Case C-6/01: Reference for a preliminary ruling by the 15.a Vara Civel da Comarca de Lisboa, 2a Secção, by order of that court of 25 May 2000 in the case of ANOMAR — Associação Nacional de Operadores de Máquinas Recreativas and Others against Portuguese State
Date: 2001-02-24
Institutions: Court of Justice
Subjects: EU law - national law, Portugal, game of chance, interpretation of the law, provision of services

24.2.2001

EN

Official Journal of the European Communities

C 61/9

Reference for a preliminary ruling by the 15.a Vara Civel
da Comarca de Lisboa, 2a Secça˜o, by order of that court
of 25 May 2000 in the case of ANOMAR — Associaça˜o
Nacional de Operadores de Ma´quinas Recreativas and
Others against Portuguese State

(Case C-6/01)

(2001/C 61/15)

Reference has been made to the Court of Justice of the
European Communities by order of the 15.a Vara Cı´vel da
Comarca de Lisboa, 2a Secça˜o (Second Chamber of the 15th
District of the Lisbon Civil Courts) of 25 May 2000, which
was received at the Court Registry on 8 January 2001, for a
preliminary ruling in the case of ANOMAR Associaça˜o
Nacional de Operadores de Ma´quinas Recreativas and Others
against Portuguese State on the following questions:

1. Do games of chance constitute an ‘economic activity’

within the meaning of Article 2 of the EC Treaty?

2. Do games of chance constitute an activity relating to
‘goods’ which is covered, as such, by Article 30 of the EC
Treaty?

3. Are activities relating to the manufacture, importation
and distribution of gaming machines separate from the
operation of such machines and, therefore, is the principle
of the free movement of goods laid down by Articles 30
and 34 of the EC Treaty applicable to such activities?

4. Are the operation of and engagement in games of chance
excluded from the scope of Article 37 of the EC Treaty,
in view of the fact that that provision does not cover
monopolies in the provision of services?

5. Does the operation of gaming machines constitute a
‘provision of services’ and, as such, is it covered by Article
59 et seq. of the EC Treaty?

6. Does a body of legal rules (such as is established in Articles
3(1) and 4(1) of Decree-Law No 422 of 2 December 1989)
under which the operation of and engagement in games
of chance (defined by Article 1 of that instrument as ‘those
whose result is uncertain since it depends exclusively or
fundamentally on chance’) — which include (under
Article 4(1)(f) and (g) of Decree-Law No 422/89) games
played on machines which pay out prizes directly in
tokens or money and games on machines which, while
not paying out directly prizes in tokens or money, involve
matters proper to games of chance or have as their result
the awarding of points depending exclusively on chance
is authorised only in casinos in permanent or temporary
gaming areas created by decree-law, constitute a barrier
to the freedom to provide services, in the sense contem-
plated in Article 59 of the EC Treaty?

7. On the basis that the restrictive rules described at 6 above
do constitute a barrier to freedom to provide services, in
the sense contemplated in Article 59 of the EC Treaty,
are they, given that they are applicable without distinction
to Portuguese nationals and undertakings and to nationals
and undertakings of other Member States and are,
moreover, based on overriding public-interest consider-
ations (consumer protection, crime prevention, protec-
tion of public morality, restriction of demand for gam-
bling and the financing of public-interest activities), in
those circumstances compatible with Community law?

8.

Is the activity of operation of games of chance subject to
the principles of freedom of access to and pursuit of any
economic activity whatever and,
therefore, does the
possible existence of legislation in other Member States
which lays down less restrictive conditions for the
operation of gaming machines sufficient to vitiate, of
itself, the validity of the Portuguese rules described at 6
above?

9. Do the restrictions laid down in the Portuguese legislation
on the activity of operation of games of chance comply
with the principle of proportionality?

10. Do the Portuguese rules making authorisation subject to
legal (conclusion of an administrative contract with the
State following a tendering procedure: Article 9 of the
abovementioned Decree-Law No 422/89) and logistical
(operation and engagement in games of chance restricted
to gaming areas: Article 3 of that instrument) conditions
constitute a requirement which is appropriate and necess-
ary to the objectives that are being pursued?

11. Does the use by the Portuguese legislation (Articles 1,
4(1)(g) and 169 of the abovementioned Decree-Law No
422/89 and Article 16(1)(a) of Decree-Law No 316/95 of
28 November 1995) of the word ‘fundamentally’,
in
conjunction with the word ‘exclusively’, in order to define
games of chance and to draw a legal distinction between
‘gaming machines’ and ‘amusement machines’, call
in
question the precision of the concept according to the
usual legal interpretation?

12. Do the imprecise legal concepts to which the Portuguese
legislation resorts in defining ‘games of chance’ (Articles
1 and 162 of Decree-Law No 422/89, cited above) and
(Article 16 of Decree-Law
‘amusement machines’
No 316/95, cited above) call for interpretation, for the
purpose of classifying the various types of amusement
machines, which also falls within the margin of discretion
which the national authorities enjoy?

13. Even if it were considered that the Portuguese legislation
at issue does not lay down objective criteria to distinguish
between gaming machines and amusement machines,
does the conferring on the Inspecça˜o-Geral de Jogos
(Inspectorate-General for Gaming and Betting) of a dis-
cretionary power to classify in matters of gaming infringe
any principle or rule of Community law?