Robert Pfleger and Others.
Date: 2014-04-30
21. In that regard, it is true that, as regards the interpretation of Article 56 TFEU, where all the facts in the proceedings are confined within a single Member State, it is necessary to ascertain whether the Court has jurisdiction to give a ruling on that provision (see, to that effect, Joined Cases C‑357/10 to C‑359/10 Duomo Gpa and Others EU:C:2012:283, paragraph 25 and the case-law cited).
26. In that regard, it should be noted that, according to settled case law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (Joined Cases C‑188/10 and C‑189/10 Melki and Abdeli EU:C:2010:363, paragraph 27 and the case-law cited).
27. It is also apparent from settled case-law that the need to provide an interpretation of EU law which will be of use to the national court makes it necessary for the national court to define the factual and legal context of the questions it is asking or, at the very least, to explain the assumptions of fact on which those questions are based. The order for reference must, moreover, set out the precise reasons why the national court is unsure as to the interpretation of EU law and finds it necessary to refer a question to the Court for a preliminary ruling (Case C‑548/11 Mulders EU:C:2013:249, paragraph 28 and the case-law cited).
31. It should be recalled in this respect that the Charter’s field of application so far as concerns action of the Member States is defined in Article 51(1) of the Charter, according to which its provisions are addressed to the Member States only when they are implementing EU law (Case C 617/10 Åkerberg Fransson  EU:C:2013:105, paragraph 17).
32. That article of the Charter thus confirms the Court’s case-law relating to the extent to which actions of the Member States must comply with the requirements flowing from the fundamental rights guaranteed in the legal order of the European Union ( Åkerberg Fransson EU:C:2013:105, paragraph 18).
33. The Court’s settled case-law indeed states, in essence, that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations. In this respect the Court has already observed that it has no power to examine the compatibility with the Charter of national legislation lying outside the scope of EU law. On the other hand, if such legislation falls within the scope of EU law, the Court, when requested to give a preliminary ruling, must provide all the guidance as to interpretation needed in order for the national court to determine whether that legislation is compatible with the fundamental rights the observance of which the Court ensures ( Åkerberg Fransson EU:C:2013:105, paragraph 19).
34. Since the fundamental rights guaranteed by the Charter must therefore be complied with where national legislation falls within the scope of EU law, situations cannot exist which are covered in that way by EU law without those fundamental rights being applicable. The applicability of EU law entails applicability of the fundamental rights guaranteed by the Charter ( Åkerberg Fransson EU:C:2013:105, paragraph 21).
35. In that regard, the Court has already held that, where a Member State relies on overriding requirements in the public interest in order to justify rules which are liable to obstruct the exercise of the freedom to provide services, such justification, provided for by EU law, must be interpreted in the light of the general principles of EU law, in particular the fundamental rights henceforth guaranteed by the Charter. Thus the national rules in question can fall under the exceptions provided for only if they are compatible with the fundamental rights the observance of which is ensured by the Court (see, to that effect, Case C‑260/89 ERT EU:C:1991:254, paragraph 43).
36. As follows from that case-law, where it is apparent that national legislation is such as to obstruct the exercise of one or more fundamental freedoms guaranteed by the Treaty, it may benefit from the exceptions provided for by EU law in order to justify that fact only in so far as that complies with the fundamental rights enforced by the Court. That obligation to comply with fundamental rights manifestly comes within the scope of EU law and, consequently, within that of the Charter. The use by a Member State of exceptions provided for by EU law in order to justify an obstruction of a fundamental freedom guaranteed by the Treaty must, therefore, be regarded, as the Advocate General states in point 46 of her Opinion, as ‘implementing Union law’ within the meaning of Article 51(1) of the Charter.
39. Legislation of a Member State, such as that at issue in the main proceedings, which prohibits the operation of gaming machines in the absence of the prior authorisation of the administrative authorities constitutes a restriction of the freedom to provide services guaranteed by Article 56 TFEU (see, to that effect, inter alia, Joined Cases C‑338/04, C‑359/04 and C‑360/04 Placanica and Others EU:C:2007:133, paragraph 42).
40. It must, however, be determined whether such a restriction may be allowed as a derogation, on grounds of public policy, public security or public health, as expressly provided for in Articles 51 TFEU and 52 TFEU, which are also applicable in the area of freedom to provide services by virtue of Article 62 TFEU, or justified, in accordance with the case-law of the Court, by overriding reasons in the public interest (Case C‑470/11 Garkalns EU:C:2012:505, paragraph 35 and the case-law cited).
41. According to the Court’s established case-law, restrictions on games of chance 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 (see, to that effect, Carmen Media Group EU:C:2010:505, paragraph 55 and the case-law cited).
42. In the present case, with regard to the declared objectives pursued by the Austrian legislation at issue in the main proceedings, namely the protection of gamblers by restricting the supply of games of chance and the fight against crime connected with those games by channelling them through controlled expansion, it should be noted that they are among those recognised by the Court’s 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 EU:C:2012:80, paragraph 61 and the case-law cited).
43. In addition, it should be recalled that the restrictions imposed by the 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 guaranteeing 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, Case C‑42/07 Liga Portuguesa de Futebol Profissional and Bwin International EU:C:2009:519, paragraphs 59 to 61 and the case-law cited).
44. 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 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 EU:C:2012:454, paragraph 25 and the case-law cited).
45. 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 betting and gaming wholly or in part or only to restrict them and, to that end, to lay down more or less strict supervisory rules (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 EU:C:2010:504, paragraph 76, and Carmen Media Group EU:C:2010:505, paragraph 46).
46. Furthermore, it is not disputed 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 to make what they offer more attractive than what their competitors offer, and thereby to increase consumers’ expenditure on gaming and the risks of their addiction (Joined Cases C‑186/11 and C‑209/11 Stanleybet International and Others EU:C:2013:33, paragraph 45).
47. However, the identification of the objectives 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 referring court (see, to that effect, Dickinger and Ömer EU:C:2011:582, paragraph 51).
48. It is also for the referring court, while taking account of the information provided by the Court, to determine whether the restrictions imposed by the Member State concerned satisfy the conditions laid down in the Court’s case-law as regards their proportionality (see Dickinger and Ömer EU:C:2011:582, paragraph 50).
49. In particular, it is for that court to satisfy itself, having regard inter alia to the actual rules for applying the restrictive legislation concerned, that the legislation genuinely meets the concern to reduce opportunities for gambling, to limit activities in that area and to fight gambling-related crime in a consistent and systematic manner (see Dickinger and Ömer EU:C:2011:582, paragraphs 50 and 56).
50. In that regard, the Court has previously held that it is the Member State wishing to rely on an objective capable of justifying the restriction of the freedom to provide services which must supply the court called on to rule on that question with all the evidence of such a kind as to enable the court to be satisfied that the measure does indeed comply with the requirements deriving from the principle of proportionality (see Dickinger and Ömer EU:C:2011:582, paragraph 54 and the case-law cited).
51. It cannot, however, be inferred from that case-law that a Member State is deprived of the possibility of establishing that an internal restrictive measure satisfies those requirements, solely on the ground that that Member State is not able to produce studies serving as the basis for the adoption of the legislation at issue (see, to that effect, Stoß and Others EU:C:2010:504, paragraph 72).
52. Accordingly, the national court must carry out a global assessment of the circumstances in which restrictive legislation, such as that at issue in the main proceedings, was adopted and implemented.
54. That court appears, in addition, to consider that the real purpose of the restrictive system at issue is not the fight against crime and the protection of gamblers, but a mere increase of State tax revenue, whereas, as the Court has already held, the mere aim of increasing public tax revenue cannot allow such a restriction of freedom to provide services (see Dickinger and Ömer EU:C:2011:582, paragraph 55). In any event, that system appears to be disproportionate, since it is not appropriate for the purpose of guaranteeing the consistency required by the Court’s case-law and goes beyond what is necessary in order to attain the declared objectives pursued.
56. In the light of all of the foregoing, the answer to the first question is that Article 56 TFEU must be interpreted as precluding national legislation, such as that at issue in the main proceedings, where that legislation does not actually pursue the objective o f protecting gamblers or fighting crime and does not genuinely meet the concern to reduce opportunities for gambling or to fight gambling-related crime in a consistent and systematic manner.
– Examination under Articles 15 to 17 of the Charter
57. National legislation that is restrictive from the point of view of Article 56 TFEU, such as that at issue in the main proceedings, is also capable of limiting the freedom to choose an occupation, the freedom to conduct a business and the right to property enshrined in Articles 15 to 17 of the Charter.
59. As the Advocate General states in points 63 to 70 of her Opinion, in circumstances such as those at issue in the main proceedings, an unjustified or disproportionate restriction of the freedom to provide services under Article 56 TFEU is also not permitted under Article 52(1) of the Charter in relation to Articles 15 to 17 of the Charter.
60. It follows that, in the present case, an examination of the restriction represented by the national legislation at issue in the main proceedings from the point of view of Article 56 TFEU covers also possible limitations of the exercise of the rights and freedoms provided for in Articles 15 to 17 of the Charter, so that a separate examination is not necessary.
Questions 2 and 3
64. In the context of the main proceedings, it should be emphasised that, where a restrictive system has been established for games of chance and that system is incompatible with Article 56 TFEU, an infringement of the system by an economic operator cannot give rise to penalties (see, to that effect, Placanica and Others EU:C:2007:133, paragraphs 63 and 69, and Dickinger and Ömer EU:C:2011:582, paragraph 43).
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