Commission of the European Communities v Hellenic Republic.
Date: 2006-10-26
23. As regards the Commission’s first head of claim, ‘goods’ are defined as products which can be valued in money and which are capable, as such, of forming the subject of commercial transactions (Case 7/68 Commission  v Italy  [1968] ECR 617, 626 and Case C-97/98 Jägerskiöld  [1999] ECR I‑7319, paragraph 30).
25. It should also be borne in mind that the free movement of goods is one of the fundamental principles of the Treaty (Case C-265/95 Commission  v France  [1997] ECR I-6959, paragraph 24, and Case C-112/00 Schmidberger  [2003] ECR I-5659, paragraph 51) which is expressed in the prohibition in Article 28 EC of quantitative restrictions between Member States and all measures having equivalent effect.
27. According to the Court’s case-law, all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be regarded as measures having an effect equivalent to quantitative restrictions and are thus prohibited by that article (see Case C‑41/02 Commission  v Netherlands  [2004] ECR I‑11375, paragraph 39 and the case-law cited).
31. However, the Court has consistently held that a national rule which hinders the free movement of goods is not necessarily contrary to Community law if it can be justified by one of the public interest grounds set out in Article 30 EC or by one of the overriding requirements laid down by the Court’s case-law (see Case C‑366/04 Schwarz  [2005] ECR I‑10139, paragraph 30 and the case-law cited).
33. According to the Court’s case-law, these considerations, which must be taken together, concern the protection of the recipients of the service and, more generally, of consumers, as well as the maintenance of order in society, and those objectives are amongst those which may be regarded as overriding reasons relating to the public interest (see, to that effect, Case C‑275/92 Schindler  [1994] ECR I-1039, paragraph 58, and the case-law cited, and Case C‑124/97 Läärä and Others [1999] ECR I‑6067, paragraph 33).
34. The Court has also held that those grounds are capable of justifying, in the light of Article 28 EC and taking account of the specific social and cultural features, restrictions which may go so far as to prohibit lotteries and other forms of gambling in a Member State (see, to that effect, Schindler , paragraph 59).
35. It is true that, in the judgments in Schindler  and Läärä , the Court drew attention to the fact that the moral, religious and cultural considerations which attach to lotteries, like other forms of gambling, in all the Member States may allow national legislation to restrict, or even prohibit, the practice of gambling and to prevent it from being a source of private profit. The Court also held that lotteries involve a high risk of crime or fraud, given the potentially high stakes and winnings, particularly when they are operated on a large scale. Furthermore, they are an incitement to spend which may have damaging individual and social consequences ( Schindler , paragraph 60, and Läärä , paragraph 13).
37. It follows that, since the electrical, electromechanical and electronic games cannot be considered to be games of chance, it cannot be accepted, in contrast to the contention of the Hellenic Republic, that the findings regarding games of chance upheld by the Court in Schindler  and Läärä may be applied to electric, electromechanic and electronic games.
47. As a preliminary point, it should be noted that although, in the absence of harmonised rules at Community level in the games sector, Member States remain, in principle, competent to define the conditions for the pursuit of the activities in that sector, they must, when exercising their powers in this area, respect the basic freedoms guaranteed by the Treaty (see, to that effect, Case C‑58/98 Corsten  [2000] ECR I-7919, paragraph 31, and Case C‑514/03 Commission  v Spain  [2006] ECR I-963, paragraph 23).
48. According to the Court’s case-law, Articles 43 EC and 49 EC require the elimination of restrictions on the freedom of establishment and the freedom to provide services and that all measures which prohibit, impede or render less attractive the exercise of such freedoms must be regarded as constituting such restrictions (see Case C‑439/99 Commission   v Italy  [2002] ECR I-305, paragraph 22, and Case C‑451/03 Servizi Ausiliari Dottori Commercialisti  [2006] ECR I‑2941, paragraph 31).
49. The Court has also held that national measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty can be justified only if they fulfil four conditions: they must be applied in a non-discriminatory manner; they must be justified by overriding reasons based on the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain that objective (see Case C-424/97 Haim  [2000] ECR I-5123, paragraph 57, and the case-law cited).
53. As regards the freedom to provide services, it is settled case-law that, first, the activity of operating gaming machines must, irrespective of whether or not it is separable from activities relating to the manufacture, importation and distribution of such machines, be considered a service within the meaning of the Treaty provisions and, secondly, national legislation which only authorises the operation and playing of games in casinos constitutes a barrier to the freedom to provide services (see, to that effect, Case C-6/01 Anomar and Others  [2003] ECR I-8621, paragraphs 56 and 75).
54. The Court has also held, concerning Information Society services specifically, that Article 49 EC relates to the services which a provider established in a Member State offers via the internet – and so without moving – to recipients in another Member State, with the result that any restriction of those activities constitutes a restriction on the freedom to provide services (Case C‑243/01 Gambelli and Others  [2003] ECR I‑13031, paragraph 54).
60. The Court has already held that provisions such as Article 8(1) of  Directive 98/34 impose on Member States the duty to notify the Commission immediately of any draft technical regulation (judgment of 8 September 2005 in Case C-500/03 Commission  v Portugal , not published in the ECR, paragraph 39 and, as regards provisions similar to those of that directive, Case C‑139/92 Commission  v Italy  [1993] ECR I-4707, paragraph 3, and Case C‑273/94 Commission  v Netherlands  [1996] ECR I-31, paragraph 15).
61. However, measures such as those provided for in Articles 2(1) and 3 of Law No 3037/2002, in so far as they prohibit the installation in Greece of all electrical, electromechanical and electronic games, including all computer games, on all public and private premises apart from casinos, and the use of games on computers in undertakings providing internet services, and make the operation of such undertakings subject to the issue of a special authorisation, must be considered to be technical regulations within the meaning of Article 1(11) of Directive 98/34 (see, to that effect, Case C‑267/03 Lindberg  [2005] ECR I‑3247).