Fortuna sp. z o.o. and Others v Dyrektor Izby Celnej w Gdyni.
Date: 2012-07-19
24. A preliminary point to note is that the Court has already held that measures which prohibit the use of all electrical, electromechanical and electronic games on all public and private premises apart from casinos must be considered to be technical regulations within the meaning of Article 1(11) of Directive 98/34 (Case C-65/05 Commission  v Greece  [2006] ECR I-10341, paragraph 61).
26. Following that preliminary point, it should be noted that it is settled case-law that Directive 98/34 is designed to protect, by means of preventive monitoring, the free movement of goods, which is one of the foundations of the European Union, and that this control serves a useful purpose in that technical regulations falling within the scope of that directive may constitute obstacles to trade in goods between Member States, such obstacles being permissible only if they are necessary to satisfy compelling requirements relating to the public interest (see Case C-194/94 CIA Security International [1996] ECR I-2201, paragraphs 40 and 48; Case C-303/04 Lidl Italia  [2005] ECR I-7865, paragraph 22; and Case C-361/10 Intercommunale Intermosane and Fédération de l’industrie et du gaz  [2011] ECR I-5079, paragraph 10).
27. In this context, it should be recalled that, according to the Court’s case-law, it follows from Article 1(11) of Directive 98/34 that the concept of ‘technical regulation’ covers – apart from the category of rules on information society services within the meaning of Article 1(2) and (5) of that directive, a category which is not, however, affected by the main proceedings given that the national provisions at issue in those cases relate to low-prize gaming machines as ‘products’ within the meaning of Article 1(1) – three categories, namely (i) the ‘technical specification’ within the meaning of Article 1(3) of the directive, (ii) ‘other requirements’, as defined in Article 1(4) of the directive, and (iii) the prohibition of the manufacture, importation, marketing or use of a product, referred to in Article 1(11) of the directive (see Case C-267/03 Lindberg  [2005] ECR I-3247, paragraph 54; Case C-20/05 Schwibbert  [2007] ECR I-9447, paragraph 34; and Intercommunale Intermosane and Fédération de l’industrie et du gaz , paragraph 11).
28. First of all, in order for a national measure to fall within the first category of technical regulations that is referred to in Article 1(11) of Directive 98/34, that is to say, within the concept of ‘technical specification’, that measure must necessarily refer to the product or its packaging as such and thus lay down one of the characteristics required of a product (see Intercommunale Intermosane and Fédération de l’industrie et du gaz , paragraph 15).
31. Next, it is apparent from the Court’s case-law that the third category of technical regulations that is referred to in Article 1(11) of Directive 98/34, concerning a prohibition inter alia on use, requires the national provisions at issue to have a scope which goes well beyond a limitation to certain possible uses of the product in question and not to be confined to a mere restriction of its use (see Lindberg , paragraph 76).
32. Indeed, this third category is particularly intended to cover national measures which leave no room for any use which can reasonably be made of the product concerned other than a purely marginal one ( Lindberg , paragraph 77).
35. Finally, the Court has held that, in order to be classified as ‘other requirements’ within the meaning of Article 1(4) of Directive 98/34, the national measures in question must constitute ‘conditions’ which can significantly influence the composition, the nature or the marketing of the product concerned (see, to this effect, Lindberg , paragraph 72, and Intercommunale Intermosane and Fédération de l’industrie et du gaz , paragraph 20).
36. In that regard, it is to be observed that the transitional provisions in the Law on games of chance impose conditions liable to affect the marketing of low-prize gaming machines. The prohibition on issuing, extending or amending authorisations for activity relating to gaming on low-prize machines outside casinos is such as to directly affect trade in low-prize gaming machines.
37. In that context, it is for the referring court to verify whether such prohibitions, the observance of which is compulsory de jure  for the use of low-prize gaming machines, can significantly influence the nature or the marketing of those machines (see, to this effect, Lindberg , paragraph 78).
39. Also, the referring court will have to verify whether the low-prize gaming machines are capable of being programmed or reprogrammed in order to be used in casinos as gaming machines that would allow higher prizes and consequently present a greater risk of addiction of the user to gaming (see, to this effect, Lindberg , paragraph 79), which could significantly affect their nature.
40. In the light of all the foregoing, the answer to the questions referred is that Article 1(11) of Directive 98/34 must be interpreted as meaning that national provisions, such as those of the Law on games of chance, which could have the effect of limiting, or even gradually rendering impossible, the running of gaming on low-prize machines anywhere other than in casinos and gaming arcades are capable of constituting ‘technical regulations’, within the meaning of that provision, the drafts of which must be the subject of communication as provided for in the first subparagraph of Article 8(1) of the directive, in so far as it is established that those provisions constitute conditions which can significantly influence the nature or the marketing of the product concerned, which is a matter for the referring court to determine.
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