CELEX: C2001/061/15
Language: en
Date: 2001-02-24 00:00:00
Title: Case C-6/01: Reference for a preliminary ruling by the 15.a Vara Civel da Comarca de Lisboa, 2a Secção, by order of that court of 25 May 2000 in the case of ANOMAR — Associação Nacional de Operadores de Máquinas Recreativas and Others against Portuguese State

24.2.2001             EN                      Official Journal of the European Communities                                          C 61/9
Reference for a preliminary ruling by the 15.a Vara Civel                7.   On the basis that the restrictive rules described at 6 above
da Comarca de Lisboa, 2a Secção, by order of that court                      do constitute a barrier to freedom to provide services, in
of 25 May 2000 in the case of ANOMAR — Associação                            the sense contemplated in Article 59 of the EC Treaty,
Nacional de Operadores de Máquinas Recreativas and                           are they, given that they are applicable without distinction
               Others against Portuguese State                                to Portuguese nationals and undertakings and to nationals
                                                                              and undertakings of other Member States and are,
                                                                              moreover, based on overriding public-interest consider-
                         (Case C-6/01)                                        ations (consumer protection, crime prevention, protec-
                                                                              tion of public morality, restriction of demand for gam-
                                                                              bling and the financing of public-interest activities), in
                        (2001/C 61/15)                                        those circumstances compatible with Community law?
                                                                         8.   Is the activity of operation of games of chance subject to
Reference has been made to the Court of Justice of the
                                                                              the principles of freedom of access to and pursuit of any
European Communities by order of the 15.a Vara Cı́vel da
                                                                              economic activity whatever and, therefore, does the
Comarca de Lisboa, 2a Secção (Second Chamber of the 15th
                                                                              possible existence of legislation in other Member States
District of the Lisbon Civil Courts) of 25 May 2000, which
                                                                              which lays down less restrictive conditions for the
was received at the Court Registry on 8 January 2001, for a
                                                                              operation of gaming machines sufficient to vitiate, of
preliminary ruling in the case of ANOMAR Associação
                                                                              itself, the validity of the Portuguese rules described at 6
Nacional de Operadores de Máquinas Recreativas and Others
                                                                              above?
against Portuguese State on the following questions:
                                                                         9.   Do the restrictions laid down in the Portuguese legislation
1.   Do games of chance constitute an ‘economic activity’                     on the activity of operation of games of chance comply
     within the meaning of Article 2 of the EC Treaty?                        with the principle of proportionality?
                                                                         10. Do the Portuguese rules making authorisation subject to
2.   Do games of chance constitute an activity relating to                    legal (conclusion of an administrative contract with the
     ‘goods’ which is covered, as such, by Article 30 of the EC               State following a tendering procedure: Article 9 of the
     Treaty?                                                                  abovementioned Decree-Law No 422/89) and logistical
                                                                              (operation and engagement in games of chance restricted
                                                                              to gaming areas: Article 3 of that instrument) conditions
3.   Are activities relating to the manufacture, importation
                                                                              constitute a requirement which is appropriate and necess-
     and distribution of gaming machines separate from the
                                                                              ary to the objectives that are being pursued?
     operation of such machines and, therefore, is the principle
     of the free movement of goods laid down by Articles 30
     and 34 of the EC Treaty applicable to such activities?              11. Does the use by the Portuguese legislation (Articles 1,
                                                                              4(1)(g) and 169 of the abovementioned Decree-Law No
                                                                              422/89 and Article 16(1)(a) of Decree-Law No 316/95 of
4.   Are the operation of and engagement in games of chance                   28 November 1995) of the word ‘fundamentally’, in
     excluded from the scope of Article 37 of the EC Treaty,                  conjunction with the word ‘exclusively’, in order to define
     in view of the fact that that provision does not cover                   games of chance and to draw a legal distinction between
     monopolies in the provision of services?                                 ‘gaming machines’ and ‘amusement machines’, call in
                                                                              question the precision of the concept according to the
                                                                              usual legal interpretation?
5.   Does the operation of gaming machines constitute a
     ‘provision of services’ and, as such, is it covered by Article      12. Do the imprecise legal concepts to which the Portuguese
     59 et seq. of the EC Treaty?                                             legislation resorts in defining ‘games of chance’ (Articles
                                                                              1 and 162 of Decree-Law No 422/89, cited above) and
                                                                              ‘amusement machines’ (Article 16 of Decree-Law
6.   Does a body of legal rules (such as is established in Articles
                                                                              No 316/95, cited above) call for interpretation, for the
     3(1) and 4(1) of Decree-Law No 422 of 2 December 1989)                   purpose of classifying the various types of amusement
     under which the operation of and engagement in games
                                                                              machines, which also falls within the margin of discretion
     of chance (defined by Article 1 of that instrument as ‘those             which the national authorities enjoy?
     whose result is uncertain since it depends exclusively or
     fundamentally on chance’) — which include (under
     Article 4(1)(f) and (g) of Decree-Law No 422/89) games              13. Even if it were considered that the Portuguese legislation
     played on machines which pay out prizes directly in                      at issue does not lay down objective criteria to distinguish
     tokens or money and games on machines which, while                       between gaming machines and amusement machines,
     not paying out directly prizes in tokens or money, involve               does the conferring on the Inspecção-Geral de Jogos
     matters proper to games of chance or have as their result                (Inspectorate-General for Gaming and Betting) of a dis-
     the awarding of points depending exclusively on chance                   cretionary power to classify in matters of gaming infringe
     is authorised only in casinos in permanent or temporary                  any principle or rule of Community law?
     gaming areas created by decree-law, constitute a barrier
     to the freedom to provide services, in the sense contem-
     plated in Article 59 of the EC Treaty?