HIT hoteli, igralnice, turizem dd Nova Gorica and HIT LARIX, prirejanje posebnih iger na srečo in turizem dd v Bundesminister für Finanzen.
Date: 2012-07-12
16. Article 56 TFEU requires the abolition of all restrictions on the freedom to provide services, even if those restrictions apply without distinction to national providers of services and to those from other Member States, when they are liable to prohibit, impede or render less advantageous the activities of a service provider established in another Member State where it lawfully provides similar services. Moreover, the freedom to provide services is for the benefit of both providers and recipients of services (see, inter alia, Joined Cases C-403/08 and C-429/08 Football Association Premier League and Others [2011] ECR I-9083, paragraph 85 and the case-law cited).
17. More specifically, in the area of advertising for games of chance, the Court has held that national legislation whose effect is to prohibit the promotion in a Member State of gambling organised legally in other Member States constitutes a restriction on the freedom to provide services (see, to this effect, Joined Cases C-447/08 and C-448/08 Sjöberg and Gerdin  [2010] ECR I-6921, paragraphs 33 and 34).
20. It is necessary to consider to what extent the restriction at issue in the main proceedings may be allowed as a derogation expressly provided for by Articles 51 TFEU and 52 TFEU, applicable in this area by virtue of Article 62 TFEU, or justified, in accordance with the case-law of the Court, by overriding reasons in the public interest.
21. It is clear from the Court’s case-law that restrictions on gaming activities may be justified by overriding reasons in the public interest, such as consumer protection and the prevention of both fraud and incitement to squander money on gambling (see, to this effect, Case C-46/08 Carmen Media Group  [2010] ECR I-8149, paragraph 55 and the case-law cited).
22. However, the restrictions imposed by the Member States must satisfy the conditions laid down in the case-law of the Court as regards their proportionality, that is to say, be suitable for ensuring attainment of the objective pursued and not go beyond what is necessary in order to achieve that objective. It should also be recalled in this connection that national legislation is appropriate for ensuring attainment of the objective relied on only if it genuinely reflects a concern to attain it in a consistent and systematic manner. In any event, the restrictions must be applied without discrimination (see, to this effect, Case C-42/07 Liga Portuguesa de Futebol Profissional and Bwin International  [2009] ECR I-7633, paragraphs 59 to 61 and the case-law cited).
25. Thus, the mere fact that a Member State has opted for a system of protection which differs from that adopted by another Member State cannot affect the assessment of the proportionality of the provisions enacted to that end. Those provisions must be assessed solely by reference to the objectives pursued by the competent authorities of the Member State concerned and the level of protection which they seek to ensure ( Liga Portuguesa de Futebol Profissional and Bwin International , paragraph 58 and the case-law cited).
31. Since the Member States are free to set the objectives of their policy on games of chance and to define in detail the level of protection sought (see Liga Portuguesa de Futebol Profissional and Bwin International , paragraph 59 and the case-law cited), it must be held that legislation such as that at issue in the main proceedings does not go beyond what is necessary provided that it merely requires, in order for authorisation to carry out advertising to be granted, that it be established that, in the other Member State, the applicable legislation ensures protection against the risks of gaming that is in essence of a level equivalent to that which it guarantees itself.
33. In the procedure referred to in Article 267 TFEU, a provision which is based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts is a matter for the national court (see 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 46 and the case-law cited).