Criminal proceedings against Lars Erik Staffan Lindberg.
Date: 2005-04-21
43. Second, if the provisions of the amended Law on Lotteries at issue had constituted technical regulations, the Member State concerned would have been required to notify them in the form of a draft under Directive 83/189 in the version resulting from Directive 94/10 (see, inter alia, to that effect Case C-33/97 Colim  [1999] ECR I-3175, paragraphs 25 and 26).
46. Third, the Portuguese Government observes that the Court has held 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 EC Treaty and, accordingly, it cannot come within the scope of Articles 30 and 34 of the EC Treaty (now, after amendment, Articles 28 EC and 29 EC) relating to the free movement of goods (see Case C-6/01 Anomar and Others  [2003] ECR I-8621, paragraph 56).
48. In that regard, it must be observed that Directive 83/189 is designed to protect, by means of preventive monitoring, the free movement of goods, which is one of the foundations of the Community (see, inter alia, Case C-226/97 Lemmens  [1998] ECR I-3711, paragraph 32).
54. It follows from Article 1(9) of Directive 83/189 that the definition of ‘technical regulation’ is divided into three categories, namely, first, the ‘technical specification’ within the meaning of Article 1(2) of that directive, second, the ‘other requirement’ as defined in Article 1(3) of that directive and, third, the ‘provisions … prohibiting the manufacture, importation, marketing or use of a product’ referred to in the first subparagraph of Article 1(9) of that directive.
57. As the Court has held, the concept of technical specification presupposes that the national measure refers to the product or its packaging as such and thus lays down one of the characteristics required of a product (see, to that effect, Case C-278/99 Van der Burg [2001] ECR I-2015, paragraph 20; Case C-390/99 Canal Satélite Digital [2002] ECR I-607, paragraph 45; and Case C-159/00 Sapod Audic  [2002] ECR I-5031, paragraph 30).
59. Such a measure is therefore intended to regulate the activity of undertakings operating in the area of providing services in connection with gaming machines. Thus, the Court has held that national provisions which merely lay down conditions governing the establishment of undertakings, such as provisions making the exercise of an activity subject to prior authorisation, do not constitute technical specifications (see, to that effect, Case C-194/94 CIA Security International  [1996] ECR I-2201, paragraph 25).
69. Such a measure is a requirement imposed in connection with a product, namely gaming machines, essentially for the purpose of the protection of consumers, in this case the players concerned.
70. Accordingly, a prohibition such as that laid down by the relevant provisions of the amended Law on Lotteries relates to the use of a product within the meaning of Article 1(9) of Directive 83/189.
71. Moreover, the requirement at issue in the main proceedings is not imposed on gaming machines for the purposes of placing them on the market but concerns their life cycle after they have been placed on the market within the meaning of the definition of ‘other requirements’ set out in Article 1(3) of Directive 83/189.
72. In order to fall within ‘other requirements’ within the meaning of Article 1(3) of Directive 83/189, a requirement such as the prohibition on the use of the gaming machines at issue in the main proceedings must constitute a ‘condition’, in this case, of use, which can significantly influence the composition or nature of the product or its marketing.
73. However, the question then arises whether that prohibition must be deemed a ‘condition’ of the use of the product concerned or whether it is, rather, a national measure falling within the third category of technical regulations referred to in Article 1(9) of Directive 83/189, which was also inserted in it by Directive 94/10, namely that of ‘laws … of Member States … prohibiting the manufacture, importation, marketing or use of a product’.
74. Whether a national measure such as that at issue in the main proceedings falls within one or the other of those two categories of technical regulation depends on the scope of the prohibition laid down by that measure.
76. To fall within that third category of technical regulation concerning a prohibition inter alia on use the measures must have a scope which goes well beyond a limitation to certain possible uses of the product in question and must thus not be confined to a mere restriction of its use.
77. As the Advocate General pointed out in point 70 of his Opinion, that category of technical regulation is particularly intended to cover national measures which leave no room for any use which can reasonably be made of the product concerned other than a purely marginal one. It is for the national court to ascertain whether the prohibition entailed by the national provision at issue in the main proceedings is such a measure.
78. If it should prove, following such examination by the referring court, that such is not the case in the main proceedings, that national provision would be liable to be deemed an ‘other requirement’ since it is common ground that compliance with that requirement is mandatory de jure for the use of the product in the Member State concerned within the meaning of Article 1(9) of Directive 83/189. However, in that event, it is also for the referring court to verify that the prohibition at issue may significantly influence the composition or nature of the product or its marketing within the meaning of Article 1(3).
79. In the course of the verification to be carried out by the referring court, it would be permissible for it to examine inter alia the possible implications of the argument, raised by the Portuguese Government, that the gaming machines concerned can be programmed and, if necessary, reprogrammed to perform different functions.
82. In that regard, it must first be observed that a national measure which reproduces or replaces, without adding new or additional specifications, existing technical regulations which, if adopted after the entry into force of Directive 83/189, have been duly notified to the Commission, cannot be regarded as a ‘draft’ technical regulation within the meaning of Article 1(9) of Directive 83/189 or, consequently, as subject to the obligation to notify (see Colim , cited above, paragraph 22). In the present case, the date of the entry into force of Directive 83/189 as regards the Kingdom of Sweden should be taken into account.
83. Next, as observed in paragraph 41 of this judgment, the question whether the prohibition on the organisation of games of chance using certain gaming machines, in particular the ‘lyckohjulsspel’ at issue in the main proceedings, was already laid down by the original version of the Law on Lotteries, so that the 1996 law merely clarified that point or whether, rather, it was that law which inserted the prohibition in the Law on Lotteries, constitutes a question of national law which falls within the jurisdiction of the referring court.
84. Finally, according to the answer given to the first two questions, a national measure imposing restrictions on a service such as that consisting in the operation of certain gaming machines may, under certain conditions, constitute a technical regulation which must be notified under Directive 83/189.
85. In the light of the foregoing, the answer to the third question must be that redefining in national legislation a service connected with the design of a product, in particular that of operating certain gaming machines, as the 1996 law did, can constitute a technical regulation which must be notified under Directive 83/189, if that new legislation does not merely reproduce or replace, without adding new or additional specifications, existing technical regulations which, if adopted after the entry into force of Directive 83/189 in the Member State concerned, have been duly notified to the Commission.
The fourth question
87. As regards the first factor mentioned by the referring court, that is to say, the replacement of a licence requirement by a prohibition in national law, it must be observed that the Court has held that national provisions which merely lay down conditions governing the establishment of undertakings, such as provisions making the exercise of an activity subject to prior authorisation, do not constitute technical regulations within the meaning of Article 1(9) of Directive 83/189. Technical regulations within the meaning of that provision are specifications defining the characteristics of products and not specifications concerning economic operators (see Canal Satélite Digital , paragraph 45, and the case-law cited).