Admiral Casinos & Entertainment AG v Balmatic Handelsgesellschaft m.b.H and Others.
Date: 2016-06-30
19


In that connection, it should be recalled that, although, in view of the division of responsibilities in the preliminary ruling procedure, it is for the national court alone to determine the subject matter of the questions which it proposes to refer to the Court, the latter will, in exceptional circumstances, examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction (see judgment of 9 November 2010 in Volker und Markus Schecke and Eifert, C‑92/09 and C‑93/09, EU:C:2010:662, paragraph 39).
20


That is the case, in particular, where the problem referred to the Court is purely hypothetical or where the interpretation of an EU rule which is sought by the national court has no relation to the actual facts of the main action or to its purpose. Thus, the Court does not have jurisdiction to reply to a question raised where it is obvious that the provision of EU law referred to the Court for interpretation is incapable of applying (see judgment of 1 October 2009 in Woningstichting Sint Servatius, C‑567/07, EU:C:2009:593, paragraph 43 and the case-law cited).
21


It is true that the provisions of the FEU Treaty on the freedom to provide services do not apply to situations which are confined in all respects within a single Member State (see, by analogy, judgment of 17 July 2008 in Commission v France, C‑389/05, EU:C:2008:411, paragraph 49).
22


In that regard, it should be recalled that, while national legislation such as that at issue in the main proceedings — which applies without distinction to Austrian operators and to operators whose seat is in another Member State — is, generally, capable of falling within the scope of the provisions relating to the fundamental freedoms guaranteed by the FEU Treaty 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 Austria have been or are interested in operating gaming machines in that Member State (see, to that effect, judgments of 19 July 2012 in Garkalns, C‑470/11, EU:C:2012:505, paragraph 21, and 13 February 2014 in Sokoll-Seebacher, C‑367/12, EU:C:2014:68, paragraph 10).
28


The Court observes, however, that, having regard to the context of settled and well-established case-law in which it has been used, the German word ‘tatsächlich’ must, in the present case, be understood as being analogous to the word ‘wirklich’, as the two terms appear to be interchangeable in that context. Thus, whilst it is true that the Court used the word ‘tatsächlich’ in paragraph 98 of its judgment of 8 September 2010 in Stoß and Others (C‑316/07, C‑358/07 to C‑360/07, C‑409/07 and C‑410/07, EU:C:2010:504), that paragraph nevertheless refers to an earlier, settled line of authority, deriving from paragraph 37 of the judgment of 21 October 1999 in Zenatti (C‑67/98, EU:C:1999:514) and paragraph 53 of the judgment of 6 March 2007 in Placanica and Others (C‑338/04, C‑359/04 and C‑360/04, EU:C:2007:133), which, in the German-language versions, used the word ‘wirklich’. Likewise, the German and French versions of paragraph 36 of the judgment of 24 January 2013 in Stanleybet and Others (C‑186/11 and C‑209/11, EU:C:2013:33) use, in the same context, the words ‘wirklich’ and ‘véritablement’ respectively.
36


The Court therefore holds that, in a review of proportionality, the approach taken by the referring 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.