CELEX: 62008CC0153
Language: en
Date: 2009-07-16 00:00:00
Title: Opinion of Mr Advocate General Mengozzi delivered on 16 July 2009. # Commission of the European Communities v Kingdom of Spain. # Failure of a Member State to fulfil obligations - Freedom to provide services - Article 49 EC and Article 36 of the EEA Agreement - Direct taxation - Income tax - Tax exemption restricted to winnings from lotteries and games of chance organised by certain national bodies and entities. # Case C-153/08.

OPINION OF ADVOCATE GENERAL
      MENGOZZI
      delivered on 16 July 2009 1(1)
      
      Case C‑153/08
      Commission of the European Communities
      v
      Kingdom of Spain
      (Failure of a Member State to fulfil obligations – Freedom to provide services – Article 49 EC and Article 36 of the EEA Agreement – Direct taxation – Income tax – Taxation of winnings from lotteries, games of chance and betting – Exemption of income from lotteries, games of chance and betting organised by certain national bodies – Discrimination)I –  Introduction
      1.        By an action brought on 15 April 2008, the Commission of the European Communities seeks from the Court a declaration that,
         by maintaining in force fiscal legislation taxing winnings from all types of lotteries, games of chance and betting organised
         outside the Kingdom of Spain, whereas winnings obtained from certain lotteries, games of chance and betting organised within
         the Kingdom of Spain are exempted from income tax, the Kingdom of Spain has failed to fulfil its obligations under Community
         law and, in particular, under Article 49 EC and Article 36 of the Agreement on the European Economic Area signed on 2 May
         1992 (‘the EEA Agreement’). (2)
      
      II –  Legal framework
      A –    Community law
      2.        The first paragraph of Article 49 EC provides:
      
      ‘Within the framework of the provisions set out below, restrictions on freedom to provide services within the Community shall
         be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of
         the person for whom the services are intended.’
      
      3.        According to Article 36(1) of the EEA Agreement:
      
      ‘Within the framework of the provisions of this Agreement, there shall be no restrictions on freedom to provide services within
         the territory of the Contracting Parties in respect of nationals of EC Member States and EFTA States who are established in
         an EC Member State or an EFTA State other than that of the person for whom the services are intended.’
      
      B –    National legislation
      4.        Article 7 of Law No 35/2006 of 28 November 2006 on personal income tax and partially amending legislation on the taxation
         of corporations, non-residents’ income and wealth (‘the law on income tax’) (3) provides as follows: 
      
      ‘Article 7. Exempted income.
      The following income is exempted:
      ...
      (ñ) Winnings from lotteries and betting organised by the public body Loterías y Apuestas del Estado (the Spanish public-law
         body in charge of lotteries and betting, “LAE”) or by bodies or entities of the Comunidades Autónomas (Autonomous Communities),
         and winnings from draws organised by the Spanish Red Cross or by the Organización Nacional de Ciegos Españoles (the Spanish
         national association for the blind, “ONCE”).
      
      ...’
      5.        However, income from lotteries, games of chance or betting organised by other national or foreign bodies, including those
         established in Member States of the European Union or the European Economic Area, is added to the taxable amount and subject
         to progressive rates of taxation (Articles 33(1), 45 and 63(1) of the law on income tax, as amended by Article 67 of Law No
         51/2007 of 26 December 2007 on the general State budget for 2008 (4)).
      
      III –  Pre-litigation procedure
      6.        By letter of formal notice of 4 April 2006, the Commission informed the Spanish Government that it regarded the fiscal treatment
         under the Spanish legislation of winnings from lotteries, games of chance and betting organised outside the Kingdom of Spain
         as incompatible with Article 49 EC and Article 36 of the EEA Agreement, in so far as such winnings are taxed more heavily
         than winnings from certain Spanish lotteries and games, and invited that Government to submit its observations on that matter.
      
      7.        In its response of 13 June 2006, the Spanish Government claimed that the exemption at issue applies only in certain cases
         and is connected with the particular nature of certain organising entities. There is no discrimination since organisers of
         lotteries established in Spain are generally in the same situation as those which are not established in Spain. By way of
         justification for the exemption at issue, the Spanish Government listed the combating of the harmful effects of that type
         of activity and the broad discretion enjoyed by the Member States for the purpose of regulating that form of gambling.
      
      8.        On 15 December 2006, the Commission issued a reasoned opinion calling on the Kingdom of Spain to adopt the measures necessary
         to comply with that opinion within two months of the latter’s notification. 
      
      9.        By letter of 22 February 2007, the Spanish Government informed the Commission that it maintained its position. The Spanish
         legislation at issue does not discriminate on the basis of the nationality, residence or place of establishment of organisers
         of lotteries or games of chance and is justified on the grounds of protecting consumers and the social order.
      
      10.      The Commission, having noted that the Kingdom of Spain had repeated its initial comments and had not adopted measures to comply
         with the reasoned opinion within the prescribed time-limit, decided to bring the present action.
      
      IV –  Forms of order sought by the parties
      11.      The Commission claims that the Court should:
      
      –        declare that, by maintaining in force fiscal legislation taxing winnings from all types of lotteries, games of chance and
         betting organised outside the Kingdom of Spain, whereas winnings obtained from certain types of lotteries, games of chance
         and betting organised within the Kingdom of Spain are exempted from income tax, the Kingdom of Spain has failed to fulfil
         its obligations under Community law and, in particular, under Article 49 EC and Article 36 of the EEA Agreement, (5)
      
      –        order the Kingdom of Spain to pay the costs.
      12.      The Kingdom of Spain contends that the Court should:
      
      –        dismiss the action;
      –        order the Commission to pay the costs.
      V –  The failure to fulfil obligations
      A –    Summary of the arguments of the parties
      13.      The Commission claims that, in the light of the Court’s case-law on the freedom to provide services and, in particular, the
         judgment in LindmanI, (6) the Spanish provisions in question are contrary to Article 49 EC, in that they discriminate without justification against
         foreign lottery organisers, since the latter’s products, if sold to Spanish residents, give rise to a fiscal burden which
         does not apply in the case of the equivalent products of the Spanish organisers listed in Article 7(ñ) of the law on income
         tax. 
      
      14.      Though it is true that the exemption at issue does not cover all organisers of lotteries and games of chance established in
         Spain and is limited to certain specific entities, the fact remains that that exemption, since it benefits only Spanish entities,
         is discriminatory in nature. It must be noted, in that regard, that the Spanish legislation is not worded in general terms
         which enable any body complying with a series of objective criteria to benefit from the exemption. On the contrary, as the
         Spanish legislation expressly refers to certain national entities, the discrimination is manifest. Hence, the Spanish Red
         Cross benefits from the exemption, but not the French Red Cross. Consequently, it is incorrect to claim, as does the Spanish
         Government, that the exemption at issue was established ‘in favour of prizes from certain specific entities and neither nationality
         nor resident status was a decisive factor’.
      
      15.      According to the Court’s case-law, (7) the discretion enjoyed by the Member States to regulate that type of activity does not make it possible to justify the legislative
         provision at issue. Indeed, that legislation, rather than setting out a number of characteristics required for the granting
         of the favourable tax treatment, restricts the exemption to certain specifically designated entities, even though it allows
         the provision of similar services by other entities which do not benefit from that favourable tax treatment, including entities
         of the same kind in other Member States or entities pursuing the same objectives as the Spanish entities referred to in that
         provision. Moreover, the Commission disputes the assertion that public entities and non-profit-making bodies established in
         other Member States which pursue social activities are not in the same situation as the beneficiaries of the exemption. In
         addition, the Kingdom of Spain’s reasons for establishing that exemption are such as to support the Commission’s argument,
         because, if those grounds are based on the social nature of the entities and on the absence of profit motive, there is no
         valid reason for not extending the exemption in question to entities having the same characteristics, but established in the
         other Member States.
      
      16.      The Commission adds that the destination of the funds raised by the entities benefitting from the exemption at issue is not
         relevant for the purpose of precluding the possibility that that exemption is discriminatory in nature. 
      
      17.      With regard to the economic significance of the contested exemption, the Commission claims, first, that it follows from the
         Annual Report on Gambling in Spain of 2006, published by the Spanish Interior Ministry, that, according to the percentage
         share by management type, 40.8% of gambling (in terms of sums wagered) was organised by LAE and ONCE (33.4% and 7.4% respectively),
         corresponding in 2006 to a total amount wagered of EUR 11.79 billion, the winnings from which are exempt from income tax.
         
      
      18.      It argues, secondly, that the Spanish legislation exempts from income tax almost all winnings from a particular sector of
         services provided by organisers established in Spain, namely the organisation of games of chance in which the winnings are
         deferred in time and a player merely purchases a betting slip or ticket, whereas winnings from the same services provided
         by organisers established in other Member States are taxed. However, the organisers of that type of games of chance are the
         most likely to seek to provide their services on a cross-border basis, since the provision of such services, unlike in the
         case of casinos or slot machines, requires no infrastructure in other countries. Consequently, it is precisely those organisers
         who are most likely to be the victims of tax discrimination.
      
      19.      As regards the reasons which may be invoked by a Member State by way of justification, the Commission first of all argues
         that, although they must be accompanied, according to settled case-law, (8) by an analysis of the necessity and proportionality of the restrictive measure adopted by that State, the Spanish Government
         failed in this case to provide any information capable of justifying the measure in question. 
      
      20.      Moreover, in the light of the case-law in question, that measure is not justified in terms of protecting the social order
         since there is nothing to suggest that participation in lotteries organised by the public authorities of the other Member
         States of the European Union or the European Economic Area, or by bodies similar to the Red Cross or ONCE, would have more
         harmful effects on Spanish citizens than participation in lotteries the winnings from which enjoy the favourable tax treatment
         in question. Furthermore, in the case of the Kingdom of Spain, there do not seem to be any significant restrictions on the
         organisation of lotteries, apart from the requirement for administrative authorisation. In addition, it is a public body which
         is responsible for organising most of the lotteries and gambling in Spain and the advertising carried out in that context
         is considerable. The Spanish Government’s position is thus, at the very least, contrary to the objectives allegedly pursued.
      
      21.      The Commission also points out that recourse to a tax exemption measure is not the most appropriate means of attaining the
         objective pursued by the Spanish Government, which is to discourage games of chance, since that exemption is more likely to
         encourage individuals to participate in them.
      
      22.      With regard to the objectives of preventing money laundering and combating tax evasion, the Commission asserts that it is
         unable to understand how the tax exemption at issue in this case could help to attain those objectives. Similarly, it claims
         that it cannot identify any reason why tax evasion or money laundering would increase if the contested exemption were extended
         to winnings from services provided by bodies of other Member States of the same nature as those covered by that exemption
         rule. 
      
      23.      The arguments relating to the control procedures connected with the exemption and aimed at preventing money laundering are
         likewise incapable of justifying that measure, since the Spanish legislation wholly prevents entities of other Member States
         of the same nature as those covered by the exemption rule from benefitting from that favoured tax treatment. Those bodies
         are denied the benefit of the exemption, even if they are willing to fulfil the conditions prescribed by the legislation on
         preventing money laundering, combating tax evasion and protecting consumers. 
      
      24.      As regards the need to ensure the protection of consumers in accordance with the rules laid down in Spain, the Commission
         takes the view that it cannot validly be asserted that such protection is jeopardised by the fact that the lotteries in question
         are organised by entities established in other Member States. Similarly, it is not reasonable to argue that the extension
         of the exemption would encourage activities which do not adequately safeguard consumer protection. Indeed, quite apart from
         the fact that the activities in question are already regulated in each Member State, there are control mechanisms to ensure
         such protection which are compatible with Community law.
      
      25.      In any event, the Spanish legislation is discriminatory in nature and cannot therefore be regarded as compatible with the
         EC Treaty and the EEA Agreement.
      
      26.      The Kingdom of Spain denies that it has failed to fulfil its obligations, contending, primarily, that the tax exemption at
         issue does not constitute a discriminatory restriction. That exemption, the scope of which is personal in that it is limited
         to certain public bodies of the State or of the Autonomous Communities, the Spanish Red Cross and ONCE, admittedly results
         in a difference in treatment as regards those not covered by it. However, that difference in treatment is neither discriminatory
         nor contrary to the principle of equal treatment, since the entities not covered by the contested provision are not in the
         same situation as those falling within its scope. 
      
      27.      The Spanish Government points out that the scope of the exemption does not extend to all winnings from lotteries and games
         of chance organised in Spain or by entities resident in Spain. Thus, subject to the contested provision, winnings distributed
         in games of chance organised by resident entities are subject to the same taxation as winnings distributed in games of chance
         organised by non‑residents. Therefore, it cannot be concluded that the contested provision discriminates or is liable to discriminate
         against organisers of lotteries not established in Spain. 
      
      28.      The Spanish Government claims that there is no discrimination against non-resident entities of a similar nature to those listed
         in the Spanish provision at issue, since that provision does not define the scope of the exemption on the basis of certain
         specific characteristics and therefore makes no reference to the nationality, residence or place of establishment of the entities.
         Nevertheless, the Spanish Government confirms several times that the exemptions were introduced on account of certain particular
         qualities of the organisers, all of which pursue non-profit-making social or charitable activities. As a result, the differences
         in treatment as compared with other lottery organisers offering equivalent products arise from the fact that the latter (whether
         Spanish or foreign) do not possess those particular qualities. With regard to those specific characteristics, the Spanish
         Government asserts that the reasons which led the Spanish legislature to grant that exemption are social in nature and that
         the entities concerned are non-profit making.
      
      29.      With regard to the examples put forward by the Commission, and more specifically that of the organisation in Spain of a lottery
         by the French Red Cross, the Spanish Government argues in particular that such a situation is completely unrealistic, since
         that entity has never requested approval for that purpose and does not have in that State a network of sales outlets similar
         to that available to the entities covered by the provision containing the contested exemption. Therefore, ‘it is evident that
         the French Red Cross and the Spanish Red Cross are not in a comparable situation’.
      
      30.      The Spanish Government also examines whether the winners are in a comparable situation. The differences between a Spanish
         taxpayer, who benefits from the tax exemption on winnings from lotteries and games of chance organised by LAE, ONCE or the
         Spanish Red Cross, on the one hand, and a taxpayer from another Member State in which those winnings are subject to taxation,
         on the other hand, are due not to the fact that Spanish tax law provides for a subjective exemption in favour of the entities
         in question, but to the fact that the tax law of that other State has deemed that that income is subject to income tax. However,
         such a difference in treatment cannot be regarded as discriminatory within the meaning of the provisions of the Treaty or
         the EEA Agreement.
      
      31.      It submits that the judgment in Lindman, cannot be applied in this case, since, unlike the Finnish legislation at issue in that case, in principle, the Spanish legislation
         makes the winnings from games of chance subject to income tax regardless of the place where those games are organised or the
         place of residence of their organiser. Thus, the contested exemption does not cover all winnings from lotteries and games
         of chance organised or authorised in Spain, but only winnings distributed by bodies selected on the basis of their particular
         nature.
      
      32.      With regard to the distinction between the two types of games of chance (games of chance in which winnings are deferred in
         time and games of chance which have an instant result) and the Commission’s position that the Spanish legislation exempts
         from income tax almost all winnings from a specific sector of services provided by organisers established in Spain, namely
         the organisation of games of chance in which winnings are deferred in time, the Spanish Government submits that that distinction
         is irrelevant for tax purposes. The exemption is subjective in nature and includes all winnings from lotteries, betting and
         draws organised by the exempted entities, making no distinction on the basis of whether or not winnings are obtained instantly
         or deferred. Indeed, instant lotteries are also a type of games of chance organised by the entities distributing winnings
         benefitting from the tax exemption, which shows the inconsistency in the Commission’s line of argument in that respect.
      
      33.      In the alternative, the Spanish Government argues that, even if the exemption at issue in this case is a discriminatory restriction
         on freedom to provide services, that restriction may, in the light of the specific nature of the activities in question, be
         justified for reasons of social policy, on the grounds of preventing money laundering and combating tax evasion and by objectives
         of consumer protection.
      
      34.      With regard, first, to social policy, the Spanish Government takes the view that, in so far as the legislation at issue in
         this case is comparable to that which the Court had to consider in Schindler and Läärä, (9) and in Zenatti, the reasoning adopted by the Court in those judgments is applicable in the present case. The only difference between the
         legislation at issue in Schindler, and the Spanish legislation, which supports the approach of the Kingdom of Spain, is that, whereas the United Kingdom legislation
         prohibited the organisation of lotteries subject to a number of exceptions, the Spanish provision makes the winnings from
         lotteries and games of chance subject to personal income tax. It is not reasonable to argue that, although Community law makes
         it possible to prohibit, subject to certain exceptions, the pursuit of an activity of that nature, which constitutes a significant
         restriction on freedom to provide services, a Member State cannot tax the product of that same activity, while providing for
         exceptions such as those laid down by the Spanish legislation, since the tax is merely an incidental factor in relation to
         the pursuit of that activity, all the more so since the Spanish provision at issue in this case does not discriminate on grounds
         of nationality, residence or place of establishment.
      
      35.      It is precisely with a view to protecting the social order that the contested exemption was adopted, that is, first, to discourage
         gambling in general by establishing the principle of taxing that type of income and, secondly, to accord preferential treatment
         to winnings from lotteries and games of chance organised by public bodies on the basis that benefitting them is in the public
         interest. Thus, the income obtained by the entities whose games benefit from that exemption helps to finance socially useful
         infrastructure and projects.
      
      36.      The Spanish Government points out that making winnings from games of chance subject to taxation is intended to discourage
         gambling in general, whereas the exemption provided for in Article 7(ñ) of the law on income tax seeks to channel existing
         demand for gambling towards forms of gambling which are characterised by the requirement to pay out small sums unlikely to
         lead to addiction or compulsive gambling and are subject to numerous controls.
      
      37.      With regard, secondly, to preventing money laundering and combating tax evasion, the Spanish Government contends that the
         attainment of those objectives would be seriously compromised if the contested legislation had to apply to winnings from games
         of chance organised by certain public or charitable bodies not subject to Spanish legislation, since the tax authorities would
         be unable to monitor such income in the same way as they do now. The system established in Spain makes lists of winners available
         to the competent authorities, allowing them to cross-check data in order to detect suspicious transactions. In return for
         the exemption on the winnings which they distribute, the entities in question must comply with a series of specific cooperation
         obligations relating to the monitoring of such criminal and fraudulent practices.
      
      38.      Thus, according to Article 69(4) of the Spanish regulation on personal income tax, approved by Royal Decree No 439/2007 of
         30 March 2007, (10) those entities are to ‘submit, within the first thirty calendar days of the January of the immediately following year, a
         declaration which sets out the prizes exempted from personal income tax and which, in addition to identifying information,
         may include the identification, with first names, surnames and tax identification number, of the recipients as well as the
         amount or value of the prizes received by them exceeding the threshold [EUR 3 000] determined for that purpose by the Ministry
         of the Economy and Finance’.
      
      39.      The effectiveness of that control system is due to the very high degree of cooperation and involvement of the entities concerned,
         to their limited number and to their compliance with the Spanish legislation and administration. However, those conditions
         could not be satisfied if the exemptions in question were extended, as the Commission wishes, to a large number of entities
         not subject to the Spanish legislation or the direct control of the Spanish authorities. Indeed, the extension of that control
         system to non-resident entities would be a case of extra-territorial application of national law, since the transmission of
         information under those conditions is not provided for by Council Directive 77/799/EEC of 19 December 1977 concerning mutual
         assistance by the competent authorities of the Member States in the field of direct taxation. (11) Accordingly, it would be difficult to require entities located in another Member State to communicate the information and
         comply with the conditions laid down by that system on the hypothetical ground that some winners in the games of chance and
         lotteries of that other Member State could be Spanish residents. Therefore, the Commission’s proposal that the Spanish authorities
         could require foreign beneficiary entities to comply with the control system in question is totally disproportionate.
      
      40.      With regard, thirdly, to consumer protection, the Spanish Government recalls that, in Spain, the organisation of lotteries
         and games of chance is an activity subject to legislation which aims to protect the participants’ rights and interests by
         ensuring full application of the legislation in force. Prevention is closely linked to the activity of monitoring compliance
         with the applicable legislation and is intended to avoid the possibility of fraudulently changing or manipulating the conditions
         under which the operation of the various forms of games of chance run by private entities is authorised. To that end, a number
         of rules have been introduced, such as the need for administrative approval to pursue the activity, the setting of a minimum
         percentage for the amounts staked and distributed as prizes, controlled advertising and administrative monitoring of the activity
         carried out.
      
      41.      Extending the exemption at issue to entities not subject to the legislation governing the organisation of those forms of games
         of chance would have the effect of reducing the level of consumer protection. That exemption is therefore justified by the
         need to ensure that consumers are afforded the protection deemed to be appropriate by the Spanish authorities, a ground which
         has been fully recognised by the Court in its case-law.
      
      B –    Assessment
      1.      The case-law on games of chance and the relationship of the present case with Lindman
      42.      First of all, before I commence the assessment of the alleged infringement of Article 49 EC and Article 36 of the EEA Agreement,
         it would, in my view, be helpful to recall the case-law on games of chance and that concerning direct taxation.
      
      43.      With regard to the latter, it must be borne in mind that, according to the Court, (12) although direct taxation falls within their competence, Member States must nonetheless exercise that competence consistently
         with Community law and avoid any discrimination on grounds of nationality.
      
      44.      On the other hand, the provisions of the Treaty relating to freedom to provide services apply, as the Court has already specifically
         established as regards the organisation of lotteries, to an activity which consists in the participation, for a payment, in
         gambling, provided that at least one of the providers is established in a Member State other than that in which the service
         is offered. (13)
      
      45.      Consequently, there can be no doubt that the offer to Spanish residents of lottery and gambling services organised in another
         Member State falls within the scope of Article 49 EC, provided that at least one of the providers is established in a Member
         State other than the Kingdom of Spain. It is therefore necessary to examine the Spanish legislation at issue in this case
         from the point of view of freedom to provide services.
      
      46.      The Court has already, in Lindman, ruled on the compatibility of fiscal legislation relating to games of chance with the fundamental freedoms and, in particular,
         with freedom to provide services. It is therefore helpful, in my view, to note the similarities and differences between the
         context of this case and that of Lindman, in order to identify the novelty of the issues raised in the present action.
      
      47.      Lindman concerned Finnish legislation pursuant to which winnings from games of chance not licensed in Finland were regarded as taxable
         income, whereas winnings from games of chance organised in that Member State were not taxable income. Because, according to
         the legislation at issue, only games of chance organised in Finland were not taxed, the Court found that foreign lotteries
         were treated differently for tax purposes from, and were in a disadvantageous position compared to, Finnish lotteries, which
         is contrary to Article 49 EC. (14)
      
      48.      In the present case, the difference in treatment of foreign organisers is not as evident and manifest as in Lindman, since the exemption at issue is limited solely to winnings from lotteries, games of chance and betting organised by certain
         Spanish public entities and by certain non-profit-making Spanish bodies and does not cover all prizes, lotteries and games
         of chance organised in Spain or by entities established in Spain. 
      
      49.      In addition, the scope of that exemption is not directly determined on the basis of objective criteria, unlike in Lindman in which, because all foreign lotteries were treated differently for tax purposes from games of chance organised in Finland,
         application of the discriminatory legislation was based on a single and objective criterion: the origin of the service.
      
      50.      Those are the two differences which characterise this case and distinguish it from Lindman, namely an exemption the scope of which does not cover all Spanish organisers of games of chance and the prima facie absence of an objective criterion underpinning the discrimination alleged by the Commission to result from the Spanish legislation.
      
      51.      In its application, the Commission maintains that the discrimination against foreign organisers of games of chance which it
         claims results from the Spanish legislation is contrary to the freedom to provide services ensured by Article 49 EC and Article 36
         of the EEA Agreement.
      
      52.      Consequently, it is necessary to assess whether the national legislation is discriminatory in nature or in effect.
      
      2.      The existence of discrimination
      53.      First of all, it should be recalled that, according to the first paragraph of Article 49 EC, restrictions on freedom to provide
         services within the Community are to be prohibited in respect of nationals of Member States who are established in a State
         of the Community other than that of the person for whom the services are intended. 
      
      54.      The Court has consistently held that the freedom to provide services entails, inter alia, the abolition of any discrimination
         against a person providing services on account of his nationality or the fact that he is established in a Member State other
         than the one in which the service is provided. (15)
      
      55.      In general, it must be acknowledged that any tax exemption results in those who do not benefit from it being treated differently.
         Moreover, in this case it is common ground that the Spanish legislation at issue treats winnings from betting organised by
         the entities listed in Article 7(ñ) of the law on income tax more favourably for tax purposes than winnings from betting organised
         by other national entities and by all foreign entities, whatever their characteristics. 
      
      56.      It is now necessary to examine whether that undeniable difference in treatment under the Spanish legislation at issue constitutes
         discrimination against organisers of games of chance established abroad.
      
      57.      According to the settled case-law of the Court, the general principle of equality, of which the prohibition of discrimination
         on grounds of nationality is merely a specific expression, is one of the fundamental principles of Community law. That principle
         requires that comparable situations should not be treated differently unless differentiation is objectively justified. (16)
      
      58.      Hence, in order to assess whether the Spanish legislation may be considered discriminatory, it is necessary to determine which
         Spanish and foreign entities are in a comparable situation in the present case.
      
      59.      I would point out that all the organisers of games of chance covered by the exemption provided for by the legislation at issue
         in the present case are not only established in Spain but are also public entities or non-profit-making bodies pursuing activities
         of a social character.
      
      60.      With regard, in that context, to the Spanish Government’s argument that the Spanish legislation at issue does not define the
         scope of the exemption by reference to certain specific characteristics and that there is consequently no discrimination against
         non-resident entities with characteristics similar to those listed in the provision at issue, it is important to note that,
         in its defence, the Spanish Government contradicted that argument on several occasions. It stated that ‘they are exemptions
         laid down on the basis of the identity of the organisers’ ‘which all pursue social or charitable non-profit-making activities’.
         It even states that ‘the differences in treatment in relation to other lottery organisers offering equivalent products arise
         solely because the latter (whether they are Spanish or foreign) do not possess those particular qualities’. Finally, the Spanish
         Government points out that ‘the reasons which led the Spanish legislature to grant that exemption are of a social nature and
         the entities concerned are non-profit making’.
      
      61.      Therefore, although the Spanish legislation at issue does not expressly lay down any objective criteria for determining the
         entities distributing winnings which are to benefit from the tax exemption, the fact remains that those bodies could have
         been defined using criteria such as their status as public entities and non-profit-making bodies pursuing social activities.
      
      62.      In that context, it should be recalled that the Court held in Persche that, whilst it is lawful for a Member State to restrict the grant of tax advantages to bodies pursuing certain charitable
         purposes, a Member State cannot however restrict the benefit of such advantages only to bodies established in that State whose
         activities are thus capable of absolving it of some of its responsibilities. (17)
      
      63.      The Court pointed out that a body established in one Member State which pursues the same charitable purposes and which is
         recognised as pursuing those purposes by another Member State, if it satisfies the requirements imposed by that other Member
         State for the grant of tax advantages, is, in respect of the grant by the latter Member State of those advantages, in a situation
         comparable to that of bodies recognised as having charitable purposes which are established in the latter State. (18)
      
      64.      Although Persche concerned the deductibility for tax purposes of the value of gifts made by a resident of a Member State to a body recognised
         as charitable in another Member State – and not with the exemption from taxation of winnings from games of chance –, the fact
         remains that the principle set out in Persche may be applicable by analogy in the present case. 
      
      65.      The public bodies and entities pursuing social or charitable non‑profit-making activities in relation to which the Commission
         has brought this action have, like the body recognised as charitable in Persche, charitable purposes and their activities are, likewise, capable of absolving the Member State of some of its responsibilities.
         Both the deductibility of the value of gifts, at issue in Persche, and the exemption of winnings, the subject-matter of the present case, constitute measures which are applicable in income-tax
         matters and give rise to a tax advantage for their beneficiaries. 
      
      66.      Therefore, LAE, the bodies or entities of the Autonomous Communities, the Spanish Red Cross and ONCE are in a situation comparable
         to that of public bodies and the entities pursuing social or charitable non-profit-making activities established in another
         Member State and having the same objectives.
      
      67.      As I have already stated in point 55 of this Opinion, the Spanish legislation at issue treats winnings from betting organised
         by the entities listed in Article 7(ñ) of the law on income tax more favourably than winnings from betting organised by other
         national entities and by all foreign entities. Consequently, public bodies and entities pursuing non-profit-making activities
         established in another Member State and having the same objectives as the Spanish entities covered by that exemption are in
         a less favourable position than the latter. 
      
      68.      Taking into account the fact, also undisputed, that all the bodies covered by the tax exemption in question are established
         in Spain, I take the view that the tax provisions at issue in this case constitute discrimination on grounds of nationality
         against public bodies and entities pursuing social or charitable non-profit-making activities established in another Member
         State and having the same objectives as the Spanish entities benefitting from that measure.
      
      69.      However, it should be pointed out that that discrimination does not affect all organisers of games of chance established in
         another Member State. Hence, as the Spanish Government emphasises, subject to Article 7(ñ) of the law on income tax, the winnings
         from all forms of games of chance organised by resident entities are subject to the same taxation as winnings from such games
         organised by non‑residents. Consequently, profit-making private foreign entities or foreign entities which pursue social activities,
         but have objectives other than those of the Spanish entities covered by the exemption, are subject to the same tax treatment
         as all the Spanish bodies not referred to by that provision.. 
      
      70.      Nevertheless, it must not be overlooked that the application claims that the Kingdom of Spain, in its legislation, establishes
         a difference in treatment between winnings from lotteries, games of chance and betting organised in Spain that are exempted from income tax and winnings from lotteries, games of chance and betting organised outside Spain. (19) The Commission claims that the Spanish Government’s legislation thereby establishes more extensive discrimination against
         all organisers of games of chance established outside Spain. I therefore propose that the Court should recognise the existence
         of discrimination only in part, in so far as it operates between, on the one hand, the entities listed in Article 7(ñ) of
         the law on income tax and, on the other hand, the public bodies and entities pursuing social or charitable non-profit-making
         activities established in another Member State and having the same objectives as the Spanish entities concerned, and should
         dismiss the remainder of the application as unfounded.
      
      71.      Although the discriminatory exemption applies only to a small number of Spanish entities, its economic effects are considerable.
         As the Commission points out, it follows from the Annual Report on Gambling in Spain of 2006, published by the Spanish Interior
         Ministry, that, according to the percentage share by management type, 40.8% of games of chance (in terms of sums wagered)
         were organised by LAE and ONCE (33.4% and 7.4% respectively), with the consequence that that exemption covers more than 40%
         of the Spanish market for games of chance. 
      
      72.      That consequence is all the more significant since the Spanish Government has not refuted the Commission’s argument – also
         borne out by the Annual Report on Gambling in Spain of 2006 – that the Spanish legislation exempts from income tax almost
         all the winnings from a particular sector of services provided by betting organisers established in Spain, namely the organisation
         of games of chance in which winnings are deferred in time and participants simply purchase a betting form or slip. The Spanish
         Government merely claims that certain instant games are also organised by the entities distributing winnings which benefit
         from the tax exemption, an assertion which does not exclude the possibility that most games of chance in which winnings are
         deferred in time are organised by the entities covered by the exemption. Moreover, it is important to note that that type
         of game is more likely to be provided on a cross-border basis, because it requires no infrastructure in other countries since
         such services may be provided from any other Member State. 
      
      73.      Taking into account that economic consequence of the discriminatory exemption, I would reject the Spanish Government’s argument
         that the Spanish Red Cross and the French Red Cross are not in a comparable situation because the latter (a) does not have,
         in Spain, a similar network of sales outlets and (b) has never applied for approval to organise games of chance. With regard
         to the first argument, quite apart from the fact that the two organisations unquestionably pursue the same objectives and
         have the same characteristics – which makes their situation not only comparable but also similar –, it must be borne in mind,
         as emphasised in the preceding point, that most games of chance covered by the exemption at issue are games that do not require
         any distribution system. 
      
      74.      As for the other argument, I consider that it is not necessary for a non‑resident entity to apply for authorisation before
         the discrimination at issue can be found to exist. Therefore, I take the view that that argument of the Spanish Government
         is irrelevant.
      
      75.      Finally, as regards the Spanish Government’s argument concerning the non-comparability of the situation of a Spanish taxpayer
         who benefits from the tax exemption on winnings from games of chance organised by the entities referred to and that of a taxpayer
         of another Member State in which those winnings are subject to taxation, it should be pointed out that the law on income tax
         concerns only Spanish taxpayers and that the discrimination does not affect the taxpayers of other Member States, but operates
         to the detriment of organisers of games of chance established in other Member States wishing to extend their activities to
         the territory of Spain. Consequently, in my view that argument of the Spanish Government is also irrelevant.
      
      76.      To the extent that the Spanish legislation at issue is regarded as discriminatory within the meaning of the first paragraph
         of Article 49 EC and Article 36 of the EEA Agreement, it constitutes in itself a restriction on freedom to provide services
         for the purposes of the Treaty and is therefore, in principle, contrary to Community law.
      
      3.      Justifications
      77.      Restrictions on the freedom to provide services can nevertheless be permitted pursuant to the derogations expressly provided
         for by Articles 45 EC and 46 EC or justified, in accordance with the Court’s case-law, by overriding reasons relating to the
         public interest. (20)
      
      78.      With regard, first, to discriminatory restrictions on the freedom to provide services, the Court has repeatedly held that
         such measures may be justified only on the grounds expressly provided for in Articles 45 EC and 46 EC, that is to say a connection,
         even on an occasional basis, with the exercise of official authority, or grounds of public policy, public security or public
         health. (21)
      
      79.      With regard, on the other hand, to restrictions resulting from measures which apply without distinction, the Court has accepted
         that, in so far as they apply without distinction to organisers established on the territory and to those established in another
         Member State, they may be justified by overriding reasons relating to the public interest, such as the protection of consumers
         and of the social order, provided that they are suitable for securing the attainment of the objective which they pursue and
         do not go beyond what is necessary in order to attain it. (22)
      
      80.      As regards games of chance, the Court has not yet adopted in a rigid way the distinction described in the two preceding paragraphs. (23) In Läärä and Others and Zenatti, even though those cases concerned legislation applicable without distinction, which could be justified by overriding reasons
         relating to the public interest, the Court also referred to the grounds of justification under Article 46 EC without having
         carried out a separate assessment on the basis of that provision. (24) In Gambelli and Others, the Court found that the measures at issue constituted a restriction on the freedom to provide services, but left to the
         national court the task of determining whether the legislation in question was discriminatory. (25) In Lindman, which concerned discriminatory legislation, the Court did not examine the grounds of justification cited; it reached a decision
         solely by reference to the Member State’s failure to submit an analysis of the appropriateness and proportionality of the
         restrictive measure. (26)
      
      81.      It is difficult to establish clear criteria for distinguishing between reasons capable of justifying discriminatory measures
         and those capable of justifying measures applicable without distinction in this area, where particular moral, religious and
         cultural features, and the morally and financially harmful consequences for the individual and society associated with gaming
         and betting, serve to justify the fact that national authorities have a margin of discretion sufficient to enable them to
         determine the requirements capable of triggering the application of different grounds of justification. (27)
      
      82.      In this case, it must be noted that the line of argument put forward by the Spanish Government and by the Commission reflects
         the situation described in the preceding point. In order to address the Commission’s assertion relating to the existence of
         discrimination on grounds of nationality, the Spanish Government cites grounds which may, in principle, justify measures which
         apply without distinction but not discriminatory measures. It puts forward grounds of social policy, reasons relating to the
         prevention of money laundering and to combating tax evasion, and objectives relating to consumer protection.
      
      83.      Consequently, in order to be able to assess those arguments in depth, while maintaining the distinction which, as stated in
         points 78 and 79 above, the Court has generally drawn between justifications for discriminatory measures and justifications
         for measures which are applicable without distinction, I will examine those three sets of justifications – which the Kingdom
         of Spain has founded on overriding reasons relating to the public interest – by ascertaining whether it is appropriate to
         take into consideration the elements on which they are based for the purpose of the exemptions provided for in Article 46
         EC. If I consider that they constitute discrimination on grounds of nationality, I must take into consideration the justifications
         relied on by the Spanish Government only to the extent that they could, in terms of their specific content, be understood
         as being in the nature of grounds of justification capable of being relied on if there were discrimination.
      
      (a)    The arguments capable of being interpreted as relating to the protection of public health
      84.      First of all, it must be noted that some of the arguments submitted by the Spanish Government in the context of reasons connected
         with protecting the social order may be reduced to the ground of protecting public health, provided for in Article 46 EC.
         According to the Spanish Government, the legislation in question should discourage gambling in general by establishing the
         principle that such income is taxed and the exemption in question seeks to channel existing demand for gambling towards forms
         of gambling which are characterised by the requirement to wager small sums unlikely to lead to addiction or compulsive gambling.
      
      85.      With regard to the argument concerning the objective of discouraging involvement in games of chance, there is little doubt
         that the main attraction of a game of chance is linked to the amount of potential winnings. By reducing the net winnings,
         the taxation of winnings from games of chance is likely to make participation in that type of gambling less attractive. However,
         the Commission’s application does not refer to the taxation of winnings from games of chance per se, but to the allegedly discriminatory nature of the exemption of winnings from games of chance organised by the Spanish entities
         listed in Article 7(ñ) of the law on income tax. That exemption of winnings is likely instead to encourage consumers to participate
         in such lotteries, games of chance and betting by making them more attractive than the games of chance organised by entities
         in which winnings are subject to tax. Consequently, the exemption at issue is not suitable for ensuring the attainment of
         the objective of discouraging participation in games of chance. 
      
      86.      As regards the argument concerning the objective of channelling the desire to gamble towards certain forms of gambling in
         order to prevent compulsive gambling, it must be noted that the Spanish Government, despite the settled case‑law which requires
         the submission of analyses capable of establishing the appropriateness and proportionality of the restrictive measure, (28) adduced no evidence of a statistical or other nature to suggest that only the entities benefitting from the exemption organise
         games of chance characterised by the requirement to wager small sums or, on the other hand, that they organise only such types
         of games of chance. Moreover, it is common ground that the legislation in question does not take into account the various
         types of games of chance for the purpose of granting the exemption, but is based on the characteristics of and objectives
         pursued by the organisers of the games of chance; hence, it is difficult to understand how that rule is appropriate for the
         purpose of channelling the desire to gamble towards games which require small sums to be wagered. I therefore take the view
         that the exemption in question is not suitable for ensuring the attainment of such an objective.
      
      87.      With regard to the Spanish Government’s argument that the income received by the entities whose games qualify for the exemption
         in question contributes to the financing of infrastructure and objectives that are socially useful, it must be pointed out
         that economic grounds are not among the grounds included in Article 46 EC nor can they constitute overriding reasons in the
         public interest justifying a restriction of the freedom to provide services guaranteed by the Treaty. (29)
      
      88.      As the Court has already held in Zenatti and Gambelli and Others, although it is not irrelevant that lotteries and other types of gambling may contribute significantly to the financing of
         non-profit-making or public-interest activities, that motive cannot in itself be regarded as an objective justification for
         restrictions on the freedom to provide services. (30) Consequently, the Spanish legislation in question cannot be justified on the basis of ensuring the financing of certain socially
         useful objectives.
      
      89.      Finally, it is necessary to consider the two comments made by the Spanish Government in the context of its plea claiming a
         social policy justification. On the one hand, the Spanish Government raises the possibility of applying, in the assessment
         of the restrictions in the present case, the reasoning adopted by the Court in connection with the application of that justification
         in Schindler, Läärä and Others and Zenatti, on account of the similarity of the legislation at issue with the legislation examined by the Court in those cases. On the
         other hand, the Spanish Government submits that the taxation in question is indirect and less restrictive in nature as compared
         with the limitation on gaming activities which was the subject-matter of the three cases referred to above.
      
      90.      In that regard, it is important to bear in mind that, in Schindler and Zenatti, the Court pointed out that the national authorities have a discretion sufficient to allow them to determine what is required
         for the purpose of protecting consumers and the social order; according to those judgments it is for the national authorities
         to assess not only whether it is necessary to restrict gaming activities but also whether they should be prohibited, provided
         that those restrictions are not discriminatory. (31)
      
      91.      As is clear from Zenatti, Gambelli and Others, and Placanica and Others, restrictions must in any event reflect a concern to bring about a genuine diminution of gambling opportunities. (32) Moreover, as the Court specifically asserted in Gambelli and Others, in so far as the authorities of a Member State incite and encourage consumers to participate in lotteries, games of chance
         and betting, those authorities cannot invoke public social order concerns relating to the need to reduce opportunities for
         betting in order to justify restrictive measures. (33)
      
      92.      In the present case, although taxing winnings from games of chance is a less restrictive measure than limiting the number
         of organisers of games of chance or restricting such activities, the Spanish exemption at issue cannot be justified by the
         need to protect the social order since that tax measure, as I have already stated in point 68 of this Opinion, discriminates
         on grounds of nationality. The tax exemption in question is not, unlike the national provisions at issue in Schindler, Läärä and Others and Zenatti, legislation which applies without distinction and which consequently could be justified by overriding reasons relating to
         the public interest. On the contrary, it is a discriminatory measure which can be justified solely on the grounds set out
         in Article 46 EC. As a result, it is not appropriate to adopt the Court’s reasoning in those judgments insofar as concerns
         the justification relating to the protection of the social order.
      
      93.      In any event, with regard to the criteria established in respect of social policy justifications in Zenatti, Gambelli and Others and Placanica and Others, it must be pointed out that the tax exemption in question does not reflect a concern to bring about a genuine diminution
         of gambling opportunities but, on the contrary, is such as to encourage participation in the games of chance whose winnings
         are exempt from income tax. 
      
      94.      In the light of the foregoing considerations, it must be concluded that the Spanish legislation at issue is not such as to
         ensure attainment of the objective of protecting public health provided for in Article 46 EC.
      
      (b)    Arguments capable of being interpreted as grounds of public policy
      95.      With regard to the objective of preventing money laundering and tax evasion, which may be interpreted as grounds of public
         policy provided for in Article 46 EC, I find it difficult to understand, from the information provided by the Spanish Government,
         how the exemption of winnings from games of chance organised by the Spanish entities listed in Article 7(ñ) of the law on
         income tax is suitable or necessary for attaining those objectives. It is not clear to me how the exemption is capable of
         preventing such schemes and I take the view that that measure in itself in no way contributes to the prevention of money laundering or tax evasion.
      
      96.      At the same time, I feel bound to point out that the monitoring system involving verification of the lists of winners could
         in principle function just as well without the exemption of those winnings. Indeed, there is nothing to prevent the Spanish
         authorities from continuing to require that the actual organisers of games of chance who benefit from that exemption provide
         information concerning the identity of recipients and the amount of winnings received, without maintaining the exemption at
         issue.
      
      97.      With regard to the effectiveness of that monitoring system, it is important to note that that monitoring affects only the
         Spanish entities listed in Article 7(ñ) of the law on income tax; that is to say just over 40% (in terms of sums wagered)
         of the Spanish market for games of chance is covered by that monitoring. Moreover, according to Article 69(4) of the Spanish
         regulation on personal income tax, cited in point 38 of this Opinion, that declaration requirement applies to winnings from
         games of chance organised by the entities which benefit from the exemption where those winnings are above the EUR 3 000 threshold.
         
      
      98.      Even if it were accepted that such monitoring is useful for preventing money laundering and tax evasion and that its possible
         extension to organisers of games of chance established abroad is likely to lead to difficulties, there are serious doubts
         concerning its effectiveness and suitability for attaining that objective in the light of the fact that more than half the
         Spanish market for games of chance is not subject to that declaration requirement concerning the identity of winners and the
         amount of winnings. 
      
      99.      Moreover, I would draw attention to the fact that the winnings covered by the exemption from income tax are not subject –
         on account of that exemption and unlike winnings from other games of chance – to the income declaration which is generally
         required of all Spanish taxpayers. I am sure that the individual declaration of income to the Spanish tax authorities – which
         is submitted annually, that is to say as frequently as the lists of winners are communicated – is capable of providing exact
         information on the identity of winners and on the amount of winnings, with the result that that declaration requirement is
         also capable of effectively preventing money laundering and tax evasion. In that case, since that declaration requirement
         covers all winnings and applies irrespective of whether the source of the winnings are games of chance organised by Spanish
         entities or entities established abroad, the difficulty concerning the communication of information on a winner’s identity
         and on the amount received in the context of the mutual assistance by the tax authorities of the Member States provided for
         by Directive 77/799 as well as the problems of extra-territoriality raised by the Spanish Government do not even arise. 
      
      100. Accordingly, there are fiscal monitoring measures other than that referred to in point 96 of this Opinion which are capable
         of preventing money laundering and tax evasion, including in relation to winnings from games of chance organised by entities
         established outside Spain, and the discriminatory exemption introduced by the Spanish legislation at issue is not necessary
         for the attainment of those objectives.
      
      101. In the light of those considerations, I take the view that there is not a sufficient link between the exemption in question
         and the public policy justification provided for in Article 46 EC, with the result that such an objective is not capable of
         justifying the restriction at issue.
      
      (c)    The third set of arguments, based on the notion of protecting consumers
      102. With regard to the third set of grounds, it should be noted that the arguments put forward by the Spanish Government are not
         capable of justifying the exemption at issue for two reasons.
      
      103. On the one hand, I take the view that the arguments put forward in the context of justifications based on consumer protection
         cannot be reduced to grounds provided for in Article 46 EC. The Spanish Government has not explained the extent to which the
         need for administrative authorisation to carry out the activity, the establishment of a minimum percentage for the amounts
         staked and distributed as prizes, the controlled advertising and the administrative supervision of the activity pursued, which
         are certainly capable of protecting the interests of consumers, relate to the protection of public security, public policy
         or public health.
      
      104. On the other hand, in any event, there is not, in my view, a direct link between the exemption at issue and the measures relating
         to consumer protection referred to by the Spanish Government. The requirement for administrative authorisation, the restrictions
         relating to the sums wagered and to the distribution of prize money, the rules relating to advertising and the administrative
         monitoring of the activity are general in scope, and therefore those measures affect not only the entities listed in Article 7(ñ)
         of the law on income tax, but all Spanish or foreign entities pursuing their activities in the area of lotteries, games of
         chance and betting in Spanish territory. That absence of a direct link between the exemption at issue and the administrative
         measures intended to protect the interests of consumers means that that exemption is not suitable for attaining that objective.
      
      105. Consequently, I take the view that the arguments cited by the Spanish Government in the context of justifications based on
         consumer protection must be rejected.
      
      106. Having regard to all those considerations, the Spanish legislation at issue cannot be justified on any grounds provided for
         in Article 46 EC.
      
      VI –  Costs
      107. Under Article 69(2) of the Rules of Procedure of the Court, the unsuccessful party is to be ordered to pay the costs if they
         have been applied for in the successful party’s pleadings. Under Article 69(3) of those rules, where each party succeeds on
         some and fails on other heads, or where the circumstances are exceptional, the Court may order that the costs be shared or
         that the parties bear their own costs.
      
      108. If, as I propose, the application is upheld only in part, that is to say, in so far as it relates to the discrimination on
         grounds of nationality against public bodies and entities pursuing social or charitable non-profit-making activities established
         in another Member State and having the same objectives as the Spanish entities covered by the exemption at issue, and not
         in so far as it relates to the alleged discrimination against all other organisers of games of chance established outside
         Spain, I consider that it would be fair for the parties to share the costs. More specifically, I suggest that the Kingdom
         of Spain be ordered to pay two-thirds of the total costs and the Commission be ordered to pay the remaining third.
      
      VII –  Conclusion
      109. In the light of all the foregoing considerations, I propose that the Court should:
      
      (1)      uphold the application in part, by declaring that, by maintaining in force fiscal legislation which grants a tax exemption
         to winnings from lotteries, games of chance and betting organised in the Kingdom of Spain by certain Spanish public bodies
         and entities pursuing social or charitable non-profit‑making activities, but not granting such an exemption to winnings from
         lotteries, games of chance and betting organised by public bodies and entities pursuing social or charitable non-profit-making
         activities established in another Member State and having the same objectives as the Spanish entities concerned, the Kingdom
         of Spain has failed to fulfil its obligations under Article 49 EC and Article 36 of the Agreement on the European Economic
         Area signed on 2 May 1992; 
      
      (2)      dismiss the remainder of the application;
      (3)      order the Kingdom of Spain to pay two-thirds of the total costs and the Commission of the European Communities to pay the
         remaining third.
      
      1 –	Original language: French.
      
      2 –	OJ 1994 L 1, p 3.
      
      3 –	Published in the Boletín Oficial del Estado of 29 November 2006.
      
      4 –	Published in the Boletín Oficial del Estado of 27 December 2007, p. 53323.
      
      5 –	I consider it important to note that the French version of the wording of the application, when raising the issue of discrimination,
         refers to winnings from certain types of lotteries, games of chance and betting which are organised within the Kingdom of Spain and which are exempted from income
         tax. It should be pointed out that neither the Spanish version of the application nor the Spanish version of the reasoned
         opinion uses the expression ‘certain types’. On the contrary, they merely refer to ‘certain lotteries, games of chance and betting organised within the Kingdom of Spain’. Consequently, it is necessary to state that
         the Commission does not allege that the Kingdom of Spain discriminates only against certain types of gambling. The issue in
         this case, according to the Commission, is not discrimination associated with the typology of gambling, but, on the contrary,
         a restriction which applies to all lotteries, games of chance and betting irrespective of their type.
      
      6 –	Case C‑42/02 Lindman [2003] ECR I‑13519.
      
      7 –	See, in particular, Case C‑67/98 Zenatti [1999] ECR I‑7289.
      
      8 –	Lindman, paragraph 25.
      
      9 –	See Case C‑275/92 Schindler [1994] ECR I‑1039, and Case C‑124/97 Läärä and Others [1999] ECR I‑6067.
      
      10 –	Published in the Boletín Oficial del Estado of 31 March 2007.
      
      11 –	OJ 1977 L 336, p. 15.
      
      12 –	See, in particular, Case C‑80/94 Wielockx [1995] ECR I‑2493, paragraph 16, and Case C‑360/06 Heinrich Bauer Verlag [2008] ECR I‑7333, paragraph 17.
      
      13 –	See Schindler, paragraph 19.
      
      14 –	See Lindman, paragraph 21.
      
      15 –	See Case C‑288/89 Collectieve Antennevoorziening Gouda [1991] ECR I‑4007, paragraph 10; Case C‑17/92 Distribuidores Cinematográficos [1993] ECR I‑2239, paragraph 13; and Case C‑490/04 Commission v Germany [2007] ECR I‑6095, paragraph 83.
      
      16 –	See, in particular, Case 810/79 Überschär [1980] ECR 2747, paragraph 16; Case C‑174/89 Hoche [1990] ECR I‑2681, paragraph 25; and Case C‑418/06 P Belgium v Commission [2008] ECR I‑3047, paragraph 93.
      
      17 –	Case C‑318/07 Persche [2009] ECR I‑0000, paragraph 44.
      
      18 –	Ibid., paragraph 50.
      
      19 –	My emphasis.
      
      20 –	 Läärä and Others, paragraph 30; Zenatti, paragraph 28; and Case C‑243/01 Gambelli and Others [2003] ECR I‑13031, paragraph 60.
      
      21 –	See Case 352/85 Bond van Adverteerders and Others [1988] ECR 2085, paragraphs 32 and 33; Case C‑353/89 Commission v Netherlands [1991] ECR I‑4069, paragraph 15; and Case C‑388/01 Commission v Italy [2003] ECR I‑721, paragraph 19.
      
      22 –	See Schindler, paragraph 54; Läärä and Others, paragraph 31, and Zenatti, paragraph 29.
      
      23 –	In that regard, it must be recalled that in his Opinion in Danner, which concerned freedom to provide services, Advocate General Jacobs favoured the abandonment of the distinction between
         the grounds of justification for discriminatory measures and for measures which apply without distinction, but the Court did
         not adopt that proposal. See point 40 of the Opinion of Advocate General Jacobs in Case C‑136/00 Danner [2002] ECR I‑8147.
      
      24 –	See Läärä and Others, paragraph 31, and Zenatti, paragraph 29.
      
      25 –	Paragraphs 70 and 71.
      
      26 –	Paragraph 26.
      
      27 –	See Schindler, paragraphs 60 and 61; Zenatti, paragraph 15; and Gambelli, paragraph 63.
      
      28 –	Lindman, paragraph 25.
      
      29 –	See, in particular, Case C‑484/93 Svensson and Gustavsson [1995] ECR I‑3955, paragraph 15, and Commission v Italy, paragraph 19 and 22.
      
      30 –	Zenatti, paragraph 36, and Gambelli and Others, paragraph 62.
      
      31 –	Schindler, paragraph 61, and Zenatti, paragraph 15.
      
      32 –	Zenatti, paragraph 36; Gambelli and Others, paragraph 62; and Joined Cases C‑338/04, C‑359/04 and C‑360/04 Placanica and Others [2007] ECR I‑1891, paragraph 53.
      
      33 –	Gambelli and Others, paragraph 69.