SIA Garkalns v Rīgas dome.
Date: 2012-07-19
17. In that regard, it should be recalled that, according to settled case-law, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling (Case C-169/07 Hartlauer  [2009] ECR I-1721, paragraph 24).
18. It follows that questions concerning EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court for a preliminary ruling only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, in particular, Joined Cases C-570/07 and C-571/07 Blanco Pérez and Chao Gómez [2010] ECR I-4629, paragraph 36).
20. It is common ground in the present case that Garkalns is a Latvian undertaking, set up in Latvia, and that all the elements of the dispute before the referring court are confined within one Member State. However, as is apparent from the case-law of the Court, the Court’s answer may be useful to the referring court even in such circumstances, in particular if its national law were to require it to grant a national the same rights as those which a national of another Member State would derive from EU law in the same situation (see, to that effect, Blanco Pérez and Chao Gómez , paragraph 39, and Joined Cases C-357/10 to C-359/10 Duomo Gpa and Others [2012] ECR, paragraph 28).
21. Furthermore, while national legislation such as that at issue in the main proceedings — which applies to Latvian nationals and the nationals of other Member States alike — is, generally, capable of falling within the scope of the provisions relating to the fundamental freedoms established by the Treaty on the Functioning of the European Union only to the extent that it applies to situations connected with trade between the Member States, it is far from inconceivable that operators established in Member States other than the Republic of Latvia have been or are interested in opening amusement arcades in Latvia (see, to that effect, Blanco Pérez and Chao Gómez , paragraph 40 and the case-law cited).
24. In that regard, it should be noted that, according to consistent case-law, activities which consist in allowing users to participate, for remuneration, in betting or gaming constitute ‘services’ for the purposes of Article 49 EC (Joined Cases C-316/07, C-358/07 to C-360/07, C-409/07 and C-410/07 Stoß and Others  [2010] ECR I-8069, paragraph 56 and the case-law cited).
26. As regards the delimitation of the scope, respectively, of the principles of freedom to provide services and freedom of establishment, it is necessary to establish whether or not the economic operator is established in the Member State in which it offers the service in question (see, to that effect, Case C-55/94 Gebhard [1995] ECR I-4165, paragraph 22). Where that operator is established in the Member State in which it offers the service, it falls within the scope of the principle of freedom of establishment, as defined in Article 43 EC. On the other hand, where the economic operator is not established in the Member State of destination, it is a cross-border service provider covered by the principle of freedom to provide services laid down in Article 49 EC (see Duomo Gpa and Others , paragraph 30 and the case-law cited).
27. In that context, the concept of establishment means that the operator offers its services on a stable and continuous basis from an establishment in the Member State of destination. On the other hand, every provision of services which are not offered on a stable and continuous basis from an establishment in the Member State of destination constitutes a ‘provision of services’ for the purposes of Article 49 EC (see Duomo Gpa and Others , paragraph 31 and the case-law cited).
28. It is also apparent from the case-law of the Court that no provision of the EC Treaty affords a means of determining, in an abstract manner, the duration or frequency beyond which the supply of a service or of a certain type of service can no longer be regarded as the provision of services and, accordingly, ‘services’ for the purposes of the Treaty may cover services varying widely in nature, including services which are provided over an extended period, even over several years (see Duomo Gpa and Others , paragraph 32 and the case-law cited).
30. In any event, it should be borne in mind that, in proceedings under Article 267 TFEU, which is based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in the case is a matter for the national court ( Stoß and Others , paragraph 62 and the case-law cited).
34. First of all, it should be noted that legislation of a Member State, such as that at issue in the main proceedings, which prohibits the pursuit of activities in the betting and gaming sector without prior authorisation from the administrative authorities, constitutes a restriction on the freedom to provide services guaranteed by Article 49 EC (see, to that effect, inter alia Joined Cases C-338/04, C-359/04 and C-360/04 Placanica and Others  [2007] ECR I-1891, paragraph 42).
35. In the case under consideration, however, it is necessary 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 45 EC and 46 EC, which are applicable in this area by virtue of Article 55 EC, or justified, in accordance with the case-law of the Court, by overriding reasons in the public interest (see, to that effect, Case C-42/07 Liga Portuguesa de Futebol Profissional and Bwin International  [2009] ECR I-7633, paragraph 55, and the order in Case C-102/10 Bejan  [2010] ECR, paragraph 44).
38. As the Court has held, national authorities enjoy a sufficient measure of discretion in that area to enable 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 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, Stoß and Others , paragraph 76, and Case C-46/08 Carmen Media Group [2010] ECR I-8149, paragraph 46).
39. In that connection, it should be noted that 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 (see, to that effect, Carmen Media Group , paragraph 55 and the case-law cited).
42. In addition, in order to be consistent with the principle of equal treatment and to meet the obligation of transparency which flows from that principle, an authorisation scheme for betting and gaming must be based on objective, non-discriminatory criteria known in advance, in such a way as to circumscribe the exercise by the authorities of their discretion so that it is not used arbitrarily (see, to that effect, Sporting Exchange , paragraph 50).
44. In that connection, the Court has held that it is for the national courts to ensure, in the light, in particular, of the actual rules for applying the restrictive legislation concerned, that that legislation genuinely meets the concern to reduce opportunities for gambling and to limit activities in that domain in a consistent and systematic manner (see, to that effect, Carmen Media Group , paragraph 65 and the case-law cited).