Criminal proceedings against Bent Falbert and Others.
Date: 2017-12-20
16


It should be remembered in that regard that, according to settled case-law, national provisions that merely lay down the conditions governing the establishment or provisions of services by undertakings, such as provisions making the exercise of a business activity subject to prior authorisation do not constitute technical regulations within the meaning of Article 1(11) of Directive 98/34 (see, to that effect, inter alia, judgments of 4 February 2016, Ince, C‑336/14, EU:C:2016:72, paragraph 76, and 1 February 2017, Município de Palmela, C‑144/16, EU:C:2017:76, paragraph 26).
19


As to the question whether Paragraph 10(3)(3) of the Law on gaming, which provides for sanctions for the advertising of services for unauthorised games of chance, constitutes a ‘technical regulation’ within the meaning of Article 1 of Directive 98/34, subject to the notification obligation under Article 8(1) of that directive, it should be noted first of all that although there is a close connection between Paragraph 10(1) point 1, of the Law on gaming, providing for sanctions for the marketing of games of chance without prior authorisation, and Paragraph 10(3)(3) of the Law on gaming, providing for sanctions for activities marketing unauthorised games of chance, it does not automatically follow that the latter provision must be held to be a provision making the exercise of a business activity subject to prior authorisation as interpreted in the case-law referred to in paragraph 16 of this judgment. Although there is a close connection between such provisions, they differ in function and scope (see, to that effect, judgment of 13 October 2016, M. and S., C‑303/15, EU:C:2016:771, paragraph 28).
21


It should be noted in that regard, firstly, that the question whether the prohibition on advertising of unauthorised games, as provided for in Paragraph 10(3)(3) of the Law on gaming, in particular with regards to online games of chance offered by non-Danish gaming operators, was already provided for by the earlier rules on gaming, with the result that the question whether the amending legislation merely clarified that prohibition or whether instead the prohibition was introduced in the Law on gaming by the amending legislation, is a question of national law falling within the jurisdiction of the referring court (see, to that effect, judgment of 21 April 2005, Lindberg, C‑267/03, EU:C:2005:246, paragraph 83).
23


In order for new national legislation to be held to be a technical regulation having to be notified under Directive 98/34, it must not be limited to reproducing or replacing, without adding technical specifications or other new or additional requirements, existing technical regulations which have been duly notified to the Commission (see, to that effect, judgment of 21 April 2005, Lindberg, C‑267/03, EU:C:2005:246, paragraph 85).
25


It must be noted in that context that the concept of a ‘technical regulation’ extends to four categories of measures, namely, (i) the ‘technical specification’, within the meaning of Article 1(3) of Directive 98/34; (ii) ‘other requirements’, as defined in Article 1(4) of that directive; (iii) the ‘rule on services’, covered in Article 1(5) of that directive; and (iv) the ‘laws, regulations or administrative provisions of Member States prohibiting the manufacture, importation, marketing or use of a product or prohibiting the provision or use of a service, or establishment as a service provider’, under Article 1(11) of that directive (judgments of 4 February 2016, Ince, C‑336/14, EU:C:2016:72, paragraph 70, and 13 October 2016, M. and S., C‑303/15, EU:C:2016:771, paragraph 18).
27


It should be borne in mind that, under Article 1(2) of that directive, the concept of a ‘technical regulation’ covers solely regulations relating to information society services, that is, any service provided at a distance by electronic means and at the individual request of a recipient of services (see judgments of 13 October 2016, M. and S., C‑303/15, EU:C:2016:771, paragraph 21, and 1 February 2017, Município de Palmela, C‑144/16, EU:C:2017:76, paragraph 28).
32


It should be noted in that regard, firstly, that under the first indent of Article 1(5) of Directive 98/34, the question whether a rule is aimed specifically at information society services must be determined in the light of both the stated reasons and the wording of the rule. Under that same provision, moreover, it is not required that ‘the specific aim and object’ of all of the rule in question be to regulate information society services, as it is sufficient that the rule pursue that aim or object in certain of its provisions.
33


Consequently, if it is not apparent solely from the wording of a national rule that it is aimed, at least in part, at regulating specifically information society services – such as in the present case, where the wording does not draw any distinction between services provided offline and services provided online – that object may nevertheless be gleaned quite readily from the stated reasons given for the rule – again as in the present case under the relevant national rules of interpretation, which allow for inter alia the travaux préparatoires for the rule to provide guidance.
34


Secondly, as observed by the Advocate General in point 63 of his Opinion, it is apparent from recitals 7 and 8 of Directive 98/48, by which Directive 98/34 was amended, that the object was to adapt existing national legislation to take account of new information society services and avoid restrictions on the freedom to provide services and freedom of establishment leading to ‘refragmentation of the internal market’.
35


It would, however, run counter to that objective to exclude a rule, in respect of which the travaux préparatoires stated clearly that its aim and object were to extend an existing rule in order to cover information society services, from classification as a rule aimed specifically at such services within the meaning of Article 1(5) of Directive 98/34 on the sole ground that the operative part of that rule makes no express reference to those services but instead covers them through a broader definition of services covering both services provided online and services provided offline.