Digibet Ltd and Gert Albers v Westdeutsche Lotterie GmbH & Co. OHG.
Date: 2014-06-12
15. The Bundesgerichtshof takes the view that, given the legislative amendments since 1 January 2012 in the Land  Schleswig-Holstein, it is conceivable that the appeal on a point of law might be upheld on the basis of an infringement of the freedom to provide services enshrined in EU law. It recalls that, according to the case-law of the Court, the exceptions and restrictions on legislation limiting gaming must be subject to a check for consistency in order to ascertain whether they affect the ability of that legislation to achieve the legitimate objectives of public interest that it pursues (see Case C‑46/08 Carmen Media Group EU:C:2010:505, paragraph 106 et seq . ). In that context, the different legal position in one Land  as compared with the others could result in the restrictions on marketing and advertising of games of chance on the internet in the other Länder  being inapplicable on account of an infringement of EU law, so that a ban on the facilitation and organisation of games of chance on-line would be without foundation.
16. In the opinion of that court, it would however be inappropriate and inconsistent with the principle of proportionality to prevent all the other Länder  from exercising a prerogative granted to them by EU law to decide themselves whether it is appropriate to ban certain gaming activities wholly or in part, or whether it is sufficient to restrict those activities and to lay down more or less strict supervisory rules for that purpose (see Carmen Media Group  EU:C:2010:505, paragraph 58), simply on the ground that a single Land  wishes to introduce a derogation. In that connection, the referring court states that, under the Federal Constitution, a Land  cannot be required either by the Federal State or by the other Länder , to adopt specific legislation in an area falling within the competence of the Länder .
21. It is not disputed that legislation of a Member State such as that at issue in the main proceedings, which, in principle, prohibits the advertising, organisation and facilitation of games of chance via the internet, constitutes a restriction on the freedom to provide services guaranteed by Article 56 TFEU (see 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 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 51 TFEU and Article 52 TFEU, which are 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 Joined Cases C‑186/11 and C‑209/11 Stanleybet International and Others  EU:C:2013:33, paragraph 22 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 , EU:C:2012:505, paragraph 39, and Stanleybet International and Others , EU:C:2013:33, paragraph 23 and the case-law cited).
24. In that context, the Court has repeatedly stated 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 harmonisation in the field at EU level, 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  EU:C:2009:519, paragraph 57, and Stanleybet International and Others , EU:C:2013:33, paragraph 24 and the case-law cited), the identification of the objectives which are in fact pursued by the national legislation falls, 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  EU:C:2011:582, paragraph 51, and Stanleybet International and Others , EU:C:2013:33, paragraph 26).
28. Digibet, Mr Albers and the Maltese Government argue that the lack of consistency in the German legislation at issue in the main proceedings may be inferred in particular from a reading of paragraphs 69 and 70 of the judgment in Carmen Media Group (EU:C:2010:505), according to which the authorities in the Land  concerned and the Federal authorities are jointly required to fulfil the obligation on the Federal Republic of Germany not to infringe Article 56 TFEU so that they are under a duty to coordinate the exercise of their respective competences.
29. Furthermore, by referring to the federal structure of the Federal Republic of Germany, they rely on paragraph 61 of the judgment in Case C-409/06 Winner Wetten (EU:C:2010:503), according to which rules of national law, even of a constitutional order, cannot be allowed to undermine the unity and effectiveness of EU law.
31. In that connection, first of all, the particular nature of the gambling sector must be mentioned, where, unlike the establishment 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 a detrimental effect owing to the fact that those operators would be led to compete with each other in inventiveness in making what they offer more attractive than their competitors and, in that way, increasing consumers’ expenditure on gaming and the risks of their addiction (see, Stanleybet International and Others , EU:C:2013:33, paragraph 45).
32. Therefore, and for the reasons set out in paragraph 24 of the present judgment, in the specific area of the organisation of games of chance, national authorities enjoy a wide measure of discretion which enables 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 (see, to that effect, Dickinger and Ömer , EU:C:2011:582, paragraph 99, and Stanleybet International and Others , EU:C:2013:33, paragraph 44).
33. Next, it should be recalled that, when provisions of the Treaties or of regulations confer powers or impose obligations upon the Member States for the purposes of the implementation of EU law, the question of how the exercise of such powers and the fulfilment of such obligations may be entrusted by Member States to specific national bodies is solely a matter for the constitutional system of each State (Case C-428/07 Horvath , EU:C:2009:458, paragraph 49). The Court has, moreover, already held that, in a State such as the Federal Republic of Germany, the legislature may take the view that, in the interests of all the persons concerned, it is for the Länder rather than the Federal authorities to adopt certain legislative measures (see, to that effect, Joined Cases C-159/10 and C-160/10 Fuchs and Köhler , EU:C:2011:508, paragraph 55).
34. In the present case, the division of competences between the Länder  cannot be called into question, since it benefits from the protection conferred by Article 4(2) TEU, according to which the Union must respect national identities, inherent in their fundamental structures, political and constitutional, including regional and local self-government.
40. In any event, it must be recalled that it is for the referring court, taking account of the indications given by the Court, to verify whether the restrictions imposed by the Member State concerned satisfy the conditions laid down in the Court’s case-law concerning their proportionality (see Dickinger and Ömer , EU:C:2011:582, paragraph 50).