Online Games Handels GmbH and Others v Landespolizeidirektion Oberösterreich.
Date: 2017-06-14
42


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 give a ruling on a question referred by a national court for a preliminary ruling, under Article 267 TFEU, only where, for instance, the requirements concerning the content of a request for a preliminary ruling, set out in Article 94 of the Rules of Procedure of the Court of Justice, are not satisfied or where it is quite obvious that the interpretation of a provision of European Union law, or the assessment of its validity, which is sought by the national court, bears no relation to the actual facts of the main action or to its purpose or where the problem is hypothetical (judgment of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraph 50 and the case-law cited).
43


It is also 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 that court to define the factual and legal context of the questions it is asking or, at the very least, to explain the factual circumstances on which those questions are based. The order for reference must also set out the precise reasons why the national court is unsure as to the interpretation of EU law and considers it necessary to refer a question to the Court for a preliminary ruling (judgment of 18 April 2013, Mulders, C‑548/11, EU:C:2013:249, paragraph 28 and the case-law cited).
45


As regards the argument that the question is hypothetical, it is based on the assumption that the referring court erred in interpreting the national legislation. It must be borne in mind, however, that it is not for the Court to rule on the interpretation of national provisions, as such an interpretation falls within the exclusive jurisdiction of the national courts. Thus, the Court, when a question is referred to it by a national court, must base itself on the interpretation of national law as described to it by that court (see, in particular, judgment of 27 October 2009, ČEZ, C‑115/08, EU:C:2009:660, paragraph 57 and the case-law cited). Moreover, it cannot be disputed that compliance with EU law of the judgments to be delivered by the referring court depends on the answer to the question referred.
49


It is appropriate, next, to bear in mind that it follows from the judgment of 30 April 2014, Pfleger and Others (C‑390/12, EU:C:2014:281), that Article 56 TFEU precludes national legislation which prohibits the operation of gaming machines in the absence of the prior authorisation of the administrative authorities, where that legislation does not actually pursue the purported objective of 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 (see, to that effect, judgment of 30 April 2014, Pfleger and Others, C‑390/12, EU:C:2014:281, paragraph 56).
50


In that regard, the Court has held that it is the competent authorities of the Member State wishing to rely on an objective capable of justifying a restriction of the freedom to provide services which must supply the national 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 laid down by the Court of Justice to be able to be regarded as justified (see, to that effect, judgment of 30 April 2014, Pfleger and Others, C‑390/12, EU:C:2014:281, paragraph 50 and the case-law cited).
51


It is subsequently for that national court to determine the objectives actually pursued by the national legislation at issue and whether the restrictions imposed by that legislation satisfy the conditions laid down in the Court’s case-law as regards their proportionality. 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 (judgment of 30 April 2014, Pfleger and Others, C‑390/12, EU:C:2014:281, paragraphs 47 to 49 and the case-law cited).
52


The Court has stated that the national court must carry out a global assessment of the circumstances in which restrictive legislation was adopted and implemented (judgment of 30 April 2014, Pfleger and Others, C‑390/12, EU:C:2014:281, paragraph 52).
53


Moreover, in a review of proportionality, the approach taken by the national court must be dynamic rather than static in the sense that it must take account of the way in which circumstances have developed following the adoption of the legislation concerned (judgment of 30 June 2016, Admiral Casinos & Entertainment, C‑464/15, EU:C:2016:500, paragraph 36).
54


Next, it should be recalled that, according to settled case-law, under the principle of sincere cooperation laid down in Article 4(3) TEU, it is for the courts of the Member States to ensure judicial protection of a person’s rights under EU law. In addition, Article 19(1) TEU requires Member States to provide remedies sufficient to ensure effective legal protection, within the meaning in particular of Article 47 of the Charter, in the fields covered by EU law (see, to that effect, judgment of 8 November 2016, Lesoochranárske zoskupenie VLK, C‑243/15, EU:C:2016:838, paragraph 50 and the case-law cited).
55


The scope of Article 47 of the Charter, in so far as the action of the Member States is concerned, is defined in Article 51(1) thereof, according to which the provisions of the Charter are addressed to the Member States when they are implementing EU law. That provision confirms the Court’s settled case-law, which states 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 (judgment of 8 November 2016, Lesoochranárske zoskupenie VLK, C‑243/15, EU:C:2016:838, paragraph 51).
59


Although the obligations on national courts, as regards examining the justification for legislation which restricts a fundamental freedom of the Union, have accordingly been defined by the case-law of the Court, it is for the domestic legal system of each Member State to regulate the procedural rules governing actions for the protection of the rights which individuals derive from EU law. In the absence of EU legislation, the Member States have the responsibility for ensuring that those rights are effectively protected in each case and, in particular, for ensuring compliance with the right to an effective remedy and to a fair hearing enshrined in Article 47 of the Charter (see, to that effect, judgment of 8 November 2016, Lesoochranárske zoskupenie VLK, C‑243/15, EU:C:2016:838, paragraph 65).
60


As regards the right to an independent and impartial tribunal set out in the second paragraph of Article 47 of the Charter, the concept of ‘independence’, which is inherent in the court’s task, has two aspects. The first aspect, which is external, entails that the body is protected against external intervention or pressure liable to jeopardise the independent judgment of its members as regards proceedings before them (judgment of 9 October 2014, TDC, C‑222/13, EU:C:2014:2265, paragraph 30 and the case-law cited).
61


The second aspect, which is internal, is linked to ‘impartiality’ and seeks to ensure a level playing field for the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings. That aspect, which the referring court fears is not complied with in the present case, requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law (judgment of 9 October 2014, TDC, C‑222/13, EU:C:2014:2265, paragraph 31 and the case-law cited).
62


Those guarantees of independence and impartiality require rules, particularly statutory and procedural rules, in order to dismiss any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it (see, to that effect, judgment of 9 October 2014, TDC, C‑222/13, EU:C:2014:2265, paragraph 32 and the case-law cited).
65


As regards the question of the link between the requirement under national law for national courts to examine of their own motion the facts of the cases before them and the judgment of 30 April 2014, Pfleger and Others (C‑390/12, EU:C:2014:281), it has been reiterated, in paragraphs 50 to 52 of the present judgment, that under EU law it is for those courts to carry out a global assessment of the circumstances in which restrictive legislation was adopted and implemented on the basis of the evidence provided by the competent authorities of the Member State, seeking to demonstrate the existence of objectives capable of justifying a restriction of a fundamental freedom guaranteed by the FEU Treaty and its proportionality.
66


While those courts may be required, under national procedural rules, to take the necessary measures in order to encourage the production of such evidence, they cannot, in contrast, be required, as was pointed out by the Advocate General in points 51 to 56 and 68 of her Opinion, to substitute themselves for those authorities in setting out the justifications which, according to the judgment of 30 April 2014, Pfleger and Others (C‑390/12, EU:C:2014:281), it is the duty of the latter to provide. Should such justifications not be provided through absence or passivity of those authorities, the national courts must be able to draw all inferences which result from such failure.
67


In the light of the foregoing considerations, the answer to the question referred is that Articles 49 and 56 TFEU, as interpreted in particular in the judgment of 30 April 2014, Pfleger and Others (C‑390/12, EU:C:2014:281), read in light of Article 47 of the Charter, must be interpreted as not precluding a national procedural system according to which, in administrative offence proceedings, the court called upon to rule on the compliance with EU law of legislation restricting the exercise of a fundamental freedom of the European Union, such as the freedom of establishment or the freedom to provide services within the Union, is required to examine of its own motion the facts of the case before it in the context of examining whether administrative offences arise, provided that such a system does not have the consequence that that court is required to substitute itself for the competent authorities of the Member State concerned, whose task it is to provide the evidence necessary to enable that court to determine whether that restriction is justified.