Naczelnik Urzędu Celnego I w Ł. v G.M. and M.S.
Date: 2016-10-13
16


It should be observed as a preliminary point that, according to settled case-law, in the procedure laid down by Article 267 TFEU, providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. With this in mind, the Court of Justice may, where necessary, have to reformulate the questions referred to it (see, to that effect, judgment of 28 April 2016, Oniors Bio, C‑233/15, EU:C:2016:305, paragraph 30 and the case-law cited). Further, the Court may decide to take into consideration rules of EU law to which the national court has made no reference in the wording of its question (order of 14 July 2016, BASF, C‑456/15, not published, EU:C:2016:567, paragraph 15 and the case-law cited).
18


It must be noted in that context that the concept of a ‘technical regulation’ extends to four categories of measures, namely, (i) the ‘technical specification’, within the meaning of Article 1(3) of Directive 98/34; (ii) ‘other requirements’, as defined in Article 1(4) of that directive; (iii) the ‘rule on services’, covered in Article 1(5) of that directive, and (iv) the ‘laws, regulations or administrative provisions of Member States prohibiting the manufacture, importation, marketing or use of a product or prohibiting the provision or use of a service, or establishment as a service provider’, under Article 1(11) of that directive (see judgment of 4 February 2016, Ince, C‑336/14, EU:C:2016:72, paragraph 70).
19


In that regard, first, it must be borne in mind that the concept of ‘technical specification’ presupposes that the national measure necessarily refers to the product or its packaging as such and therefore lays down one of the characteristics required of a product. In contrast, where a national measure lays down conditions governing the establishment of undertakings, such as provisions making the exercise of a business activity subject to prior authorisation, those conditions do not constitute technical specifications (see, to that effect, judgment of 21 April 2005, Lindberg, C‑267/03, EU:C:2005:246, paragraphs 57 and 59 and the case-law cited).
20


Second, before a condition can be classified within ‘other requirements’, within the meaning of Article 1(4) of Directive 98/34, a national measure must constitute a ‘condition’ which can significantly influence the composition or nature of the product concerned or its marketing (see, to that effect, judgment of 19 July 2012, Fortuna and Others, C‑213/11, C‑214/11 and C‑217/11, EU:C:2012:495, paragraph 35 and the case-law cited). However, it is necessary to determine whether such a measure is to be deemed a ‘condition’ relating to the use of the product concerned or whether it is, rather, a national measure falling within the category of technical regulations referred to in Article 1(11) of Directive 98/34. Whether a national measure falls within one or other of those two categories of technical regulations depends on the scope of the prohibition laid down by that measure (see, to that effect, judgment of 21 April 2005, Lindberg, C‑267/03, EU:C:2005:246, paragraphs 73 and 74).
21


Third, the concept of a ‘technical regulation’, the subject of Article 1(5) of Directive 98/34, covers solely regulations relating to information society services, that is, any service provided at a distance by electronic means and at the individual request of a recipient of services (see, to that effect, judgment of 2 June 2005, Mediakabel, C‑89/04, EU:C:2005:348, paragraph 19).
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In that regard, it must be borne in mind that it is Article 14(1) of the Law on Games of Chance that restricts the organisation of roulette games, card games, dice games and gaming on machines to gaming casinos. That provision was notified to the Commission as a ‘technical regulation’, in view of the fact that the Court has previously held, first, that a national measure which reserves the organisation of certain games of chance to casinos alone constitutes a ‘technical regulation’, within the meaning of Article 1(11) of Directive 98/34, in so far as it can significantly influence the nature or the marketing of the products used in that context and, second, that a prohibition on operating certain products outside casinos can significantly influence the marketing of those products, by reducing the outlets in which they can be used (see, to that effect, judgment of 11 June 2015, Berlington Hungary and Others, C‑98/14, EU:C:2015:386, paragraphs 98 and 99).
28


The argument of the Commission, that the close link between the two provisions of national law concerned means that it is impossible to isolate Article 14(1) of the Law on Games of Chance from Article 6(1) of that law, cannot be accepted. As stated by the Advocate General in points 38 to 44 of his Opinion, Article 6(1) of that law and Article 14(1) of that law differ in their function and scope. The description in Article 6(1) of that law, which specifies the authorisation at issue as an authorisation ‘to operate a gaming casino’, does not alter that conclusion.
29


Accordingly, it must be held that Article 6(1) of the Law on Games of Chance cannot be regarded as falling within the category of ‘other requirements’, within the meaning of Article 1(4) of Directive 98/34, since the authorisation required by that provision of national law for the organisation of games of chance constitutes a condition imposed with respect to the activity of organising such games, as distinct from Article 14(1) of that law, which imposes conditions with respect to the products concerned by prohibiting their use other than in casinos.
30


Further, in accordance with settled case-law, provisions of national law which merely lay down conditions governing the establishment or provision of services by undertakings, such as provisions making the exercise of a business activity subject to prior authorisation, do not constitute technical regulations within the meaning of Article 1(11) of Directive 98/34 (see, to that effect, judgment of 4 February 2016, Ince, C‑336/14, EU:C:2016:72, paragraph 76 and the case-law cited).