CELEX: C2003/264/08
Language: en
Date: 2003-11-01 00:00:00
Title: 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)

1.11.2003               EN                           Official Journal of the European Union                                                 C 264/5
      If the national court, in examining these measures, finds that         1.   Annuls Article 2(1) of Council Regulation (EC) No 2012/
      that requirement results in an obstacle to imports, then it                 2000 of 21 September 2000 amending Annex 4 to Protocol
      cannot be justified by reasons relating to the protection of the            No 9 to the 1994 Act of Accession and Regulation (EC)
      health and life of humans within the meaning of Article 36 of               No 3298/94 with regard to the system of ecopoints for heavy
      the EC Treaty (now, after amendment, Article 30 EC).                        goods vehicles transiting through Austria;
2.    National courts have an obligation to ensure the full effect of        2.   Annuls Article 1 and Article 2(4) of that regulation but
      Article 30 of the Treaty by disapplying on their own initiative             declares that their effects are to be regarded as definitive;
      domestic provisions which do not comply with that article.
                                                                             3.   Dismisses the remainder of the action;
(1) OJ C 28 of 27.1.2001.
                                                                             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
                                                                             (1) OJ C 45 of 10.2.2001.
                      of 11 September 2003
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)                                                JUDGMENT OF THE COURT
                   No 2012/2000 — Illegality)
                                                                                                       (Third Chamber)
                          (2003/C 264/07)
                   (Language of the case: German)                                                   of 11 September 2003
(Provisional translation; the definitive translation will be published       in Case C-6/01 (Reference for a preliminary ruling from
                   in the European Court Reports)                            the Tribunal Cível da Comarca de Lisboa): Associação
                                                                             Nacional de Operadores de Máquinas Recreativas (Ano-
                                                                                        mar) and Others v Estado português (1)
In Case C-445/00, Republic of Austria (Agent: H. Dossi) v                    (Freedom to provide services — Operation of games of
Council of the European Union (Agents: A. Lopes Sabino and                             chance or gambling — Gaming machines)
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                                             (2003/C 264/08)
Commission of the European Communities (Agents: initially
by C. Schmidt and M. Wolfcarius, and, subsequently,
C. Schmidt and W. Wils): Application for annulment of                                          (Language of the case: Portuguese)
Council Regulation (EC) No 2012/2000 of 21 September
2000 amending Annex 4 to Protocol No 9 to the 1994 Act of
                                                                             (Provisional translation; the definitive translation will be published
Accession and Regulation (EC) No 3298/94 with regard to the                                      in the European Court Reports)
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,               In Case C-6/01: Reference to the Court under Article 234 EC
F. Macken, N. Colneric, S. von Bahr and J.N. Cunha Rodrigues                 by the Tribunal Cível da Comarca de Lisboa (Portugal) for a
(Rapporteur), Judges; J. Mischo, Advocate General; M.-F. Con-                preliminary ruling in the proceedings pending before that court
tet, Administrator, for the Registrar, has given a judgment on               between Associação Nacional de Operadores de Máquinas
11 September 2003, in which it:                                              Recreativas (Anomar) and Others and Estado português, on
 ---pagebreak--- C 264/6                   EN                           Official Journal of the European Union                                              1.11.2003
the interpretation of Articles 2 EC, 28 EC, 29 EC, 31 EC and                                    JUDGMENT OF THE COURT
49 EC, the Court (Third Chamber), composed of:
J.-P. Puissochet (Rapporteur), President of the Chamber, C. Gul-
mann and F. Macken, Judges; A. Tizzano, Advocate General;                                                (Sixth Chamber)
L. Hewlett, Principal Administrator, for the Registrar, has given
a judgment on 11 September 2003, in which it has ruled:
                                                                                                     of 11 September 2003
1.     Games of chance and gambling constitute economic activities             in Case C-13/01 (Reference for a preliminary ruling from
       within the meaning of Article 2 EC.                                     the Giudice di pace di Genova): Safalero Srl v Prefetto di
                                                                                                            Genova (1)
2.     The activity of operating gaming machines must, irrespective of         (Directive 1999/5/EC — Radio equipment and telecommuni-
       whether or not it is separable from activities relating to the          cations terminal equipment — Effective judicial protection
       manufacture, importation and distribution of such machines,             of rights conferred by the Community legal order — Per-
       be considered a service within the meaning of the Treaty and,           missibility of administrative penalties under national legis-
       accordingly, it cannot come within the scope of Articles 28 EC          lation — Application to set aside a seizure measure against
       and 29 EC relating to the free movement of goods.                                                   a third party)
3.     A monopoly in the operation of games of chance or gambling                                        (2003/C 264/09)
       does not fall within the scope of Article 31 EC.
                                                                                                   (Language of the case: Italian)
4.     National legislation such as the Portuguese legislation which
       authorises the operation and playing of games of chance or
                                                                               (Provisional translation; the definitive translation will be published
       gambling solely in casinos in permanent or temporary gaming
                                                                                                  in the European Court Reports)
       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.                                   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
5.     The fact that there might exist, in other Member States,                interpretation of the principles of proportionality, effectiveness
       legislation laying down conditions for the operation and playing        and judicial protection of rights conferred by the Community
       of games of chance or gambling which are less restrictive than          legal order, the Court (Sixth Chamber), composed of:
       those provided for by the Portuguese legislation has no bearing         J.-P. Puissochet, President of the Chamber, R. Schintgen,
       on the compatibility of the latter with Community law.                  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:
6.     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            The principle of effective judicial protection of the rights which the
       contract or the restriction of the operation and playing of certain     Community legal order confers on individuals is to be construed, in
       games to places duly licensed for that purpose, falls within the        circumstances such as those in the main proceedings, as not precluding
       margin of discretion which the national authorities enjoy.              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 61 of 24.2.2001.
                                                                               (1) OJ C 79 of 10.3.2001.