Sporting Odds Limited v Nemzeti Adó- és Vámhivatal Központi Irányítása.
Date: 2018-02-28
20


First, it must be recalled 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 European Union 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 (judgment of 8 September 2009, Liga Portuguesa de Futebol Profissional and Bwin International, C‑42/07, EU:C:2009:519, paragraph 57 and the case-law cited).
21


Next, it is common ground that, in the context of legislation which is compatible with the FEU Treaty, the choice of methods for organising and controlling the operation and playing of games of chance or gambling falls within the margin of discretion which the national authorities enjoy (see, to that effect, judgment of 8 September 2010, Carmen Media Group, C‑46/08, EU:C:2010:505, paragraph 59).
22


Finally, the Court has held that, in the matter of games of chance, it is in principle necessary to examine separately for each of the restrictions imposed by the national legislation whether, in particular, it is suitable for achieving the objective or objectives invoked by the Member State concerned and whether it does not go beyond what is necessary in order to achieve those objectives (judgment of 8 September 2010, Carmen Media Group, C‑46/08, EU:C:2010:505, paragraph 60).
23


Thus, it is clear from settled case-law that the fact that some types of games of chance are subject to a public monopoly whilst others are subject to a system of authorisations granted to private operators cannot, in itself, deprive of justification, having regard to the legitimate aims which they pursue, measures which, like the public monopoly, appear at first sight to be the most restrictive and the most effective. Such a divergence in legal regimes is not, in itself, capable of affecting the suitability of such a public monopoly for achieving the objective of preventing citizens from being incited to squander money on gambling and of combating addiction to the latter, for which it was established (judgment of 8 September 2010, Carmen Media Group, C‑46/08, EU:C:2010:505, paragraph 63).
24


However, a system of dual organisation of the market for games of chance may be contrary to Article 56 TFEU if it is found that the competent authorities pursue policies seeking to encourage participation in games of chance other than those covered by the State monopoly rather than to reduce opportunities for gambling and to limit activities in that area in a consistent and systematic manner so that the aim of preventing incitement to squander money on gambling and of combating addiction to the latter, which was at the root of the establishment of the said monopoly, can no longer be effectively pursued by means of the monopoly (see, to that effect, judgment of 8 September 2010, Carmen Media Group, C‑46/08, EU:C:2010:505, paragraph 68).
28


In that connection, while it is common ground that the objective of maximising public revenue alone cannot permit a restriction of the freedom to provide services, the fact that a restriction on gambling activities incidentally benefits the budget of the Member State concerned does not prevent that restriction from being justified in so far as it actually pursues objectives relating to overriding reasons in the public interest (see, to that effect, judgment of 11 June 2015, Berlington Hungary and Others, C‑98/14, EU:C:2015:386, paragraphs 60 and 61).
29


Furthermore, as regards the policy of liberalising certain types of games of chance, which may be part of the controlled expansion of games of chance, the Court has held that such a policy may be consistent both with the objective of preventing the use of gambling activities for criminal or fraudulent purposes and with that of preventing incitement to squander money on gambling and of combating addiction to gambling, by directing consumers towards the offer emanating from authorised operators, that offer being deemed to be protected from criminal elements and also designed to safeguard consumers more effectively against squandering of money and addiction to gambling (judgment of 11 June 2015, Berlington Hungary and Others, C‑98/14, EU:C:2015:386, paragraph 69 and the case-law cited).
30


In order to achieve that objective of channelling into controlled circuits, the authorised operators must provide a reliable, but at the same time attractive, alternative to a prohibited activity, which may necessitate, inter alia, the use of new distribution techniques (judgment of 11 June 2015, Berlington Hungary and Others, C‑98/14, EU:C:2015:386, paragraph 70 and the case-law cited).
31


However, a policy of controlled expansion of gambling activities can only be regarded as being consistent if, first, criminal and fraudulent activities linked to gambling and, secondly, addiction to gambling could have been a problem in Hungary at the material time and if the expansion of authorised and regulated activities could have solved that problem (judgment of 11 June 2015, Berlington Hungary and Others, C‑98/14, EU:C:2015:386, paragraph 71 and the case-law cited).
32


It is for the referring court to determine, in the context of the case before it, whether those conditions are satisfied and, if applicable, whether the expansion in question is on such a scale as to make it impossible to reconcile with the objective of curbing addiction to gambling (judgment of 11 June 2015, Berlington Hungary and Others, C‑98/14, EU:C:2015:386, paragraph 72 and the case-law cited).
33


Having regard to the foregoing considerations, the answer to Questions 1 to 4 is that Article 56 TFEU must be interpreted as meaning that it does not, in principle, preclude a dual system of organisation of the market for games of chance under which certain types of those games fall within the State monopoly system, while others fall within the system of concessions and licences for the organisation of games of chance, if the referring court establishes that the rules restricting the freedom to provide services in fact pursues in a consistent and systematic manner the objectives relied on by the Member State concerned.
35


In order to answer that question, it should be born in mind that the freedom to provide services entails, inter alia, the abolition of any discrimination against a person providing services on account of his nationality or the fact that he is established in a Member State other than the one in which the service is provided. The requirement that an undertaking create a permanent establishment or branch in the Member State in which the services are provided runs directly counter to the freedom to provide services since it renders impossible the provision of services, in that Member State, by undertakings established in other Member States (judgment of 21 January 2010, Commission v Germany, C‑546/07, EU:C:2010:25, paragraph 39 and the case-law cited).
36


Although the Court has held that Article 56 TFEU does not preclude national legislation which prohibits operators established in other Member States where they legally provide similar services from offering online casino games on the territory a Member State (see, to that effect, judgment of 8 September 209, Liga Portuguesa de Futebol Profissional and Bwin International, C‑42/07, EU:C:2009:519, paragraph 73), it must be recalled that the national law examined in the case which gave rise to that judgment introduced a monopoly over games of chance giving exclusive rights to operate games to a body under the actual supervision of the State.
38


In that connection, the Court has consistently held that a system of concessions and licences for the organisation 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 (judgment of 22 June 2017, Unibet International, C‑49/16, EU:C:2017:491, paragraph 41 and the case-law cited).
39


Therefore, a restriction such as that which has been found to exist in the present case is discriminatory. It is compatible with European Union law only if it is covered by an express derogating provision, such as Article 52 TFEU, namely public policy, public security or public health (judgment of 9 September 2010, Engelmann, C‑64/08, EU:C:2010:506, paragraph 34 and the case-law cited).
41


Although it is common ground that, because of the lack of direct contact between consumer and operator, games of chance accessible via the internet involve different and more substantial risks of fraud by operators against consumers compared with the traditional markets for such games (judgment of 8 September 2009, Liga Portuguesa de FutebolProfissional and Bwin International, C‑42/07, EU:C:2009:519, paragraph 70), the provision at issue must nevertheless satisfy the conditions laid down in the case-law of the Court as regards their proportionality (see, to that effect, judgment of 6 March 2007, Placanica and Others, C‑338/04, C‑359/04 and C‑360/04, EU:C:2007:133, paragraph 48).
42


More precisely, if a restriction, such as that at issue in the main proceedings is to be accepted, according to which an operator of online casino games must obtain a concession for a casino situated in Hungary in order to offer online games of chance, it must be shown that it constitutes a condition which is indispensable for attaining the objective pursued (see, to that effect, judgment of 9 July 1997, Parodi, C‑222/95, EU:C:1997:345, paragraph 31and the case-law cited).
53


In that connection, it has been established that it is for the national 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 (see, to that effect, judgment of 14 June 2017, Online Games and Others, C‑685/15, EU:C:2017:452, paragraph 65).
54


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 to substitute themselves for those authorities in setting out the justifications which 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 (judgment of 14 June 2017, Online Games and Others, C‑685/15, EU:C:2017:452, paragraph 66).
55


Furthermore, the Court has held that EU law does not preclude a national system according to which 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 is required to examine of its own motion the facts of the case before it, 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 (judgment of 14 June 2017, Online Games and Others, C‑685/15, EU:C:2017:452, paragraph 67).
62


In that regard, it should be borne in mind 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 (judgment of 30 April 2014, Pfleger and Others, C‑390/12, EU:C:2014:281, paragraph 50 and the case-law cited).
63


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 (judgment of 30 April 2014, Pfleger and Others, C‑390/12, EU:C:2014:281, paragraph 51 and the case-law cited).
64


It is for the national court to 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 (judgment of 30 April 2014, Pfleger and Others, C‑390/12, EU:C:2014:281, paragraph 52) and not to state solely that a preliminary study of the effects of legislation has not been carried out.
67


In that connection, it suffices to state 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 (judgment of 22 June 2017, Unibet International, C‑49/16, EU:C:2017:491, paragraph 50 and the case-law cited).