Associação Nacional de Operadores de Máquinas Recreativas (Anomar) and Others v Estado português.
Date: 2003-09-11
37. As regards the first objection, although the Court has no jurisdiction under Article 234 EC to apply a rule of Community law to a particular case and thus to judge a provision of national law by reference to such a rule it may, in the framework of the judicial cooperation provided for by that article and on the basis of the material presented to it, provide the national court with an interpretation of Community law which may be useful to it in assessing the effects of that provision (Case 20/87 Gauchard  [1987] ECR 4879, paragraph 5, and Joined Cases C-515/99, C-519/99 to C-524/99 and C-526/99 to C-540/99 Reisch and Others  [2002] ECR I-2157, paragraph 22).
38. However, in the main proceedings, the referring court asks the Court to interpret Treaty provisions solely for the purpose of determining whether those provisions are capable of having any bearing on the application of the relevant national rules in those proceedings. It cannot therefore be maintained that the purpose of the questions referred for a preliminary ruling in the main proceedings is anything other than the interpretation of provisions of the Treaty.
39. As for the second objection, it must be acknowledged that all the facts in the main proceedings are confined to a single Member State. However, national legislation such as Decree-Law No 422/89, which applies without distinction to Portuguese nationals and to nationals of other Member States, may generally fall within the scope of the provisions on the fundamental freedoms established by the Treaty only to the extent that it applies to situations related to intra-Community trade (see, to that effect, Case 286/81 Oosthoek's Uitgeversmaatschappij  [1982] ECR 4575, paragraph 9, and Case 98/86 Mathot  [1987] ECR 809, paragraphs 8 and 9, and Reisch and Others , cited above, paragraph 24).
40. That finding does not, however, mean that there is no need to reply to the questions referred to the Court for a preliminary ruling in this case. In principle, it is for the national courts alone to determine, having regard to the particular features of each case, both the need for a preliminary ruling in order to enable them to give their judgment and the relevance of the questions which they refer to the Court (Case C-448/98 Guimont  [2000] ECR I-10663, paragraph 22). A reference for a preliminary ruling from a national court may be rejected by the Court only if it is quite obvious that the interpretation of Community law sought by that court bears no relation to the actual nature of the case or the subject-matter of the main action (Case C-281/98 Angonese  [2000] ECR I-4139, paragraph 18, and Reisch and Others , cited above, paragraph 25).
41. In this case, it is not obvious that the interpretation of Community law requested is not necessary for the referring court. Such a reply might be useful to it if its national law were to require that a Portuguese national must be allowed to enjoy the same rights as those which a national of another Member State would derive from Community law in the same situation ( Guimont , cited above, paragraph 23, and Reisch and Others , cited above, paragraph 26).
46. As the Portuguese Government in particular points out, the Court has already held that lotteries constitute an economic activity, within the meaning of the Treaty, inasmuch as they consist in the importation of goods or the provision of services for remuneration (Case C-275/92 Schindler  [1994] ECR I-1039, paragraph 19). With particular regard to the activities in issue in the main proceedings, the Court has held that games consisting in the use, in return for a money payment, of slot machines must be regarded as gambling which is comparable to the lotteries forming the subject of the Schindler  judgment (Case C-124/97 Läärä and Others  [1999] ECR I-6067, paragraph 18).
51. They draw a distinction between gaming machines and gaming activities, as the Court itself did at paragraph 20 of Läärä and Others , pointing out expressly that slot machines constitute goods in themselves which may fall within the scope of Article 30 of the EC Treaty (now, after amendment, Article 28 EC). As regards gaming, that is to say the operation of gaming machines, those governments and the Commission, relying on Schindler , cited above, submit that they are not activities relating to goods but must instead be regarded as services.
52. The Court indeed held, in paragraphs 24 and 25 of Schindler , cited above, that lottery activities are not activities relating to goods, falling, as such, under Article 30 of the Treaty, but are however to be regarded as services within the meaning of the Treaty.
54. In connection to the similar activity of lotteries, the Court has held that the importation and distribution of advertisements and application forms, and possibly tickets, which are specific steps in the organisation or operation of a lottery, cannot, under the Treaty, be considered independently of the lottery to which they relate. Such activities are not ends in themselves; rather, their sole purpose is to enable residents of the Member States where those objects are imported and distributed to participate in the lottery ( Schindler , cited above, paragraph 22).
55. However, without there being any need, by approximate analogy with that reasoning, to regard the importation of slot machines as ancillary to the operation thereof, it suffices to state, as the Court did in paragraphs 20 to 29 of Läärä and Others , cited above, that, even though the operation of slot machines is linked to operations to import them, the former activity comes under the provisions of the Treaty relating to the freedom to provide services and the latter under those relating to the free movement of goods.
56. The answer to the second, third and fifth questions must therefore be that the activity of operating gaming machines must, irrespective of whether or not it is separable from activities relating to the manufacture, importation and distribution of such machines, be considered a service within the meaning of the Treaty and, accordingly, it cannot come within the scope of Articles 28 EC and 29 EC relating to the free movement of goods.
Question 4
59. It follows both from the place of this provision in the chapter relating to the prohibition of quantitative restrictions and from the use of the words imports and exports in the second subparagraph of Article 31(1) and of the word products in Article 31(3) that it refers to trade in goods and cannot relate to a monopoly in the provision of services (see Case 155/73 Sacchi  [1974] ECR 409, paragraph 10).
65. It is common ground that national legislation may fall within the ambit of Article 49 EC, even if it is applicable without distinction, when it is liable to prohibit or otherwise impede the activities of a provider of services established in another Member State where he lawfully provides similar services ( Schindler , cited above, paragraph 43).
73. The various considerations leading to the adoption of such legislation to govern games of chance or gambling must be taken together, as the Court pointed out in paragraph 58 of the judgment in Schindler , cited above. In the present case, those considerations concern the protection of consumers, who are the recipients of the service, and the maintenance of order in society. The Court has already held that those objectives may justify restrictions on freedom to provide services (Case 220/83 Commission  v France  [1986] ECR 3663, paragraph 20; Schindler , cited above, paragraph 58; and Läärä and Others , cited above, paragraph 33).
74. Furthermore, as the Commission points out, the Portuguese legislation in issue in the main proceedings is substantially similar to the Finnish legislation on slot machines, in issue in Läärä and Others , in respect of which the Court found that it was not disproportionate, in view of the objectives which justified it ( Läärä and Others , cited above, paragraph 42). Moreover, the Court considered that limited authorisation of gambling on the basis of special or exclusive rights granted or assigned to certain bodies, falls within the ambit of such public-interest objectives (Case C-67/98 Zenatti  [1999] ECR I-7289, paragraph 35).
75. Accordingly, the answer to the 6th, 7th, 9th and 10th questions must be that national legislation, such as the Portuguese legislation, which authorises the operation and playing of games of chance or gambling solely in casinos in permanent or temporary gaming areas created by decree-law and which is applicable without distinction to its own nationals and nationals of other Member States constitutes a barrier to the freedom to provide services. However, Articles 49 EC et seq. do not preclude such national legislation, in view of the concerns of social policy and the prevention of fraud which justify it.
Question 8
79. It is common ground that it is for national authorities to consider whether, in the context of the aim pursued, it is necessary to prohibit activities of that kind, totally or partially, or only to restrict them and to lay down more or less rigorous procedures for controlling them ( Läärä and Others , cited above, paragraph 35, and Zenatti , cited above, paragraph 33).
80. Accordingly, the mere fact that a Member State has chosen a system of protection different from that adopted by another Member State cannot affect the appraisal as to the need for and proportionality of the provisions adopted. They must be assessed solely in the light of the objectives pursued by the national authorities of the Member State concerned and of the level of protection which they seek to ensure ( Läärä and Others , cited above, paragraph 36, and Zenatti , cited above, paragraph 34).
86. As the Portuguese Government points out, the Court has held that national measures which restrict the freedom to provide services, which are applicable without distinction and are justified by overriding reasons relating to the public interest - as is the case here, as is evident from paragraphs 68 and 72 to 75 of this judgment - must, nevertheless, be such as to guarantee the achievement of the intended aim and must not go beyond what is necessary in order to achieve it (Case C-288/89 Collectieve Antennevoorziening Gouda  [1991] ECR I-4007, paragraphs 13 to 15, and Läärä and Others , cited above, paragraph 31).
87. None the less, it is a matter for the national authorities alone, in the context of their power of assessment, to define the objectives which they intend to protect, to determine the means which they consider most suited to achieve them and to establish rules for the operation and playing of games, which may be more or less strict (see, to that effect, Schindler , cited above, paragraph 61; Läärä and Others , cited above, paragraph 35, and Zenatti , cited above, paragraph 33) and which have been deemed compatible with the Treaty.
88. The answer to the 11th, 12th and 13th questions should therefore be that, in the context of legislation which is compatible with the EC Treaty, the choice of methods for organising and controlling the operation and playing of games of chance or gambling, such as the conclusion with the State of an administrative licensing contract or the restriction of the operation and playing of certain games to places duly licensed for that purpose, falls within the margin of discretion which the national authorities enjoy.
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