Judgment of the Court (Sixth Chamber) of 11 September 2003 in Case C-13/01 (Reference for a preliminary ruling from the Giudice di pace di Genova): Safalero Srl v Prefetto di Genova (Directive 1999/5/EC — Radio equipment and telecommunications terminal equipment — Effective judicial protection of rights conferred by the Community legal order — Permissibility of administrative penalties under national legislation — Application to set aside a seizure measure against a third party)
Date: 2003-11-01
Institutions: Court of Justice
Subjects: EU law, appeal to an administrative authority, interpretation of the law, public administration, right to justice, seizure of goods

C 264/6

EN

Official Journal of the European Union

1.11.2003

the Court

(Third Chamber),

the interpretation of Articles 2 EC, 28 EC, 29 EC, 31 EC and
49 EC,
of:
J.-P. Puissochet (Rapporteur), President of the Chamber, C. Gul-
mann and F. Macken, Judges; A. Tizzano, Advocate General;
L. Hewlett, Principal Administrator, for the Registrar, has given
a judgment on 11 September 2003, in which it has ruled:

composed

JUDGMENT OF THE COURT

(Sixth Chamber)

of 11 September 2003

1. Games of chance and gambling constitute economic activities

within the meaning of Article 2 EC.

in Case C-13/01 (Reference for a preliminary ruling from
the Giudice di pace di Genova): Safalero Srl v Prefetto di
Genova (1)

2.

The activity of operating gaming machines must, irrespective of
whether or not it is separable from activities relating to the
manufacture, importation and distribution of such machines,
be considered a service within the meaning of the Treaty and,
accordingly, it cannot come within the scope of Articles 28 EC
and 29 EC relating to the free movement of goods.

(Directive 1999/5/EC — Radio equipment and telecommuni-
cations terminal equipment — Effective judicial protection
of rights conferred by the Community legal order — Per-
missibility of administrative penalties under national legis-
lation — Application to set aside a seizure measure against
a third party)

3. A monopoly in the operation of games of chance or gambling

does not fall within the scope of Article 31 EC.

4. National legislation such as the Portuguese legislation which
authorises the operation and playing of games of chance or
gambling solely in casinos in permanent or temporary gaming
areas created by decree-law and which is applicable without
distinction to its own nationals and nationals of other Member
States constitutes a barrier to the freedom to provide services.
However, Articles 49 EC et seq. do not preclude such national
legislation,
in view of the concerns of social policy and the
prevention of fraud which justify it.

5.

6.

that there might exist,

The fact
in other Member States,
legislation laying down conditions for the operation and playing
of games of chance or gambling which are less restrictive than
those provided for by the Portuguese legislation has no bearing
on the compatibility of the latter with Community law.

In the context of legislation which is compatible with the EC
Treaty, the choice of methods for organising and controlling the
operation and playing of games of chance or gambling, such as
the conclusion with the State of an administrative licensing
contract or the restriction of the operation and playing of certain
games to places duly licensed for that purpose, falls within the
margin of discretion which the national authorities enjoy.

(1) OJ C 61 of 24.2.2001.

(2003/C 264/09)

(Language of the case: Italian)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-13/01: Reference to the Court under Article 234 of
the EC Treaty by the Giudice di pace di Genova (Italy) for a
preliminary ruling in the proceedings pending before that
court between Safalero Srl and Prefetto di Genova, on the
interpretation of the principles of proportionality, effectiveness
and judicial protection of rights conferred by the Community
(Sixth Chamber), composed of:
legal order,
J.-P. Puissochet, President of
the Chamber, R. Schintgen,
C. Gulmann, F. Macken and J.N. Cunha Rodrigues (Rapporte-
ur),
Judges; C. Stix-Hackl, Advocate General; L. Hewlett,
Principal Administrator, for the Registrar, has given a judgment
on 11 September 2003, in which it has ruled:

the Court

The principle of effective judicial protection of the rights which the
Community legal order confers on individuals is to be construed, in
circumstances such as those in the main proceedings, as not precluding
national legislation under which an importer cannot bring court
proceedings to challenge a measure adopted by the public authorities
under which goods sold to a retailer are seized, where there is available
to that importer a legal remedy which ensures respect for the rights
conferred on him by Community law.

(1) OJ C 79 of 10.3.2001.