Judgment of the Court (Third Chamber) of 11 September 2003 in Case C-6/01 (Reference for a preliminary ruling from the Tribunal Cível da Comarca de Lisboa): Associação Nacional de Operadores de Máquinas Recreativas (Anomar) and Others v Estado português (Freedom to provide services — Operation of games of chance or gambling — Gaming machines)
Date: 2003-11-01
Institutions: Court of Justice
Subjects: EU law - national law, Portugal, game of chance, interpretation of the law, provision of services

1.11.2003

EN

Official Journal of the European Union

C 264/5

If the national court, in examining these measures, finds that
that requirement results in an obstacle to imports, then it
cannot be justified by reasons relating to the protection of the
health and life of humans within the meaning of Article 36 of
the EC Treaty (now, after amendment, Article 30 EC).

1. Annuls Article 2(1) of Council Regulation (EC) No 2012/
2000 of 21 September 2000 amending Annex 4 to Protocol
No 9 to the 1994 Act of Accession and Regulation (EC)
No 3298/94 with regard to the system of ecopoints for heavy
goods vehicles transiting through Austria;

2. National courts have an obligation to ensure the full effect of
Article 30 of the Treaty by disapplying on their own initiative
domestic provisions which do not comply with that article.

2. Annuls Article 1 and Article 2(4) of that regulation but
declares that their effects are to be regarded as definitive;

(1) OJ C 28 of 27.1.2001.

3. Dismisses the remainder of the action;

4. Orders each party to bear its own costs, including those of the
interlocutory proceedings and of the procedure relating to the
withdrawal of a document from the case-file;

5. Orders the Federal Republic of Germany, the Italian Republic
and the Commission of the European Communities to bear
their own costs.

JUDGMENT OF THE COURT

of 11 September 2003

(1) OJ C 45 of 10.2.2001.

in Case C-445/00: Republic of Austria v Council of the
European Union (1)

(System of ecopoints for heavy goods vehicles transiting
through Austria — Amendment by Regulation (EC)
No 2012/2000 — Illegality)

(2003/C 264/07)

(Language of the case: German)

JUDGMENT OF THE COURT

(Third Chamber)

of 11 September 2003

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

In Case C-445/00, Republic of Austria (Agent: H. Dossi) v
Council of the European Union (Agents: A. Lopes Sabino and
G. Houttuin) supported by Federal Republic of Germany
(Agents: W.-D. Plessing, assisted by J. Sedemund), by Italian
Republic (Agent: U. Leanza, assisted by M. Fiorilli) and by
Commission of the European Communities (Agents: initially
by C. Schmidt and M. Wolfcarius, and,
subsequently,
C. Schmidt and W. Wils): Application for annulment of
Council Regulation (EC) No 2012/2000 of 21 September
2000 amending Annex 4 to Protocol No 9 to the 1994 Act of
Accession and Regulation (EC) No 3298/94 with regard to the
system of ecopoints for heavy goods vehicles transiting
through Austria (OJ 2000 L 241, p. 18), the Court, composed
of: G.C. Rodríguez Iglesias, President,
J.-P. Puissochet,
M. Wathelet and R. Schintgen (Presidents of Chambers),
C. Gulmann, D.A.O. Edward, A. La Pergola, P. Jann, V. Skouris,
F. Macken, N. Colneric, S. von Bahr and J.N. Cunha Rodrigues
(Rapporteur), Judges; J. Mischo, Advocate General; M.-F. Con-
tet, Administrator, for the Registrar, has given a judgment on
11 September 2003, in which it:

in Case C-6/01 (Reference for a preliminary ruling from
the Tribunal Cível da Comarca de Lisboa): Associação
Nacional de Operadores de Máquinas Recreativas (Ano-
mar) and Others v Estado português (1)

(Freedom to provide services — Operation of games of
chance or gambling — Gaming machines)

(2003/C 264/08)

(Language of the case: Portuguese)

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

In Case C-6/01: Reference to the Court under Article 234 EC
by the Tribunal Cível da Comarca de Lisboa (Portugal) for a
preliminary ruling in the proceedings pending before that court
between Associação Nacional de Operadores de Máquinas
Recreativas (Anomar) and Others and Estado português, on

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.