Judgment of the Court of 30 May 2007 in Case E-3/06 — Ladbrokes Ltd and the Government of Norway, Ministry of Culture and Church Affairs; The Government of Norway, Ministry of Agriculture and Food (Right of establishment — Freedom to provide services — National restrictions on gambling and betting — Legitimate aims — Suitability/consistency — Necessity — Provision and marketing of gaming services from abroad)
Date: 2007-05-30
Institutions: EFTA Court
Subjects: EFTA Court, Norway, application of the law, game of chance, gaming establishment, non-profit organisation, profit

13.12.2007

EN

Official Journal of the European Union

C 301/17

JUDGMENT OF THE COURT

of 30 May 2007

in Case E-3/06

Ladbrokes Ltd and the Government of Norway, Ministry of Culture and Church Affairs; The
Government of Norway, Ministry of Agriculture and Food

(Right of establishment — Freedom to provide services — National restrictions on gambling and betting — Legitimate
aims — Suitability/consistency — Necessity — Provision and marketing of gaming services from abroad)

(2007/C 301/09)

In Case E-3/06 between Ladbrokes Ltd and the Government of Norway, represented by the Ministry of
Culture and Church Affairs and the Ministry of Agriculture and Food — Request to the Court by Oslo
tingrett (Oslo District Court), concerning the interpretation of the rules on the right of establishment
and the freedom to provide services in the EEA, the Court, composed of Carl Baudenbacher, President and
Judge-Rapporteur, Henrik Bull and Thorgeir Örlygsson, Judges, gave judgment on 30 May 2007, the opera-
tive part of which is as follows:

1.-3. In order not to be precluded by Articles 31 and 36 EEA, national legislation which establishes
(1) that certain forms of gaming may only be offered by a State-owned gaming company
which channels its profits to cultural and sports purposes, (2) that a licence to offer horserace
betting may only be granted to non-profit organisations or companies whose aim is to
support horse breeding, or (3) that licences to offer certain forms of gaming may only be
granted to non-profit organisations and associations with a humanitarian or socially beneficial
purpose, must pursue legitimate aims such as fighting gambling addiction and maintaining
public order. The legitimate aims must be pursued in a suitable and consistent manner, and the
legislation must not go beyond what is necessary in order to achieve the aims in question.

4.

5.

Under EEA law, the financing of humanitarian and socially beneficial purposes may not consti-
tute the real justification for legislation such as the legislation at issue, but only a beneficial
consequence which is incidental, in the meaning that it is accessory. Preventing private profit
as an aim in itself may, on the other hand, in principle justify such legislation. However, the
national gaming policy must then reflect the moral concerns underlying this aim.

Under Article 36 EEA, to the extent the national court concludes that the exclusive rights
systems established under the Gaming Act and the Totalisator Act constitute lawful restric-
tions, national authorities have the right to ban the provision and marketing of games of
chance from abroad, no matter whether or not these are lawful in their State of origin. The
same applies to the extent the national court concludes that the exclusion of commercial
operators under the Lottery Act constitutes a lawful restriction on the free movement of
services.

To the extent the national court comes to the conclusion that the bans implied in the three
Acts on commercial operators organising any form of game of chance are not justified, the
answer must be that a licence may still be required in view of possible differences in the level
of protection throughout the EEA. However, national measures must not be excessive in rela-
tion to the aims pursued. They have to be non-discriminatory and must take into account the
requirements already fulfilled by the provider of the services for the pursuit of activities in
the home State.