Criminal proceedings against Otto Sjöberg (C-447/08) and Anders Gerdin (C-448/08).
Date: 2010-07-08
32. It must be recalled at the outset that Article 49 EC requires the abolition of all restrictions on the freedom to provide services, even if those restrictions apply without distinction to national providers of services and to those from other Member States, when they are liable to prohibit, impede or render less advantageous the activities of a service provider established in another Member State where it lawfully provides similar services. Moreover, the freedom to provide services covers both providers and recipients of services (Case C-42/07 Liga Portu§guesa de Futebol Profissional and Bwin International  [2009] ECR I-0000, paragraph 51 and the case-law cited).
33. It is common ground in this regard that the effect of Paragraph 38(1)(1) of the Lotterilag, which prohibits the promotion in Sweden both of gambling organised legally in other Member States and of unlicensed gambling in Sweden, is to restrict Swedish consumers’ participation in such gambling. The purpose of that provision is to ensure that those consumers take part in gambling only in the context of the system licensed at national level, thereby in particular ensuring that private profit-making interests are excluded from that sector.
34. That provision consequently constitutes a restriction on the freedom of Swedish residents to receive, on the internet, services offered in other Member States. It also imposes, so far as providers of gambling services established in Member States other than the Kingdom of Sweden are concerned, a restriction on their freedom to provide services in the Kingdom of Sweden.
36. Article 46(1) EC, applicable in this field by reason of Article 55 EC, allows restrictions justified on grounds of public policy, public security or public health. In addition, a certain number of overriding reasons in the general interest have been recognised by case-law, such as the objectives of consumer protection and the prevention of both fraud and incitement to squander money on gambling, as well as the general need to preserve public order (see Joined Cases C-338/04, C‑359/04 and C‑360/04 Placanica and Others  [2007] ECR I-1891, paragraph 46 and Liga Portuguesa de Futebol Profissional and Bwin International , paragraph 56).
37. In that context, it must be observed that the legislation on gambling is one of the areas in which there are significant moral, religious and cultural differences between the Member States. In the absence of Community harmonisation in the field, it is for each Member State to determine in those areas, in accordance with its own scale of values, what is required to protect the interests in question ( Liga Portuguesa de Futebol Profissional and Bwin International , paragraph 57).
38. The mere fact that a Member State has opted for a system of protection which differs from that adopted by another Member State cannot affect the assessment of the need for, and proportionality of, the provisions enacted to that end. Those provisions must be assessed solely by reference to the objectives pursued by the competent authorities of the Member State concerned and the level of protection which they seek to ensure ( Liga Portuguesa de Futebol Profissional and Bwin International , paragraph 58).
39. The Member States are therefore free to set the objectives of their policy on gambling and, where appropriate, to define in detail the level of protection sought. However, the restrictive measures that they impose must satisfy the conditions laid down in the case-law of the Court as regards their proportionality ( Liga Portuguesa de Futebol Profissional and Bwin International , paragraph 59).
40. It is thus necessary to examine in particular whether, in the cases in the main action, the restriction on advertising imposed by the Lotterilag in respect of gambling organised in Member States other than the Kingdom of Sweden, by private operators for the purpose of profit, is suitable for achieving the legitimate objective or objectives invoked by that Member State, and whether it does not go beyond what is necessary in order to achieve those objectives. National legislation is moreover appropriate for ensuring attainment of the objective pursued only if it genuinely reflects a concern to attain it in a consistent and systematic manner. In any event, those restrictions must be applied without discrimination ( Liga Portuguesa de Futebol Profissional and Bwin International , paragraphs 60 and 61).
42. In that context, the objective of imposing strict limits on the carrying on of gambling operations for profit has been recognised by case‑law, the Court having acknowledged the compatibility with European Union law of national legislation seeking to prevent lotteries from being operated exclusively on a commercial basis and managed by private organisers who themselves receive the profits from that activity (see, to that effect, Case C-275/92 Schindler  [1994] ECR I‑1039, paragraphs 57 to 59).
49. Although in principle criminal legislation is a matter for which the Member States are responsible, the Court has consistently held that European Union law sets certain limits to their power, and such legislation may not restrict the fundamental freedoms guaranteed by European Union law ( Placanica and Others , paragraph 68).
50. It follows moreover from the case-law of the Court that restrictive measures imposed by the Member States on account of the pursuit of objectives in the public interest must be applied without discrimination ( Placanica and Others , paragraph 49, and Liga Portuguesa de Futebol Profissional and Bwin International , paragraph 60).
54. In that context, it must be recalled that the cooperation between the national courts and the Court of Justice established by Article 267 TFEU is based on a clear division of responsibilities. In proceedings brought on the basis of that article, the interpretation of provisions of national law is a matter for the courts of the Member States, not for the Court of Justice (see, to that effect, Placanica and Others , paragraph 36, and Liga Portuguesa de Futebol Profissional and Bwin International , paragraph 37).