CELEX: 62002CJ0036
Language: en
Date: 2004-10-14
Title: Judgment of the Court (First Chamber) of 14 October 2004.#Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn.#Reference for a preliminary ruling: Bundesverwaltungsgericht - Germany.#Freedom to provide services - Free movement of goods - Restrictions - Public policy - Human dignity - Protection of fundamental values laid down in the national constitution - "Playing at killing'.#Case C-36/02.

Case C-36/02
      Omega Spielhallen- und Automatenaufstellungs-GmbH
      v
      Oberbürgermeisterin der Bundesstadt Bonn
      (Reference for a preliminary ruling from the Bundesverwaltungsgericht)
      (Freedom to provide services – Free movement of goods – Restrictions – Public policy – Human dignity – Protection of fundamental values laid down by the national constitution – ‘Playing at killing’)
      Summary of the Judgment
      1.        Freedom to provide services – Restrictions – Justification on grounds of public policy – Need for and proportionality of the
            measures – Existence of different systems of protection in other Member States – Not relevant
      (Arts 46 EC and 49 EC)
      2.        Freedom to provide services – Restrictions – National legislation prohibiting the commercial exploitation of games simulating
            acts of homicide – Justification – Protection of public policy – Respect for human dignity as a general principle of law
      (Arts 46 EC and 49 EC)
      1.        Whilst  measures which restrict the freedom to provide services may be justified on public policy grounds only if they are
         necessary for the protection of the interests which they are intended to guarantee and only in so far as those objectives
         cannot be attained by less restrictive measures, it is not indispensable in that respect for the restrictive measure issued
         by the authorities of a Member State to correspond to a conception shared by all Member States as regards the precise way
         in which the fundamental right or legitimate interest in question is to be protected.  Thus the need for, and proportionality
         of, the provisions adopted are not excluded merely because one Member State has chosen a system of protection different from
         that adopted by another State.
      
      (see paras 36-38)
      2.        Community law does not preclude an economic activity consisting of the commercial exploitation of games simulating acts of
         homicide from being made subject to a national prohibition measure adopted on grounds of protecting public policy by reason
         of the fact that that activity is an affront to human dignity.
      
      That measure cannot be regarded as one imposing an unjustified restriction on the freedom to provide services.  In the first
         place, the protection of fundamental rights, it being stated that the Community legal order undeniably strives to ensure respect
         for human dignity as a general principle of law, constitutes a legitimate interest capable in principle of justifying a restriction
         on the obligations imposed by Community law, even by virtue of a fundamental freedom guaranteed by the Treaty such as the
         freedom to provide services.  Secondly, the measure in question corresponds to the level of protection of human dignity which
         the national constitution intended to ensure in the territory of the Member State concerned and does not go beyond what is
         necessary to achieve the objective pursued.
      
      (see paras 34-35, 39-41, operative part)

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT (First Chamber)14 October 2004(1)
         
         
            
         
               (Freedom to provide services  –  Free movement of goods  –  Restrictions  –  Public policy  –  Human dignity  –  Protection of fundamental values laid down in the national constitution  –  ‘Playing at killing’)
               
             In Case C-36/02,REFERENCE for a preliminary ruling under Article 234 EC,from the Bundesverwaltungsgericht (Germany), made by decision of 24 October 2001, received at the Court on 12 February 2002, in proceedings between:
            
            
            Omega Spielhallen- und Automatenaufstellungs-GmbH
            
            v
            
            Oberbürgermeisterin der Bundesstadt Bonn,
            
            
            
            THE COURT (First Chamber),,
            
             composed of P. Jann, President of the Chamber, A. Rosas (Rapporteur),  R. Silva de Lapuerta, K.  Lenaerts and S. von Bahr,
            Judges, and
            
             Advocate General:  C. Stix-Hackl,Registrar:  M.-F. Contet, Principal Administrator,
             having regard to the written procedure and further to the hearing on 4 February 2004,after considering the observations submitted on behalf of:
            
            –
             Omega Spielhallen- und Automatenaufstellungs-GmbH, by P. Tuxhorn, Rechtsanwalt,
            
            –
             Oberbürgermeisterin der Bundesstadt Bonn, by F. Montag, Rechtsanwalt,
            
            –
             the German Government, by  W.-D. Plessing, acting as Agent,
            
            –
             the Commission of the European Communities, by M. Patakia and C. Schmidt, acting as Agents,
            
            
            
            after hearing the Opinion of the Advocate General at the sitting on 18 March 2004,
         gives the following
         
         
         Judgment
         1
            
          This reference for a preliminary ruling concerns the interpretation of Articles 49 to 55 EC on the freedom to provide services
         and Articles 28 to 30 EC on the free movement of goods.
         
         
         
         2
            
          The question referred to the Court of Justice by the Bundesverwaltungsgericht (Federal Administrative Court, Germany) was
         raised in an appeal on a point of law before that court by Omega Spielhallen- und Automatenaufstellungs-GmbH (‘Omega’), in
         which that company challenged the compatibility with Community law of a prohibition order issued against it by the Oberbürgermeisterin
         der Bundesstadt Bonn (‘the Bonn police authority’) on 14 September 1994.
         
         
            
               Facts, main proceedings and question referred
            
         
         3
            
          Omega, a German company, had, since 1 August 1994, been operating an installation known as a ‘laserdrome’, normally used for
         the practice of ‘laser sport’ in Bonn (Germany). The installation continued to be used after 14 September 1994, Omega having
         obtained authorisation to continue its use on a provisional basis by an order of the Verwaltungsgericht Köln (Administrative
         Court, Cologne) of 18 November 1994. The equipment used by Omega in its establishment, which included sub-machine-gun-type
         laser targeting devices and sensory tags fixed either in the firing corridors or to jackets worn by players, was initially
         developed from a children’s toy freely available on the market. That equipment having proved technically inadequate, Omega
         turned, from a date not specified but later than 2 December 1994, to equipment supplied by the British company Pulsar International
         Ltd (which subsequently became Pulsar Advanced Games Systems Ltd, hereinafter referred to as ‘Pulsar’). However, a franchising
         contract with Pulsar was not concluded until 29 May 1997. 
         
         
         
         4
            
          Even before the public opening of the ‘laserdrome’, a part of the population manifested its opposition to the project. At
         the beginning of 1994, the Bonn police authority ordered Omega to supply it with a precise description of the working of the
         game intended in the ‘laserdrome’ and, by letter of 22 February 1994, warned it of its intention to issue a prohibition order
         in the event of it being possible to ‘play at killing’ people there. Omega replied, on 18 March 1994, that the game merely
         involved hitting fixed sensory tags installed in the firing corridors. 
         
         
         
         5
            
          Having noticed that the object of the game played in the ‘laserdrome’ also included hitting sensory tags placed on the jackets
         worn by players, the Bonn police authority issued an order against Omega on 14 September 1994, forbidding it from ‘facilitating
         or allowing in its […] establishment games with the object of firing on human targets using a laser beam or other technical
         devices (such as infrared, for example), thereby, by recording shots hitting their targets, “playing at killing” people’,
         on pain of a DEM 10 000 fine for each game played in breach of the order. 
         
         
         
         6
            
          That order was issued under powers conferred by Paragraph 14(1) of the Ordnungsbehördengesetz Nordrhein-Westfalen (Law governing
         the North Rhine-Westphalia Police authorities; ‘the OBG NW’), which provides: 
         ‘The police authorities may take measures necessary to avert a risk to public order or safety in an individual case’. 
         
         
         
         7
            
          According to the prohibition order of 14 September 1994, the games which took place in Omega’s establishment constituted a
         danger to public order, since the acts of simulated homicide and the trivialisation of violence thereby engendered were contary
         to fundamental values prevailing in public opinion.
         
         
         
         8
            
          Omega’s objection against that order was rejected by the Bezirksregierung Köln (Cologne District Authority) on 6 November
         1995. By judgement of 3 September 1998, the Verwaltungsgericht Köln (Cologne Administrative Court) dismissed the ensuing court
         action. Omega’s appeal was also dismissed, on 27 September 2000, by the Oberverwaltungsgericht für das Land Nordrhein-Westfalen
         (Higher Administrative Court for the Land of North Rhine-Westphalia) (Germany).
         
         
         
         9
            
          Omega then appealed on a point of law to the Bundesverwaltungsgericht (Federal Administrative Court). In support of its appeal,
         it argued, amongst numerous other pleas, that the contested order infringed Community law, particularly the freedom to provide
         services under Article 49 EC, since its ‘laserdrome’ had to use equipment and technology supplied by the British company Pulsar.
         
         
         
         
         10
            
          The Bundesverwaltungsgericht takes the view that, under national law, Omega’s appeal must be dismissed. It is, however, uncertain
         whether that result is compatible with Community law, particularly Articles 49 to 55 EC on the freedom to provide services
         and Articles 28 to 30 EC on the free movement of goods. 
         
         
         
         11
            
          According to the Bundesverwaltungsgericht, the Oberverwaltungsgericht was right to hold that the commercial exploitation of
         a ‘killing game’ in Omega’s ‘laserdrome’ constituted an affront to human dignity, a concept established in the first sentence
         of Paragraph 1(1) of the German Basic (Constitutional) Law. 
         
         
         
         12
            
          The referring court states that human dignity is a constitutional principle which may be infringed either by the degrading
         treatment of an adversary, which is not the case here, or by the awakening or strengthening in the player of an attitude denying
         the fundamental right of each person to be acknowledged and respected, such as the representation, as in this case, of fictitious
         acts of violence for the purposes of a game. It states that a cardinal constitutional principle such as human dignity cannot
         be waived in the context of an entertainment, and that, in national law, the fundamental rights invoked by Omega cannot alter
         that assessment. 
         
         
         
         13
            
          Concerning the application of Community law, the referring court considers that the contested order infringes the freedom
         to provide services under Article 49 EC. Omega concluded a franchising agreement with a British company, which is being prevented
         from providing services to its German customer, whereas it supplies comparable services in the Member State where it is established.
         There might also be an infringement of the free movement of goods under Article 28 EC, in so far as Omega wishes to acquire
         in the United Kingdom goods to equip its ‘laserdrome’, particularly laser targeting devices. 
         
         
         
         14
            
          The national court considers that the case in the main proceedings gives an opportunity to spell out in greater detail the
         conditions which Community law places on the restriction of a certain category of supplies of services or the importation
         of certain goods. It point out that, under the case-law of the Court of Justice, obstacles to freedom to provide services
         arising from national measures which are applicable without distinction are permissible only if those measures are justified
         by overriding reasons relating to the public interest, are such as to guarantee the achievement of the intended aim and do
         not go beyond what is necessary in order to achieve it. It is immaterial, for the purposes of assessing the need for and the
         proportionality of those measures, that another Member State may have taken different protection measures (Case C-124/97 Läärä and Others [1999] ECR I-6067, paragraphs 31, 35 and 36; Case C-67/98 Zenatti [1999] ECR I-7289, paragraphs 29, 33 and 34). 
         
         
         
         15
            
          The national court queries, however, whether, in the light of the judgment in Case C-275/92 Schindler [1994] ECR I-1039, a common legal conception in all Member States is a precondition for one of those States being enabled
         to restrict at its discretion a certain category of provisions of goods or services protected by the EC Treaty. Should Schindler have to be interpreted in that way, it could be difficult to confirm the contested order if it were not possible to deduce
         a common legal conception as regards the assessment in Member States of games for entertainment with simulated killing actions.
         
         
         
         
         16
            
          It states that the judgments in Läärä and Zenatti, delivered after Schindler, could give the impression that the Court of Justice no longer adheres strictly to the need for a common conception of law
         in order to restrict the freedom to provide services. If that were the case, it argues, Community law would no longer prevent
         the order in question from being confirmed. By reason of the fundamental importance of the principle of human dignity, in
         Community law as well as German law, there would be no need to enquire further as to the proportionality of the national measure
         restricting the freedom to provide services. 
         
         
         
         17
            
          In those circumstances, the Bundesverwaltungsgericht decided to stay the proceedings and refer the following question to the
         Court of Justice for a preliminary ruling:
         ‘Is it compatible with the provisions on freedom to provide services and the free movement of goods contained in the Treaty
         establishing the European Community for a particular commercial activity – in this case the operation of a so-called “laserdrome”
         involving simulated killing action – to be prohibited under national law because it offends against the values enshrined in
         the constitution?’
         
         Admissibility of the question referred
         
         18
            
          The Bonn police authority questions the admissibility of the question referred and, more particularly, the applicability of
         the rules of Community law on fundamental freedoms in this dispute. In its view, the prohibition order of 14 September 1994
         has not affected any operation of a cross-border nature and cannot therefore have restricted the fundamental freedoms guaranteed
         by the Treaty. It argues that, at the date on which the order was adopted, the installation which Pulsar had offered to supply
         to Omega had not yet been delivered and no franchising agreement required Omega to adopt the variant of the game concerned
         by the order.
         
         
         
         19
            
          It should, however, be recalled that, according to settled case-law, it is solely for the national courts before which actions
         are brought, and which must bear the responsibility for the subsequent judicial decision, to determine in the light of the
         special features of each case both the need for a preliminary ruling in order to enable them to deliver judgment and the relevance
         of the questions which they submit to the Court. Consequently, where the questions referred involve the interpretation of
         Community law, the Court is, in principle, obliged to give a ruling (see, inter alia, Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 38; Case C-390/99 Canal Satélite Digital [2002] ECR I-607, paragraph 18; Case C-373/00 Adolf Truley [2003] ECR I-1931, paragraph 21; Case C-18/01 Korhonen and Others [2003] ECR I-5321, paragraph 19; Case C-476/01 Kapper [2004] ECR I-0000, paragraph 24). 
         
         
         
         20
            
          Moreover, it also follows from that case-law that the Court can refuse to rule on a question referred for a preliminary ruling
         by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation
         to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have
         before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see PreussenElektra, paragraph 39; Canal Satélite Digital, paragraph 19; Adolf Truley, paragraph 22; Kapper, paragraph 25). 
         
         
         
         21
            
          That is not the case here. Even if the documents before the Court show that, at the time the order was adopted on 14 September
         1994, Omega had not yet formally concluded supply or franchising agreements with the company established in the United Kingdom,
         it is sufficient to note that, having regard to its forward-looking nature and the content of the prohibition which it lays
         down, that order is capable of restricting the future development of contractual relations between the two parties. Therefore,
         the question put by the referring court, which concerns the interpretation of the Treaty provisions guaranteeing the freedom
         to provide services and the free movement of goods, is not obviously without relation to the actual facts of the main action
         or its purpose.
         
         
         
         22
            
          The question referred by the Bundesverwaltungsgericht must therefore be declared admissible.
         
         The question referred 
         
         23
            
          By its question, the referring court asks, first, whether the prohibition of an economic activity for reasons arising from
         the protection of fundamental values laid down by the national constitution, such as, in this case, human dignity, is compatible
         with Community law, and, second, whether the ability which Member States have, for such reasons, to restrict fundamental freedoms
         guaranteed by the Treaty, namely the freedom to provide services and the free movement of goods, is subject, as the judgment
         in Schindler  might suggest, to the condition that that restriction be based on a legal conception that is common to all Member States.
         
         
         
         
         24
            
          As a preliminary issue, it needs to be determined to what extent the restriction which the referring court has found to exist
         is capable of affecting the freedom to provide services and the free movement of goods, which are governed by different Treaty
         provisions.
         
         
         
         25
            
          In that respect, this Court finds that the contested order, by prohibiting Omega from operating its ‘laserdrome’ in accordance
         with the form of the game developed by Pulsar and lawfully marketed by it in the United Kingdom, particularly under the franchising
         system, affects the freedom to provide services which Article 49 EC guarantees both to providers and to the persons receiving
         those services established in another Member State. Moreover, in so far as use of the form of the game developed by Pulsar
         involves the use of specific equipment, which is also lawfully marketed in the United Kingdom, the prohibition imposed on
         Omega is likely to deter it from acquiring the equipment in question, thereby infringing the free movement of goods ensured
         by Article 28 EC. 
         
         
         
         26
            
          However, where a national measure affects both the freedom to provide services and the free movement of goods, the Court will,
         in principle, examine it in relation to just one of those two fundamental freedoms if it is clear that, in the circumstances
         of the case, one of those freedoms is entirely secondary in relation to the other and may be attached to it (see, to that
         effect, Schindler, paragraph 22; Canal Satélite Digital, paragraph 31; Case C-71/02 Karner [2004] ECR I-0000, paragraph 46).
         
         
         
         27
            
          In the circumstances of this case, the aspect of the freedom to provide services prevails over that of the free movement of
         goods. The Bonn police authority and the Commission of the European Communities have rightly pointed out that the contested
         order restricts the importation of goods only as regards equipment specifically designed for the prohibited variant of the
         laser game and that that is an unavoidable consequence of the restriction imposed with regard to supplies of services by Pulsar.
         Therefore, as the Advocate General has concluded in paragraph 32 of her Opinion, there is no need to make an independent examination
         of the compatibility of that order with the Treaty provisions governing the free movement of goods.
         
         
         
         28
            
          Concerning justification for the restriction of the freedom to provide services imposed by the order of 14 September 1994,
         Article 46 EC, which applies here by virtue of Article 55 EC, allows restrictions justified for reasons of public policy,
         public security or public health. In this case, the documents before the Court show that the grounds relied on by the Bonn
         police authority in adopting the prohibition order expressly mention the fact that the activity concerned constitutes a danger
         to public policy. Moreover, reference to a danger to public policy also appears in Paragraph 14(1) of the OBG NW, empowering
         police authorities to take necessary measures to avert that danger.
         
         
         
         29
            
          In these proceedings, it is undisputed that the contested order was adopted independently of any consideration linked to the
         nationality of the providers or recipients of the services placed under a restriction. In any event, since measures for safeguarding
         public policy fall within a derogation from the freedom to provide services set out in Article 46 EC, it is not necessary
         to verify whether those measures are applied without distinction both to national providers of services and those established
         in other Member States.
         
         
         
         30
            
          However, the possibility of a Member State relying on a derogation laid down by the Treaty does not prevent judicial review
         of measures applying that derogation (Case 41/74 Van Duyn [1974] ECR 1337, paragraph 7). In addition, the concept of ‘public policy’ in the Community context, particularly as justification
         for a derogation from the fundamental principle of the freedom to provide services, must be interpreted strictly, so that
         its scope cannot be determined unilaterally by each Member State without any control by the Community institutions (see, by
         analogy with the free movement of workers, Van Duyn, paragraph 18; Case 30/77 Bouchereau [1977] ECR 1999, paragraph 33). Thus, public policy may be relied on only if there is a genuine and sufficiently serious
         threat to a fundamental interest of society (Case C-54/99 Église de Scientologie [2000] ECR I-1335, paragraph 17). 
         
         
         
         31
            
          The fact remains, however, that the specific circumstances which may justify recourse to the concept of public policy may
         vary from one country to another and from one era to another. The competent national authorities must therefore be allowed
         a margin of discretion within the limits imposed by the Treaty (Van Duyn, paragraph 18, and Bouchereau, paragraph 34).
         
         
         
         32
            
          In this case, the competent authorities took the view that the activity concerned by the prohibition order was a threat to
         public policy by reason of the fact that, in accordance with the conception prevailing in public opinion, the commercial exploitation
         of games involving the simulated killing of human beings infringed a fundamental value enshrined in the national constitution,
         namely human dignity. According to the Bundesverwaltungsgericht, the national courts which heard the case shared and confirmed
         the conception of the requirements for protecting human dignity on which the contested order is based, that conception therefore
         having to be regarded as in accordance with the stipulations of the German Basic Law.
         
         
         
         33
            
          It should be recalled in that context that, according to settled case-law, fundamental rights form an integral part of the
         general principles of law the observance of which the Court ensures, and that, for that purpose, the Court draws inspiration
         from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties
         for the protection of human rights on which the Member States have collaborated or to which they are signatories. The European
         Convention on Human Rights and Fundamental Freedoms has special significance in that respect (see, inter alia, Case C-260/89
         ERT [1991] ECR I-2925, paragraph 41; Case C-274/99 P Connolly v Commission [2001] ECR I-1611, paragraph 37; Case C-94/00 Roquette Frères [2002] ECR I-9011, paragraph 25; Case C-112/00 Schmidberger [2003] ECR I-5659, paragraph 71). 
         
         
         
         34
            
          As the Advocate General argues in paragraphs 82 to 91 of her Opinion, the Community legal order undeniably strives to ensure
         respect for human dignity as a general principle of law. There can therefore be no doubt that the objective of protecting
         human dignity is compatible with Community law, it being immaterial in that respect that, in Germany, the principle of respect
         for human dignity has a particular status as an independent fundamental right. 
         
         
         
         35
            
          Since both the Community and its Member States are required to respect fundamental rights, the protection of those rights
         is a legitimate interest which, in principle, justifies a restriction of the obligations imposed by Community law, even under
         a fundamental freedom guaranteed by the Treaty such as the freedom to provide services (see, in relation to the free movement
         of goods, Schmidberger, paragraph 74). 
         
         
         
         36
            
          However, measures which restrict the freedom to provide services may be justified on public policy grounds only if they are
         necessary for the protection of the interests which they are intended to guarantee and only in so far as those objectives
         cannot be attained by less restrictive measures (see, in relation to the free movement of capital, Église de Scientologie, paragraph 18). 
         
         
         
         37
            
          It is not indispensable in that respect for the restrictive measure issued by the authorities of a Member State to correspond
         to a conception shared by all Member States as regards the precise way in which the fundamental right or legitimate interest
         in question is to be protected. Although, in paragraph 60 of Schindler, the Court referred to moral, religious or cultural considerations which lead all Member States to make the organisation
         of lotteries and other games with money subject to restrictions, it was not its intention, by mentioning that common conception,
         to formulate a general criterion for assessing the proportionality of any national measure which restricts the exercise of
         an economic activity.
         
         
         
         38
            
          On the contrary, as is apparent from well-established case-law subsequent to Schindler, the need for, and proportionality of, the provisions adopted are not excluded merely because one Member State has chosen
         a system of protection different from that adopted by another State (see, to that effect, Läärä, paragraph 36; Zenatti, paragraph 34; Case C-6/01 Anomar and Others [2003] ECR I-0000, paragraph 80). 
         
         
         
         39
            
          In this case, it should be noted, first, that, according to the referring court, the prohibition on the commercial exploitation
         of games involving the simulation of acts of violence against persons, in particular the representation of acts of homicide,
         corresponds to the level of protection of human dignity which the national constitution seeks to guarantee in the territory
         of the Federal Republic of Germany. It should also be noted that, by prohibiting only the variant of the laser game the object
         of which is to fire on human targets and thus ‘play at killing’ people, the contested order did not go beyond what is necessary
         in order to attain the objective pursued by the competent national authorities. 
         
         
         
         40
            
          In those circumstances, the order of 14 September 1994 cannot be regarded as a measure unjustifiably undermining the freedom
         to provide services. 
         
         
         
         41
            
          In the light of the above considerations, the answer to the question must be that Community law does not preclude an economic
         activity consisting of the commercial exploitation of games simulating acts of homicide from being made subject to a national
         prohibition measure adopted on grounds of protecting public policy by reason of the fact that that activity is an affront
         to human dignity.
         
         
         Costs
         42
            
          Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
         the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
         of those parties, are not recoverable.
         
         
         
         
         
         
            
            
         
         
          On those grounds, the Court of Justice (First Chamber) hereby rules:
         
               Community law does not preclude an economic activity consisting of the commercial exploitation of games simulating acts of
                     homicide from being made subject to a national prohibition measure adopted on grounds of protecting public policy by reason
                     of the fact that that activity is an affront to human dignity.
                  
                  
               
             Signatures.
      
      
          1 –
            
            Language of the case: German.