Stanleybet International Ltd (C‑186/11) William Hill Organization Ltd (C‑186/11) William Hill plc (C‑186/11) Sportingbet plc (C‑209/11) v Ipourgos Oikonomias kai Oikonomikon Ipourgos Politismou.
Date: 2013-01-24
21. It is common ground that a Member State’s legislation, such as that described by the national court, constitutes a restriction on the freedom to provide services guaranteed by Article 49 EC or on the freedom of establishment guaranteed by Article 43 EC inasmuch as it provides for a monopoly for OPAP and prohibits providers such as Stanleybet, William Hill and Sportingbet, established in another Member State, from offering games of chance on Greek territory (see, to that effect, Joined Cases C-316/07, C-358/07 to C-360/07, C-409/07 and C-410/07 Stoß and Others  [2010] ECR I-8069, paragraph 68 and the case-law cited).
22. It is necessary, however, to determine whether such a restriction may be allowed as a derogation, on grounds of public policy, public security or public health, as expressly provided for under Articles 45 EC and 46 EC, which are applicable in the area of freedom to provide services by virtue of Article 55 EC, or justified, in accordance with the case-law of the Court, by overriding reasons in the public interest (Case C-470/11 Garkalns  [2012] ECR, paragraph 35 and the case-law cited).
23. Thus, the Court has consistently held that restrictions on betting and gaming may be justified by overriding requirements in the public interest, such as consumer protection and the prevention of both fraud and incitement to squander money on gambling ( Garkalns , paragraph 39 and the case-law cited).
24. In that regard the Court has consistently held that the legislation on games of chance 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 in order to ensure that the interests in question are protected (Case C-42/07 Liga Portuguesa de Futebol Profissional and Bwin International [2009] ECR I-7633, paragraph 57 and the case-law cited).
25. In the present case, it should be borne in mind that the declared objectives pursued by the legislation at issue in the main proceedings, namely restricting the supply of games of chance and combating criminality linked to those games by channelling them through controlled expansion, are among those recognised by the case-law as capable of justifying restrictions on fundamental freedoms in the sector of games of chance (see, to that effect, Joined Cases C-72/10 and C-77/10 Costa and Cifone  [2012] ECR, paragraph 61 and the case-law cited).
26. However, the identification of the objectives which are in fact pursued by the national legislation is, in the context of a case referred to the Court under Article 267 TFEU, within the jurisdiction of the national court (Case C-347/09 Dickinger and Ömer  [2011] ECR I-8185, paragraph 51).
27. It should also be remembered that restrictive measures imposed by Member States must satisfy the relevant conditions of proportionality and non-discrimination, as laid down in the Court’s case-law. Thus, national legislation is appropriate for ensuring attainment of the objective pursued only if it genuinely reflects a concern to attain it in a consistent and systematic manner (see, to that effect, Liga Portuguesa de Futebol Profissional and Bwin International , paragraphs 59 to 61 and the case-law cited).
28. 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 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 (Case C-176/11 HIT and HIT LARIX [2012] ECR, paragraph 25 and the case-law cited).
29. A Member State seeking to ensure a particularly high level of protection may consequently, as the Court has acknowledged in its case-law, be entitled to take the view that it is only by granting exclusive rights to a single entity which is subject to strict control by the public authorities that it can tackle the risks connected with the betting and gaming sector and pursue the objective of preventing incitement to squander money on gambling and combating addiction to gambling with sufficient effectiveness (see Case C-212/08 Zeturf  [2011] ECR I-5633, paragraph 41).
30. Provided that they comply with the abovementioned requirement of proportionality, the national public authorities may indeed legitimately consider that the fact that, in their capacity as overseer of the body holding the monopoly, they will have additional means of influencing the latter’s conduct outside the statutory regulating and monitoring mechanisms is likely to secure for them a better command over the supply of games of chance and better guarantees that implementation of their policy will be effective than in the case where those activities are carried on by private operators in a situation of competition, even if the latter are subject to a system of authorisation and a regime of supervision and penalties ( Zeturf , paragraph 42).
31. As regards the first objective, that of restricting the supply of games of chance, as referred to in paragraph 25 above, it is for the national courts to ensure, in the light, in particular, of the actual rules for applying the restrictive legislation concerned, that that legislation genuinely meets the concern to reduce opportunities for gambling and to limit activities in that domain in a consistent and systematic manner (see, to that effect, Garkalns , paragraph 44 and the case-law cited).
33. As regards the second objective, that of combating criminality linked to games of chance, it is also for the national court to determine, in the light of, inter alia, the development of the national market for games of chance, whether the State controls to which the activities of the undertaking holding the monopoly are subject are actually implemented in the consistent and systematic pursuit of the objectives sought by the establishment of the system whereby exclusive rights are conferred on such an undertaking (see, to that effect, Zeturf , paragraph 62 and the case-law cited).
34. It should be borne in mind in that regard that the effectiveness of those State controls must be assessed by the national court in the light of the fact that a measure as restrictive as a monopoly must, inter alia, be subject to strict control by the public authorities (see, to that effect, Zeturf , paragraph 58).
38. The Court has held previously in that regard that, by reason of the primacy of directly-applicable European Union law, national legislation concerning a public monopoly on games of chance which, according to the findings of a national court, comprises restrictions that are incompatible with the freedom of establishment and the freedom to provide services, because those restrictions do not contribute to limiting betting activities in a consistent and systematic manner, cannot continue to apply during a transitional period (Case C-409/06 Winner Wetten  [2010] ECR I-8015, paragraph 69).
44. It should be borne in mind that, in the specific area of the organisation of games of chance, national authorities enjoy a sufficient measure of discretion to enable them to determine what is required in order to ensure consumer protection and the preservation of order in society and – provided that the conditions laid down in the Court’s case-law are in fact met – it is for each Member State to assess whether, in the context of the legitimate aims which it pursues, it is necessary to prohibit, wholly or in part, betting and gaming or only to restrict them and, to that end, to lay down more or less strict supervisory rules ( Garkalns , paragraph 38 and the case-law cited).
45. It is also common ground that, unlike the introduction of free, undistorted competition in a traditional market, the presence of that kind of competition in the very specific market of games of chance, that is to say, between several operators authorised to run the same games of chance, is liable to have detrimental effects owing to the fact that those operators would be led to compete with each other in inventiveness in making what they offer more attractive and, in that way, increasing consumers’ expenditure on gaming and the risks of their addiction (see, to that effect, Case C-203/08 Sporting Exchange [2010] ECR I-4695, paragraph 58).
46. Accordingly, the refusal to allow a transitional period in the event of incompatibility of national legislation with Articles 43 EC and 49 EC does not necessarily lead to an obligation for the Member State concerned to liberalise the market in games of chance if it finds that such a liberalisation is incompatible with the level of consumer protection and the preservation of order in society which that Member State intends to uphold. Under European Union law as it currently stands, Member States remain free to undertake reforms of existing monopolies in order to make them compatible with Treaty provisions, inter alia by making them subject to effective and strict controls by the public authorities.
47. In any event, if the Member State concerned should find that a reform of an existing monopoly effected with a view to making it compatible with Treaty provisions is not feasible and that a liberalisation of the market in games of chance is the better measure for ensuring the level of consumer protection and the preservation of order in society which that Member State intends to uphold, it will be required to observe the fundamental rules of the Treaties, including in particular Articles 43 EC and 49 EC, the principles of equal treatment and of non-discrimination on grounds of nationality and the consequent obligation of transparency (see, to that effect, Costa and Cifone , paragraph 54 and the case-law cited). In such a case, the introduction in that Member State of an administrative permit scheme for the provision of certain types of games of chance must be based on objective, non-discriminatory criteria which are known in advance, in such a way as to circumscribe the exercise of the national authorities’ discretion so that it is not used arbitrarily (see, to that effect, Case C-46/08 Carmen Media Group [2010] ECR I-8149, paragraph 90, and Costa and Cifone , paragraph 56 and the case-law cited).