Member States in the domain of games of chance and, in particular, the question of proportionality. I shall limit myself to recalling to what is strictly necessary in the context of the present case.

48. An administrative permit scheme for the provision of games of chance is, in principle, permissible, as long as it is based on objective, non-discriminatory criteria known in advance that circumscribe the exercise of national authorities’ discretion so that it is not used arbitrarily. In principle, therefore, Member States are free to regulate in this domain as long as they respect EU law. ( 21 )

49. It is therefore necessary to recall the Court’s case-law relating to general principles to be respected by national authorities when they resort to a system of service concession contracts or licensing. Those principles derive from the Court’s case-law in the contexts of procurement, concessions and prior administrative authorisation procedures. The Court applies the same principles to those areas. ( 22 )

50. Public authorities concluding concession contracts are obliged to comply with the fundamental Treaty rules, including the principles of equal treatment and non-discrimination on the ground of nationality and with the consequent obligation of transparency. ( 23 ) That obligation of transparency, which is a corollary of the principle of equality, is designed essentially to ensure that any interested operator may take the decision to tender for contracts on the basis of all relevant information and to ensure the elimination of any risk of favouritism or arbitrariness on the part of the licensing authority. ( 24 ) It implies that all the conditions and detailed rules governing the award procedure must be drawn up in a clear, precise and unequivocal manner in the contract notice or tender specifications so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, second, the contracting authority is able to ascertain whether the bids submitted satisfy the criteria applying to the contract in question. ( 25 )

51. I should like to add that it is ultimately a matter for the referring court, which alone has jurisdiction to assess the facts and interpret the national legislation, to examine, in the light of those principles, whether the factors which it has set out, taken individually or through their combined effect, are capable of calling into question the compliance of a procedure for granting licences to organise online games of chance, such as that at issue in the main proceedings, with the principles of equal treatment and non-discrimination on the grounds of nationality and the consequent obligation of transparency. ( 26 )

52. That said, on the basis of the information available, it appears to me that the Hungarian legislation on which the second administrative decision is based does not pass the test outlined above.

53. The legal situation is somewhat unclear due to a changing regulatory framework. In such a situation a company cannot reasonably be expected immediately to prepare a reasoned and fully informed tender and to adjust its strategy. Moreover, even if Unibet had submitted a tender, it would have been difficult to foresee the decision to be taken by the competent authority, given the broad margin of appreciation the latter had at its disposal. As transpires from the legal framework set out above, there was no obligation on the competent minister to issue a licence once the relevant conditions for ‘trustworthy operator’ had been fulfilled. There is, in other words, a serious issue of transparency in a number of respects, which is why I take the view that the system in place at the time of the second administrative decision is not in line with Article 56 TFEU.

54. I therefore propose that the Court should reply to the first question as follows: Article 56 TFEU precludes national legislation such as that in the main proceedings, that provides that an operator of online games of chance, legally established in another Member State, has the theoretical possibility of obtaining a licence when that operator is, in fact, impeded from obtaining a licence due to the system being either discriminatory or lacking the requirements of proportionality or transparency.

Third question

55. By its third question, the referring court would like to know whether, where national legislation such as that at issue is contrary to Article 56 TFEU, a fine imposed on an operator for not respecting such legislation is also contrary to Article 56 TFEU.

56. The Court has consistently held that 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. ( 27 ) This applies, contrary to the view of the Hungarian Government, both to criminal and, as in the case at issue, administrative penalties.

57. Ergo, in the case at issue, the penalties imposed on Unibet are equally contrary to Article 56 TFEU.

58. I therefore propose that the Court should reply to the third question to the effect that an infringement of a system such as that of the case at issue by an economic operator cannot give rise to penalties.

Second question

59. By its second question, the referring court, in essence, seeks to ascertain the legal relevance of a lack of implementing provisions at the national level for the provisions outlined in the legal framework and examined in the arguments relating to the first question in this Opinion.

60. This question is based on the assumption that that legal framework is compatible with Article 56 TFEU. This is, however, as has just been seen, not the case.

61. In the context of the present preliminary reference it is for the (national) court to evaluate the legal framework as it existed. Had there been implementing provisions, the lack of proportionality and transparency described above might possibly have been remedied. But there were no implementing provisions. What counts is the law as it stood at the moment when the administrative decisions were taken. In this respect it must also be stressed that whether or not there was a pending procedure within the context of Directive 98/34/EC ( 28 ) is of no relevance in this regard, given that no implementing provisions were in force.

62. As the Commission correctly points out, the lack of implementing provisions cannot have any effect on the rights which stem from Article 56 TFEU. Otherwise, the exercise of that directly applicable provision, which confers a subjective economic right on Unibet, would be frustrated. Member States cannot, by not providing for implementing legislation, curtail the rights enshrined in Article 56 TFEU.

63. My proposed reply to the second question is, therefore, that a lack of national implementing provisions has no bearing on the findings relating to the first question.

Conclusion

64. On the basis of the foregoing considerations, I propose that the Court answer the questions referred by the Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administrative and Labour Court, Hungary) as follows: Article 56 TFEU precludes national legislation such as that at issue in the main proceedings, that provides that an operator of online games of chance, legally established in another Member State, has the theoretical possibility of obtaining a licence when that operator is, in fact, impeded from obtaining a licence due to the system being either discriminatory or lacking the requirements of proportionality or transparency. An infringement of such a system by an economic operator cannot give rise to penalties. A lack of national implementing provisions has no bearing on these findings.

( 1 ) Original language: English.

( 2 ) See Article 1(5)(d) of Directive of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1).

( 3 ) See Article 2(2)(h) of Directive of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36).

( 4 ) See judgment of 6 November 2003, Gambelli and Others (C‑243/01, EU:C:2003:597, paragraph 54).

( 5 ) See, by way of example, judgments of 20 February 2001, Analir and Others (C‑205/99, EU:C:2001:107, paragraph 21); of 15 January 2002, Commission v Italy (C‑439/99, EU:C:2002:14, paragraph 22); and of 8 September 2009, Liga Portuguesa de Futebol Profissional and Baw International (C‑42/07, EU:C:2009:519, paragraph 51).

( 6 ) This constitutes consistent case-law since the judgment of 25 July 1991, Säger (C‑76/90, EU:C:1991:331, paragraph 12). See, moreover, judgments of 18 July 2013, Citroën Belux (C‑265/12, EU:C:2013:498, paragraph 35), and of 8 September 2009, Liga Portuguesa de Futebol Profissional and Baw International (C‑42/07, EU:C:2009:519, paragraph 51).

( 7 ) See judgments of 31 January 1984, Luisi and Carbone (286/82 and 26/83, EU:C:1984:35, paragraph 16), and of 8 September 2009, Liga Portuguesa de Futebol Profissional and Baw International (C‑42/07, EU:C:2009:519, paragraph 51).

( 8 ) See judgments of 6 November 2003, Gambelli and Others (C‑243/01, EU:C:2003:597, paragraph 54), and of 8 September 2009, Liga Portuguesa de Futebol Profissional and Baw International (C‑42/07, EU:C:2009:519, paragraph 52).

( 9 ) See judgment of 8 September 2009, Liga Portuguesa de Futebol Profissional and Baw International (C‑42/07, EU:C:2009:519, paragraph 53).

( 10 ) See judgments of 6 March 2007, Placanica and Others (C‑338/04, C‑359/04 and C‑360/04, EU:C:2007:133, paragraph 42), and of 30 April 2014, Pfleger and Others (C‑390/12, EU:C:2014:281, paragraph 39).

( 11 ) See, for more detail, my Opinion in Ince (C‑336/14, EU:C:2015:724, point 32).

( 12 ) See, by way of example, judgment of 16 February 2017, Agro Foreign Trade & Agency (C‑507/15, EU:C:2017:129, paragraph 23 and the case-law cited).

( 13 ) See judgment of 6 October 2009, Commission v Spain (C‑153/08, EU:C:2009:618, paragraphs 36 and 37 and the case-law cited).

( 14 ) See, to that effect, judgment of 8 September 2009, Liga Portuguesa de Futebol Profissional and Baw International (C‑42/07, EU:C:2009:519, paragraph 56).

( 15 ) See judgments of 30 November 1995, Gebhard (C‑55/94, EU:C:1995:411, paragraph 37); of 6 November 2003, Gambelli and Others (C‑243/01, EU:C:2003:597, paragraph 65); of 6 March 2007, Placanica and Others (C‑338/04, C‑359/04 and C‑360/04, EU:C:2007:133, paragraph 49); of 8 September 2009, Liga Portuguesa de Futebol Profissional and Baw International (C‑42/07, EU:C:2009:519, paragraph 60); and of 6 October 2009, Commission v Spain (C‑153/08, EU:C:2009:618, paragraph 36). See also judgment of 19 July 2012, Garkalns (C‑470/11, EU:C:2012:505, paragraph 35).

( 16 ) See judgment of 15 September 2011, Dickinger and Ömer (C‑347/09, EU:C:2011:582, paragraph 55).

( 17 ) See Barnard, C., The substantive law of the EU. The four freedoms, Oxford University Press, 5th ed., 2016, p. 415.

( 18 ) Ibid.

( 19 ) In fact, the Hungarian Government, in its observations, lays the emphasis on the question whether the legislation is proportionate or not.

( 20 ) See judgment of 8 September 2009, Liga Portuguesa de Futebol Profissional and Baw International (C‑42/07, EU:C:2009:519, paragraphs 59 to 61 and the case-law cited).

( 21 ) See my Opinion in Ince (C‑336/14, EU:C:2015:724, point 32).

( 22 ) See my Opinion in Ince (C‑336/14, EU:C:2015:724, point 68).

( 23 ) See judgments of 4 February 2016, Ince (C‑336/14, EU:C:2016:72, paragraph 86), and of 3 June 2010, Sporting Exchange (C‑203/08, EU:C:2010:307, paragraph 39 and the case-law cited).

( 24 ) See judgment of 4 February 2016, Ince (C‑336/14, EU:C:2016:72, paragraph 87).

( 25 ) See judgments of 4 February 2016, Ince (C‑336/14, EU:C:2016:72, paragraph 87), and of 16 February 2012, Costa and Cifone (C‑72/10 and C‑77/10, EU:C:2012:80, paragraph 73 and the case-law cited).

( 26 ) See to that effect judgment of 4 February 2016, Ince (C‑336/14, EU:C:2016:72, paragraph 88). See also judgment of 30 April 2014, Pfleger and Others (C‑390/12, EU:C:2014:281, paragraph 48).

( 27 ) See judgments of 6 March 2007, Placanica and Others (C‑338/04, C‑359/04 and C‑360/04, EU:C:2007:133, paragraphs 63 and 69); of 15 September 2011, Dickinger and Ömer (C‑347/09, EU:C:2011:582, paragraph 43); and of 30 April 2014, Pfleger and Others (C‑390/12, EU:C:2014:281, paragraph 63).

( 28 ) 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 and of rules on Information Society services (OJ 1998 L 204, p. 37), as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998 (OJ 1998 L 217, p. 18).