OPINION OF ADVOCATE GENERAL
BOT
delivered on 14 October 2008 1( )
Case C‑42/07
Liga
Portuguesa de Futebol Profissional (CA/LPFP)
Baw International Ltd
v
Departamento de
Jogos 🌻 da Santa Casa da Misericórdia de Lisboa
(Reference for a preliminary ruling from
the Tribunal de Pequena Instância Criminal do Porto 🌻 (Portugal))
(Legislation of a
Member State granting a single entity an exclusive right to organise and operate
betting on the internet 🌻 – ‘Technical regulation’ within the meaning of Directive
98/34/EC – Restriction of the freedom to provide services – Overriding reasons 🌻 relating
to the public interest – Protection of consumers and maintenance of public order –
National legislation appropriate for attaining 🌻 objectives – Proportionality)
Table of
contents
I – Introduction
A – General presentation of the case
B – Games of chance and
gambling
1. A 🌻 wide variety of games
2. A significant economic factor
3. An activity
that gives rise to serious risks
4. An activity strictly regulated 🌻 by the Member
States
5. The impact of new means of communication
II – The legal context
A – Community
law
1. Secondary law
a) 🌻 No measures governing games of chance and gambling in
particular
b) Directive 98/34
2. Primary law and its interpretation
a) The Treaty
b)
Case-law
B 🌻 – National law
a) Information provided by the referring court
2. Additional
information provided by the Portuguese Government
a) The types of games
i) 🌻 Casino
games
ii) Lotteries, tombolas and publicity competitions
iii) Lotto games and
betting
b) The regulations of the Santa Casa
III – The main 🌻 proceedings and the
question referred
IV – Analysis
A – Admissibility of the question referred
B –
Substance of the case
1. Application of 🌻 Directive 98/34
a) The Court’s opportunity to
interpret Directive 98/34, although the national court does not refer to it
b) The
contested 🌻 provisions fall within the scope of Directive 98/34
c) The consequences of
failing to give notice of the contested measures
d) The 🌻 effects of the Court’s judgment
for the referring court
2. The compatibility of the national legislation in issue with
the freedoms 🌻 of movement
a) The relevant freedom of movement
b) The existence of a
restriction
c) The justification for the restriction
i) Arguments of the 🌻 parties
ii) My
assessment
– The effect of the limits imposed on the powers of the Member States in the
area of 🌻 games of chance and gambling
– Consumer protection and the maintaining of
public order may justify measures restricting the freedom to 🌻 provide off-course betting
on the internet
– The proportionality of the legislation in question
–
Non-discriminatory application
V – Conclusions
I – Introduction
A – 🌻 General
presentation of the case
1. The problem of the conformity with Community law of the
Member States’ legislation concerning games 🌻 of chance and gambling has already given
rise to a relatively large number of cases. Nevertheless it continues to give 🌻 rise to
numerous references from the courts of the Member States, as shown by the number of
cases at present 🌻 pending before the Court. ( )
2. In the present case, the referring
court needs to be enabled to determine whether 🌻 its domestic law, in so far as it grants
a single operator the exclusive right to offer off-course bets on 🌻 the internet,
conforms with Community law.
3. The case concerns the Portuguese legislation which
confers on the Departamento de Jogos da 🌻 Santa Casa da Misericórdia de Lisboa ( ), a
centuries-old non-profit-making organisation which has the object of financing causes
in 🌻 the public interest, the exclusive right to organise and operate lotteries and
off-course betting in the whole of national territory. 🌻 This exclusive right has been
extended to all electronic means of communication, in particular the internet. The
legislation also provides 🌻 for penalties in the form of administrative fines on those
who organise such games in breach of the abovementioned exclusive 🌻 right and who
advertise such games.
4. Baw International Ltd, ( ) an on-line betting company
established in Gibraltar, and the 🌻 Liga Portuguesa de Futebol Profissional (CA/LPFP) ( )
were fined for offering off-course betting by electronic means and advertising it.
5.
🌻 The referring court, before which Bwin and the Liga contested the fines, is uncertain
as to whether its national legislation, 🌻 in providing for such a system of exclusive
rights for off-course betting on the internet, conforms with Community law.
6. In 🌻 those
circumstances, I shall submit, first, that legislation of a Member State which grants a
single entity the exclusive right 🌻 to offer off-course betting on the internet and which
provides for penalties in the form of fines on persons disregarding 🌻 that right,
constitutes a ‘technical regulation’ within the meaning of Directive 98/43/EC of the
European Parliament and of the Council. 🌻 ( ) I shall conclude from this that, if that
legislation was not duly notified to the Commission of the 🌻 European Communities, it
cannot be relied on against private operators such as the Liga and Bwin.
7. Secondly, I
shall state 🌻 that such legislation constitutes a restriction of the freedom to provide
services. I shall consider to what extent such legislation 🌻 may be justified.
8. To
begin with, I shall describe the effect which I think the restriction by Community law
of 🌻 the powers of the Member States in the field of betting and games of chance should
have. I shall state 🌻 that the aim of the freedoms of movement is not to open up the
market in games of chance and 🌻 gambling. I shall argue that a Member State should be
required to open up this activity to the market only 🌻 if, in law or in fact, it treats
the gambling and games of chance as true economic activities which yield 🌻 maximum
profits. I shall also argue that the Member States should have a broad discretion in
determining what measures to 🌻 take in order to protect consumers and to maintain public
order against the excesses of gambling, including determining the gambling 🌻 services
necessary for that purpose. I shall conclude that Community law should be confined to
prohibiting situations in which restrictive 🌻 measures taken to protect consumers against
excessive gaming are manifestly distorting their purpose.
9. I shall state that Article
49 EC 🌻 does not preclude legislation such as the Portuguese legislation at issue if it
satisfies the following conditions, which must be 🌻 verified by the referring court: the
legislation must be justified by overriding reasons relating to the public interest, it
must 🌻 be appropriate for ensuring the attainment of the objectives which it pursues, it
must not exceed what is necessary for 🌻 attaining them and it must not be applied in a
discriminatory way. I shall make the following points regarding those 🌻 conditions.
10.
First, with regard to the risks created by gambling and games of chance on the
internet, a Member State 🌻 may legitimately restrict the right to operate such games in
order to protect consumers and to maintain public order.
11. Second, 🌻 the grant of the
exclusive right to organise and operate such games to a single entity may be an
appropriate 🌻 measure for pursuing those aims if, first, the Member State has the means
of directing and controlling effectively the operation 🌻 of gambling and games of chance
by the entity holding that right and, second, if, in actually implementing that
measure, 🌻 the Member State does not manifestly exceed its margin of discretion.
12.
Third, the grant of an exclusive right to a 🌻 single non-profit-making entity controlled
by the Member State may be a proportionate measure.
13. Fourth, the legislation in
question, in so 🌻 far as it grants a single entity the exclusive right to operate
lotteries and off-course betting on the internet is 🌻 not, in itself, discriminatory.
14.
Before setting out the legal and factual context of the present case, followed by my
analysis, 🌻 I think it necessary to describe briefly the nature of games of chance and
gambling in the European Union and 🌻 then the issues to which those activities give
rise.
B – Games of chance and gambling
15. I shall briefly make the 🌻 following five
points. Games of chance and gambling today include a wide variety of games. They have
considerable economic significance. 🌻 Nevertheless they give rise to serious risks to
society. They are the subject of strict regulations of different kinds in 🌻 the Member
States. Finally, electronic means of communication, in particular the internet, are an
important factor in the spread of 🌻 such games.
1. A wide variety of games
16. The
playing of games the result of which depends on chance, in which 🌻 the players wager a
stake with valuables or money, appears to be very ancient and common to many societies.
Historians 🌻 situate their origin in the third millennium BC in the Far East and Egypt. (
) Such games were common 🌻 in ancient Greece and Rome. ( )
17. Games of chance and
gambling have changed considerably in the course of history 🌻 and there is a very wide
variety of them today. They may be divided very broadly into four main categories.
18.
🌻 The first category consists of lotteries, in which I include bingo games, which are
based on the same principle. This 🌻 is a pure game of chance in which knowledge and
strategy play no part at all. The result of the 🌻 game is determined by the drawing by
lot of winning numbers, the result of which is known immediately or later.
19.
🌻 Lotteries and bingo games may be organised on a very different scale, from the annual
draw or bingo of a 🌻 local association with prizes in kind of small value to games
organised by national or regional lotteries aimed at the 🌻 entire territory of a Member
State or a region of a federal State and which offer a prize that could 🌻 be as much as
several million euros. They may also be organised in different forms, so that there is
a 🌻 very wide variety of them.
20. In the course of February 2004 the lotteries of
several Member States decided to set 🌻 up together a common lottery called
‘EuroMillions’. ( )
21. So-called ‘instant’ or ‘scratch card’ lotteries have also
appeared in the 🌻 last 20 years. These offer cards at a modest price on which the result
is printed beneath a film which 🌻 has to be scratched off with a fingernail or coin.
22.
The second main category of games of chance and gambling 🌻 is betting. This may be based
on the result of a competition, the occurrence of an event or the existence 🌻 of
something.
23. The best known and oldest form of betting is on horse races. The punters
are invited to bet 🌻 on the result of a race in which those taking part, horses and
jockeys, are known in advance. Consequently the 🌻 punters can place their bets in
reliance on luck and also on their knowledge of the characteristics and the performance
🌻 of the horses and jockeys. In addition to betting on horse races, there is now also
betting on sporting events.
24. 🌻 The winnings depend either on the total amount of bets
or on the odds agreed with the bookmaker.
25. In the 🌻 third place we have casinos.
Different games are authorised in these establishments, which are open to the public.
They have 🌻 long been regarded as reserved for wealthy clients who are able to gamble
large sums in games that are complicated, 🌻 or supposed to be such, surrounded by rites
and ceremonial.
26. Gaming machines must be placed in fourth place. They were 🌻 invented
in the United States in the first half of the 19th century and were immediately
successful. ( ) They 🌻 are slot machines into which the player is invited to insert a
coin or token and which show a pre-programmed 🌻 result by means of a random computer
system. Consequently the moment and frequency with which the result shown by the
🌻 machine corresponds to a winning combination depend on chance.
2. A significant
economic factor
27. In recent years gambling and games of 🌻 chance have increased
significantly. They now constitute what may be described as a considerable economic
factor. In the first place, 🌻 they generate a very large income for the organisations
that operate them. ( ) Secondly, they provide a substantial number 🌻 of jobs in the
different Member States. ( )
3. An activity that gives rise to serious risks
28.
However, games of 🌻 chance and gambling give rise to serious risks to society in relation
to the players and to the operators that 🌻 organise them.
29. First, they may lead
players to jeopardise their financial and family situation, and even their health.
30.
Games of 🌻 chance and gambling by nature allow only a very small number of players to
win, failing which they will lose 🌻 and cannot go on. In the great majority of cases,
therefore, players lose more than they gain. However, the excitement 🌻 of the game and
the promise of winning, sometimes very large amounts, may lead players to spend on
gambling more 🌻 than the share of their budget available for leisure pursuits.
31. This
behaviour may therefore have the consequence that players are 🌻 no longer able to fulfil
their social and family obligations. It may also lead to a situation of real addiction
🌻 to games of chance and gambling, comparable to addiction caused by drugs or alcohol. (
)
32. Secondly, because of the 🌻 very considerable stakes involved in gambling and games
of chance, they are likely to be open to manipulation on the 🌻 part of the organiser who
may wish to arrange matters so that the result of the draw or the sporting 🌻 event is the
most favourable to himself. Furthermore, in that connection an individual player has no
really effective means of 🌻 verifying that the conditions in which gambling takes place
actually conform with what is announced.
33. Finally, games of chance and 🌻 gambling may
be a means of ‘laundering’ money obtained illegally. Such money can be gambled in the
hope of winning 🌻 more. It can also be converted into profit if the criminal is also the
owner of the gambling establishment.
4. An 🌻 activity strictly regulated by the Member
States
34. In the course of history games of chance and gambling have often been
🌻 condemned on moral and religious grounds and also the maintaining of public order. ( )
Nevertheless they have been accepted 🌻 as a social fact.
35. The reaction of governing
authorities has oscillated between total prohibition, strict regulation, while
providing that the 🌻 revenue from games of chance and gambling should serve exclusively
to finance causes of public interest, and encouragement so as 🌻 to profit from the manna
represented by this voluntary tax.
36. Nowadays games of chance and gambling are
subject to restrictive 🌻 regulation in most Member States of the European Union.
37. In a
number of those States ( ) these restrictions take 🌻 the form of a ban in principle on
games of chance and gambling, with specific exceptions. Likewise in most Member 🌻 States,
( ) the operation of a game of chance or gambling by a private operator, where it is
provided 🌻 for, is subject to obtaining a licence from the appropriate authority. In
addition, the number of operators who may be 🌻 authorised to operate a particular game is
normally limited, usually by a quota.
38. In several Member States the operation of
🌻 games of chance and gambling may also be the subject of an exclusive right granted to a
State organisation or 🌻 a private operator. ( )
39. There are considerable differences in
the legislation in force in the Member States. Apart from 🌻 the differences in operating
systems, there are exceptions to the general prohibition where it exists, and the
definition of ‘games 🌻 of chance and gambling’ and the scope of the national legislation
are not uniform. The same game may therefore be 🌻 authorised in one Member State and
prohibited in another or be treated differently. ( )
40. Finally, the tax treatment of
🌻 games of chance and gambling differs considerably from one Member State to another
because, in some Member States, the profits 🌻 generated by the operation of such games
and gambling must be appropriated, in varying proportions, to causes of general
interest. 🌻 Likewise, the share of the winnings distributed to players varies
significantly.
5. The impact of new means of communication
41. Until about 🌻 twenty years
ago, games of chance and gambling were accessible only in specific places such as the
numerous outlets for 🌻 betting and lottery tickets, race courses and casinos. This meant
that anyone wishing to bet or gamble had to make 🌻 a journey and it could only be done
during the opening times of the premises in question.
42. The appearance of 🌻 electronic
means of communication in the 1990s, such as mobile phones, interactive television and,
above all, the internet, changed the 🌻 situation radically. Thanks to these new means of
communication, punters can play games at any time without leaving their home.
43. 🌻 In
this way betting and gaming have been considerably facilitated. Access to these
pursuits has been encouraged by the following 🌻 factors. First, the number of persons who
can use electronic means of communication is increasing regularly. ( ) Second, they 🌻 are
becoming easier and easier to use and they function in an integrated system. ( )
Lastly, the financial transactions 🌻 can be carried out very easily through those means
of communication.
44. In addition, electronic means of communication, particularly the
internet, 🌻 enable persons residing in one Member State to gain physical access not only
to on‑line games offered by operators established 🌻 in that State, but also to those
offered by operators established in other Member States or non-member countries.
45.
Therefore these 🌻 new means of communication have permitted a significant increase in the
provision of games of chance and gambling, which have 🌻 become extremely successful. (
)
II – The legal context
A – Community law
1. Secondary law
a) No measures governing
games of chance 🌻 and gambling in particular
46. Games of chance and gambling have not so
far been the subject of any regulation or 🌻 harmonisation within the Union.
47. They are
expressly excluded from the scope of Directive 2000/31/EC of the European Parliament
and of 🌻 the Council, ( ) the last indent of Article 1(5)(d) of which provides that the
Directive does not apply to 🌻 ‘gambling activities which involve wagering a stake with
monetary value in games of chance, including lotteries and betting transactions’.
48.
Games 🌻 of chance and gambling are also excluded from the ambit of Directive 2006/123/EC
of the European Parliament and of the 🌻 Council, ( ) in which the twenty-fifth recital of
the preamble states that ‘gambling activities, including lottery and betting
transactions, 🌻 should be excluded … in view of the specific nature of these activities,
which entail implementation by Member States of 🌻 policies relating to public policy and
consumer protection’.
49. However, a national law which prohibits internet service
providers from offering games 🌻 of chance and gambling in the territory of a Member State
is likely to fall within the scope of Directive 🌻 98/34.
b) Directive 98/34
50. Directive
98/34 aims to remove or reduce barriers to the free movement of goods arising from the
🌻 adoption by the Member States of different technical regulations, by promoting the
transparency of national initiatives vis-à-vis the Commission, European 🌻 standardisation
bodies and the other Member States.
51. The ambit of Directive 98/34 was extended by
Directive 98/48 to all services 🌻 of the information society, that is to say, according
to Article 1(2) of Directive 98/34, any service normally provided for 🌻 remuneration by
electronic means and at the individual request of a recipient of services.
52. The term
‘technical regulation’ is defined 🌻 as follows in Article 1(11) of Directive
98/34:
‘Technical specifications and other requirements or rules on services, including
the relevant administrative 🌻 provisions, the observance of which is compulsory, de jure
or de facto, in the case of marketing, provision of a 🌻 service, establishment of a
service operator or use in a Member State or a major part thereof, as well as 🌻 laws,
regulations or administrative provisions of Member States, except those provided for in
Article 10, prohibiting the manufacture, importation, marketing 🌻 or use of a product or
prohibiting the provision or use of a service, or establishment as a service
provider.
…’
53. 🌻 Therefore Directive 98/34 provides for a system whereby each Member
State must notify the Commission of its proposed technical regulations 🌻 so as to enable
the Commission and the other Member States to inform it of their viewpoint and to
propose 🌻 a standardisation which is less restrictive of trade. This system also gives
the Commission the necessary time to propose, if 🌻 necessary, a binding standardisation
measure.
54. Article 8 of Directive 98/34 reads as follows:
‘1. … Member States shall
immediately communicate to 🌻 the Commission any draft technical regulation, except where
it merely transposes the full text of an international or European standard, 🌻 in which
case information regarding the relevant standard shall suffice; they shall also let the
Commission have a statement of 🌻 the grounds which make the enactment of such a technical
regulation necessary, where these have not already been made clear 🌻 in the draft.
…
The
Commission shall immediately notify the other Member States of the draft and all
documents which have been 🌻 forwarded to it; it may also refer this draft, for an
opinion, to the Committee referred to in Article 5 🌻 and, where appropriate, to the
committee responsible for the field in question.
…
2. The Commission and the Member
States may make 🌻 comments to the Member State which has forwarded a draft technical
regulation; that Member State shall take such comments into 🌻 account as far as possible
in the subsequent preparation of the technical regulation.
3. Member States shall
communicate the definitive text 🌻 of a technical regulation to the Commission without
delay.
…’
55. Article 9 of Directive 98/34 provides as follows:
‘1. Member States shall
🌻 postpone the adoption of a draft technical regulation for three months from the date of
receipt by the Commission of 🌻 the communication referred to in Article 8(1).
2. Member
States shall postpone:
…
– without prejudice to paragraphs 4 and 5, for four 🌻 months the
adoption of any draft rule on services, from the date of receipt by the Commission of
the communication 🌻 referred to in Article 8(1) if the Commission or another Member State
delivers a detailed opinion, within three months of 🌻 that date, to the effect that the
measure envisaged may create obstacles to the free movement of services or to 🌻 the
freedom of establishment of service operators within the internal market.
…
4. Member
States shall postpone the adoption of a draft 🌻 technical regulation for 12 months from
the date of receipt by the Commission of the communication referred to in Article 🌻 8(1)
if, within the three months following that date, the Commission announces its finding
that the draft technical regulation concerns 🌻 a matter which is covered by a proposal
for a directive, regulation or decision presented to the Council in accordance 🌻 with
Article 189 of the [EC] Treaty [now Article 249 EC].
…’
2. Primary law and its
interpretation
56. The regulations of the 🌻 Member States concerning games of chance and
gambling must not interfere with the obligations of the Member States in the 🌻 context of
the EC Treaty, particularly in relation to the freedoms of movement.
a) The Treaty
57.
The first paragraph of Article 🌻 49 EC prohibits restrictions on the freedom to provide
services within the Community in respect of nationals of Member States 🌻 who are
established in a State of the Community other than that of the person for whom the
services are 🌻 intended.
58. Under Articles 48 and 55 EC, Article 49 is applicable to the
services offered by a company formed in 🌻 accordance with the law of a Member State and
having its registered office, central administration or principal place of business
🌻 within the Community.
b) Case-law
59. The problem of whether the laws of the Member
States concerning games of chance and gambling 🌻 are consistent with the fundamental
freedoms of movement have given rise to a relatively large body of case-law, the main
🌻 outlines of which may be described as follows.
60. Games of chance and gambling are an
economic activity within the meaning 🌻 of Article 2 EC. ( ) They consist in the provision
of a particular service, namely the hope of making 🌻 a cash profit, in return for
remuneration.
61. They are also a service activity which falls within the scope of
Articles 🌻 43 and 49 EC concerning the freedom of establishment and the freedom to
provide services. National legislation prohibiting or restricting 🌻 the right to operate
games of chance and gambling in a Member State may therefore be a restriction of those
🌻 freedoms of movement. ( )
62. However, the Court has consistently held that such games
represent a particular economic activity for 🌻 the following reasons. First, in all the
Member States, moral, religious or cultural considerations tend to restrict, or even
prohibit, 🌻 such games to prevent them from being a source of private profit. Secondly,
games of chance and gambling involve a 🌻 high risk of crime or fraud, given the size of
the potential winnings. In addition, they are an encouragement to 🌻 spend which may have
damaging individual and social consequences. Finally, although this cannot in itself be
regarded as an objective 🌻 justification, it is not without relevance that lotteries may
make a significant contribution to the financing of benevolent or public 🌻 interest
activities such as social works, charitable works, sport or culture. ( )
63. Lotteries
organised on a large scale, ( 🌻 ) gaming machines, ( ) betting on sporting events ( ) and
casino gambling and games ( ) have been 🌻 considered likely to create a high risk of
crime and fraud because of the considerable sums involved, and also a 🌻 risk to consumers
because they are an encouragement to spend. ( )
64. The Member States may legitimately
provide for restrictions 🌻 on the operation of games with those characteristics, on
grounds of consumer protection (limiting the passion of human beings for 🌻 gaming,
preventing citizens from being tempted to spend excessively on gaming) and defending
the social order (preventing the risks of 🌻 crime and fraud created by gaming). These are
reasons of overriding general interest which may justify restrictions on the freedoms
🌻 of movement. ( )
65. On the other hand, using income from gaming to finance social
activities cannot be a justification 🌻 as such. The Court bases that assessment on the
principle that the diminution or reduction of tax revenue is not 🌻 one of the grounds
listed in Article 46 EC and does not constitute a matter of overriding general
interest. ( 🌻 ) Using the income from gaming in that way is only an incidental beneficial
consequence of a restriction. ( )
66. 🌻 Determining the necessary degree of protection
for consumers and the maintenance of public order with regard to games of chance 🌻 and
gambling is a matter for the Member States.
67. According to the Court, the national
authorities must be allowed a 🌻 sufficient margin of discretion to determine the
requirements entailed by the protection of gamblers and, more generally, taking account
of 🌻 the social and cultural characteristics of each Member State, the preservation of
public order, with regard to the organisational arrangements 🌻 of gaming and betting and
the amount of stakes, as well the use made of the profits to which they 🌻 give rise. ( )
The Member States are therefore free to set the objectives of their policy on betting
and 🌻 gaming and, where appropriate, to define in detail the degree of protection sought.
( )
68. However, in order to be 🌻 justified, a national measure restricting a freedom of
movement must be applied in a non-discriminatory manner; must be appropriate for
🌻 securing the attainment of the objective which it pursues; and must not go beyond what
is necessary in order to 🌻 attain that objective. ( )
69. In the context of monitoring
compliance with those conditions, the Court has stated on several 🌻 occasions that the
reasons justifying the restrictions laid down by the measure in question must be
considered together. ( )
70. 🌻 The Court has accepted that the following restrictions may
be justified.
71. A Member State has the right to prohibit entirely 🌻 any gaming in its
territory. ( ) According to the Court, it is for those 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. ( )
72. A Member State 🌻 may also grant a single entity
or a limited number of operators an exclusive right to operate gaming and betting. 🌻 (
)
73. The Court considers that the authorisation by a Member State for the operation of
gaming and betting activities 🌻 by an entity with an exclusive right or by a specified
number of operators is not incompatible with the aims 🌻 of protecting consumers from
being tempted to spend excessively and maintaining public order. According to the
Court, limited authorisation of 🌻 games of chance and gambling on an exclusive basis,
which has the advantage of confining the desire to gamble and 🌻 the operation of gambling
within controlled channels, of preventing the risk of fraud or crime in the context of
such 🌻 operation, and of using the resulting profits for public interest purposes,
likewise falls within the ambit of those objectives. ( 🌻 )
74. In addition, 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 need for, and
proportionality of, the provisions enacted 🌻 to that end. Those provisions must be
assessed solely by reference to the objectives pursued by the national authorities of
🌻 the Member State concerned and the degree of protection which they are intended to
provide. ( )
75. In Läärä and 🌻 Others, the Court also examined the question of whether,
to attain the objectives pursued by the Finnish law concerning the 🌻 operation of gaming
machines, it was preferable, rather than granting an exclusive operating right to the
licensed public body, to 🌻 adopt regulations imposing the necessary code of conduct on
the operators concerned.
76. The Court stated that that question was a 🌻 matter to be
assessed by the Member States, subject however to the proviso that the choice made in
that regard 🌻 must not be disproportionate to the aim pursued. ( ) The Court took the
view that that condition was fulfilled 🌻 because the body with the exclusive right to
operate the slot machines was a public-law association the activities of which 🌻 were
carried on under the control of the State and which was required to pay over to the
State the 🌻 amount of the net distributable proceeds received from the operation of the
slot machines. ( )
77. The Court added that, 🌻 while it was true that the sums thus
received by the State for public interest purposes could equally be obtained 🌻 by other
means, such as taxation of the activities of the various operators authorised to pursue
them within the framework 🌻 of rules of a non-exclusive nature; however, the obligation
imposed on the licensed public body, requiring it to pay over 🌻 the proceeds of its
operations, constituted a measure which, given the risk of crime and fraud, was
certainly more effective 🌻 in ensuring that strict limits were set to the lucrative
nature of such activities. ( )
78. In Zenatti, Gambelli and 🌻 Others, and Placanica and
Others, cited above, the Court spelt out more clearly the conditions which national
legislation must satisfy 🌻 in order to be justified with particular regard to the Italian
law granting a limited number of organisations fulfilling certain 🌻 criteria an exclusive
right to organise betting.
79. In Zenatti, the Court observed that the Italian
legislation in question sought to 🌻 prevent such gaming from being a source of private
profit, to avoid risks of crime and fraud and the damaging 🌻 individual and social
consequences of the incitement to spend which it represents and to allow it only to the
extent 🌻 to which it may be socially useful as being conducive to the proper conduct of
competitive sports. ( )
80. The 🌻 Court stated that such legislation could be justified
only if, from the outset, it reflected a concern to bring about 🌻 a genuine diminution in
gambling opportunities and if the financing of social activities through a levy on the
proceeds of 🌻 authorised games constituted only an incidental beneficial consequence and
not the real justification for the restrictive policy adopted. ( ) 🌻 The Court added that
it was for the national court to verify whether, having regard to the specific rules
governing 🌻 its application, the national legislation is genuinely directed to realising
the objectives which are capable of justifying it and whether 🌻 the restrictions which it
imposes do not appear disproportionate in the light of those objectives. ( )
81. In
Gambelli and 🌻 Others, cited above, the referring court stated that the Italian law on
betting had been amended in 2000 and that 🌻 the background documents of the amending
measure showed that the Italian Republic was pursuing a policy of substantially
expanding betting 🌻 and gaming at national level with a view to obtaining funds, while
also protecting existing licensees.
82. The Court stated that 🌻 restrictions on grounds
of consumer protection and the prevention of both fraud and incitement to squander on
gaming may be 🌻 justified only if they are appropriate for achieving those objectives,
inasmuch as they must serve to limit betting activities in 🌻 a consistent and systematic
manner. ( )
83. The Court added that, in so far as the authorities of a Member 🌻 State
incite and encourage consumers to participate in lotteries, games of chance and betting
to the financial benefit of the 🌻 public purse, the authorities of that State cannot
invoke public order concerns relating to the need to reduce opportunities for 🌻 betting
in order to justify measures such as those at issue in the main proceedings. ( )
84. In
view of 🌻 the aim of avoiding gaming licensees being involved in criminal or fraudulent
activities, the Court found that the Italian legislation 🌻 on invitations to tender
appeared disproportionate in so far as it prevented capital companies quoted on
regulated markets of other 🌻 Member States from obtaining licences to organise sporting
bets in Italy. The Court pointed out there were other means of 🌻 checking the accounts
and activities of such companies. ( )
85. In Placanica and Others, the Court was once
again confronted 🌻 with the Italian law on betting on sporting events after the Corte
Suprema di Cassazione (Italy) took the view that 🌻 the law in question was compatible
with Articles 43 and 49 EC. The Italian court found that that the true 🌻 purpose of the
Italian legislation was not to protect consumers by limiting their propensity to
gamble, but to channel betting 🌻 and gaming activities into systems that are
controllable, with the objective of preventing their operation for criminal
purposes.
86. The Court 🌻 stated that, in so far as that was the only aim of the
licensing system laid down by the Italian 🌻 law, a ‘policy of controlled expansion’ in
the betting and gaming sector may be entirely consistent with the objective of 🌻 drawing
players away from clandestine betting and gaming to activities which are authorised and
regulated. According to the Court, in 🌻 order to achieve that objective, authorised
operators must represent a reliable, but at the same time attractive, alternative to a
🌻 prohibited activity, and this may necessitate the offer of an extensive range of games,
advertising on a certain scale and 🌻 the use of new distribution techniques. ( )
87. As
the facts referred to by the Italian Government showed that clandestine 🌻 betting and
gaming were a considerable problem in Italy, the Court concluded that a licensing
system may constitute an efficient 🌻 mechanism enabling operators active in the betting
and gaming sector to be controlled with a view to preventing the operation 🌻 of those
activities for criminal or fraudulent purposes. ( )
88. However, the Court confirmed
that the law in question appeared 🌻 disproportionate in that it prevented companies whose
shares are quoted on the regulated markets of other Member States from being 🌻 able to
obtain licences for the business of sporting betting in Italy. ( )
B – National law
a)
Information provided by 🌻 the referring court
89. Article 2 of Decree-Law No 282/2003 of
8 November 2003 ( ) grants the Santa Casa the 🌻 monopoly for the operation by electronic
means of State gambling of a social nature, that is to say, of lotteries 🌻 and off-course
betting. The monopoly covers the entire national territory, including radioelectric
space, the internet and any other public telecommunications 🌻 network.
90. Under Article
11(1)(a) and (b) of Decree-Law No 282/2003 the following are illegal:
– the promotion,
organisation or operation by 🌻 electronic means of State gambling of a social nature
(that is to say, lotteries and off-course betting) in contravention of 🌻 the monopoly
rules;
– the advertising of those number lotteries, whether they take place in national
territory or not.
2. Additional information 🌻 provided by the Portuguese Government
91.
In Portugal games of chance and gambling are prohibited in principle. Nevertheless, the
State has 🌻 reserved the right to authorise, in accordance with the system it deems the
most appropriate, the operation of one or 🌻 more games, directly or through a body under
its control, or to grant the right to operate games to private 🌻 entities, whether
non-profit-making or not, by calls for tender.
a) The types of games
92. The Portuguese
legislation distinguishes between three categories 🌻 of games of chance and gambling,
namely casino games, lotteries, tombolas and publicity competitions, and games of lotto
and betting.
i) 🌻 Casino games
93. Casino games comprise table games such as roulette and
poker, as well as other types of games such 🌻 as bingo and slot machines.
94. The
operation of these games is regulated by Decree-law No 422/89 of 2 December 1989, 🌻 ( )
which was considered by the Court in Anomar and Others.
95. The right to operate casino
games is in 🌻 principle reserved by the State and it can be exercised only by
undertakings constituted in the form of limited companies 🌻 licensed by the State, by an
administrative contract. These games are permitted only in casinos in gaming zones
created and 🌻 defined by legislative measure.
96. There are at present nine casinos of
that type operating in Portugal and licences have recently 🌻 been granted for four
others.
ii) Lotteries, tombolas and publicity competitions
97. This category of games
comprises lotteries, tombolas, draws, publicity competitions, 🌻 general knowledge
contests and pastimes. They are subject to prior licensing by the Government, which is
granted case by case 🌻 on specific conditions.
98. In practice, this category of games
has no commercial impact in Portugal.
iii) Lotto games and betting
99. This 🌻 category of
games comprises all games in which the contestants predict the results of one or more
contests or draws. 🌻 These games are known in Portugal as ‘games of a social nature’ or
‘State games of a social nature’.
100. The 🌻 operation of these games is regulated by
Decree-Law No 84/85 of 28 March 1985. ( )
101. Under Article 1(1) of 🌻 that Decree-Law,
the right to promote lotto games and betting is reserved by the State, which grants the
Santa Casa 🌻 the exclusive right to organise and operate them throughout Portugal.
102.
According to the statements in the preambles to the measures 🌻 providing for this
exclusive right, the Portuguese Government considered that it could no longer overlook
the fact that such gaming 🌻 was carried on clandestinely, together with the excesses to
which it gave rise. The Government’s purpose was therefore to give 🌻 it a legal framework
so as to ensure that gaming was fair and to limit its excesses. The Government also
🌻 intended that the revenue from gaming, which was morally reprehensible in the culture
of that Member State, should not be 🌻 a source of private profit, but should serve to
finance social causes or causes of general interest.
103. Originally the Santa 🌻 Casa
organised contests called ‘Totobola’ and ‘Totoloto’. The former covers games in which
the contestants predict the results of one 🌻 or more sporting events. The latter covers
all games in which the contestants predict the results of drawing numbers by 🌻 lot .
104.
The range of games was subsequently extended in 1993 to include ‘Joker’; ( ) in 1994
‘Lotaria instantânia’, 🌻 an instant game with a scratch card, commonly called
‘raspadinha’; ( ) in 1998 ‘Totogolo’, ( ) and in 2004 🌻 ‘Euromilhões’, or European lotto.
( )
105. In 2003 the legal framework of lotto games and betting was adapted to take
🌻 account of technical developments enabling the games to be offered by electronic
medium, in particular the internet. These measures appear 🌻 in Decree-Law 282/2003 and
they aim, in substance, first, to license the Santa Casa to sell its products by
electronic 🌻 medium and, secondly, to extend the Santa Casa’s exclusive right of
operation to include games offered by electronic medium, in 🌻 particular the
internet.
106. Article 12(1) of Decree‑Law No 282/2003 sets the maximum and minimum
fines for the administrative offences laid 🌻 down in Article 11(1)(a) and (b) of that
Decree-Law. For natural persons, the fine is to be not less than 🌻 EUR 2 000 or more than
three times the total amount deemed to have been collected from organising the game,
🌻 provided that the triple figure is greater than EUR 2 000 but does not exceed a maximum
of EUR 44 🌻 890.
b) The regulations of the Santa Casa
107. The Santa Casa is a social
solidarity institution established on 15 August 1498. 🌻 It has always been devoted to
charitable work for assisting the most disadvantaged.
108. In Portugal, State games of
a social 🌻 nature are assigned to the Santa Casa. The ‘Lotaria Nacional’ (national
lottery), established by a royal edict of 18 November 🌻 1783, was contracted out to that
institution and the contract was renewed regularly. In 1961 the Santa Casa was granted
🌻 the exclusive right to organise other forms of lotto games and betting such as Totobola
and, in 1985, Totoloto.
109. The 🌻 activities of the Santa Casa are regulated by
Decree-Law No 322/91 of 26 August 1991. ( )
110. According to its 🌻 statutes, the Santa
Casa is a ‘legal person in the public administrative interest’, that is to say, a
private legal 🌻 person, recognised by the authorities as pursuing non-profit-making
objects of general interest.
111. The administrative organs of the Santa Casa consist
🌻 of a director, appointed by decree of the Prime Minister, and a board of management
whose members are appointed by 🌻 decrees of the members of the Government under whose
supervision the Santa Casa falls.
112. The operation of games of chance 🌻 falls within
the responsibilities of the Gaming Department of the Santa Casa, which has its own
administrative and control organs.
113. 🌻 The administrative organ of the Gaming
Department consists of the director of the Santa Casa, who is the ex officio 🌻 chairman,
and two deputy directors appointed by joint decree of the Minister of Employment and
Solidarity and the Minister of 🌻 Health.
114. Each type of game of chance organised by
the Santa Casa is instituted separately by a decree-law and the 🌻 entire organisation and
operation of the game, including the amount of stakes, the system for awarding prizes,
the frequency of 🌻 draws, the specific percentage of each prize, methods of collecting
stakes, the method of selecting authorised distributors, the methods and 🌻 periods for
payment of prizes, are governed by government regulation.
115. The members of the
competition committee, the draw committee and 🌻 the claims committee are mostly
representatives of the public authorities. The chairman of the claims committee, who
has a casting 🌻 vote, is a judge.
116. The Gaming Department has a budget and its own
accounts which are annexed to the budget 🌻 and the accounts of the Santa Casa, and as
such are under government supervision.
117. The Gaming Department has administrative
authority 🌻 powers to open and organise proceedings concerning offences of illegal
operation of games of chance in relation to which the 🌻 Santa Casa has the exclusive
rights, and to investigate such offences.
118. Article 14 of Decree-Law No 282/2003
confers upon the 🌻 Gaming Department the necessary administrative powers to impose fines
such as those imposed on the Liga and Baw.
119. An appeal 🌻 may be lodged against any
decision of the Gaming Department in contravention cases and any other decision with
effect outside 🌻 the Gaming Department, such as decisions concerning the purchase of
goods and services and the grant of authorisation to third 🌻 parties to sell tickets for
games of a social nature.
120. The Santa Casa has specific tasks in the areas of
🌻 protection of the family, mothers and children, help for unprotected minors at risk,
assistance for old people, social situations of 🌻 serious deprivation and primary and
specialised health care.
121. Under the law in force at the material time, the Santa
Casa 🌻 retains only 25% of the earnings from the various games. The balance is shared
among other public-interest institutions such as 🌻 associations of voluntary firemen,
private social solidarity institutions, establishments for the safety and
rehabilitation of handicapped persons, the cultural development 🌻 fund or social
projects. Accordingly 50% of the earnings from Totobola go towards the promotion and
development of football and 🌻 16% of the earnings from Totoloto serve to finance sports
activities.
III – The main proceedings and the question referred
122. The 🌻 Liga is a
private-law legal person with the structure of a non‑profit‑making association. It
brings together all the clubs taking 🌻 part in football competitions at professional
level in Portugal. It is responsible for the commercial operation of the competitions
it 🌻 organises.
123. Bwin is an on-line gaming undertaking with registered office in
Gibraltar. It offers games of chance on its Portuguese-language 🌻 website. It is governed
by the special legislation of Gibraltar on the regulation of games of chance and has
obtained 🌻 all the requisite licences from the Government of Gibraltar. Bwin has no
establishment in Portugal. Its servers for the on-line 🌻 service are in Gibraltar and
Austria. All bets are placed directly by the consumer on Bwin’s website or by some
🌻 other means of direct communication.
124. Bwin offers a wide range of on-line games of
chance covering sporting bets, lotto and 🌻 casino games such as roulette and poker.
Betting is on the results of football matches and other sports such as 🌻 rugby, formula 1
motor racing and American basketball.
125. The referring court states that the Liga and
Bwin are charged with 🌻 the following offences:
– concluding a sponsorship agreement for
four playing seasons starting in 2005/2006, under which Bwin is the institutional
🌻 sponsor of the First National Football Division, previously known as the ‘Super Liga’,
which is now called ‘Liga betandwin’;
– under 🌻 that agreement, Bwin acquired rights
allowing it to display the logo ‘betandwin’ on the sports kit worn by the players 🌻 of
the clubs whose teams take part in the Super Liga championship and to affix the logo
‘betandwin’ in the 🌻 stadiums of those clubs; in addition, the Liga’s internet site began
to include a reference and a link enabling access 🌻 to Bwin’s website;
– the Bwin site
makes it possible to place sporting bets electronically, whereby the participants
predict the result 🌻 of football matches taking place each day in the Super Liga, and of
football matches abroad, in order to win 🌻 money prizes; the same site also makes it
possible to play lottery games electronically, in which the participants predict the
🌻 results of drawing numbers by lot.
126. The directors of the Gaming Department of the
Santa Casa fined the Liga and 🌻 Bwin EUR 75 000 and EUR 74 500 respectively for
promoting, organising and operating electronically, as accomplices, State gaming of 🌻 a
social nature, that is to say, off-course betting, and for advertising such gaming
electronically, contrary to the monopoly provided 🌻 for by national law.
127. The Liga
and Bwin brought an action for the annulment of those decisions on the basis 🌻 of
Community rules and case-law.
128. The Tribunal de Pequena Instância Criminal do Porto
(Portugal) decided to stay the proceedings and 🌻 to refer the following question to the
Court for a preliminary ruling:
‘In essence, the question is whether the monopoly
granted 🌻 to the Santa Casa, when relied on against [Bwin], that is to say, against a
provider of services established in 🌻 another Member State in which it lawfully provides
similar services, which has no physical establishment in Portugal, constitutes an
impediment 🌻 to the free provision of services, in breach of the principles of freedom to
provide services, freedom of establishment and 🌻 the free movement of payments enshrined
in Articles 49 [EC], 43 [EC] and 56 [EC].
This court seeks therefore to know 🌻 whether it
is contrary to Community law, in particular to the abovementioned principles, for rules
of domestic law such as 🌻 those at issue in the main proceedings first to establish a
monopoly in favour of a single body for the 🌻 operation of lotteries and off-course
betting and then to extend that monopoly to “the entire national territory, including …
the 🌻 internet”.’
IV – Analysis
A – Admissibility of the question referred
129. The
question from the national court seeks to establish whether its 🌻 national law, whereby
the exclusive right conferred on a single non-profit-making entity controlled by the
State to organise and operate 🌻 lotteries and off-course betting in the whole of
Portuguese territory is extended to all electronic means of communication, in
particular 🌻 the internet, is compatible with Community law.
130. The Italian,
Netherlands and Norwegian Governments and the Commission dispute or question the
🌻 admissibility of the question on the ground that the order for reference does not
provide sufficient information on the nature 🌻 and the aims of the Portuguese legislation
applicable to the main proceedings.
131. I do not think the question can be 🌻 ruled
inadmissible.
132. The national court’s description of its national legislation makes
it clear that it, first, grants the Santa Casa 🌻 an exclusive right to organise and
operate lotteries and off-course betting on the internet and, second, provides for
penalties for 🌻 operators who disregard that monopoly. Likewise, the account of the facts
describes the issue in the main proceedings. Furthermore, the 🌻 order for reference shows
that the national court is uncertain as to whether the Portuguese legislation is
compatible with Community 🌻 law in so far as the former prevents an operator legally
pursuing its activities in a Member State of the 🌻 European Union from providing services
in Portugal.
133. No doubt, in the light of the criteria developed in the Court’s
case-law 🌻 on the basis of which the compatibility with Community law of a national
measure concerning games of chance and betting 🌻 must be assessed, I could have expected
the national court to give a fuller account of its domestic law and 🌻 the implementation
thereof, with regard to the Santa Casa’s monopoly, together with the reasons why the
monopoly has been extended 🌻 to games of chance and gambling on the internet. It would
also have been desirable for the national court to 🌻 state the reasons why the Court’s
previous judgments did not answer those questions and did not enable the national court
🌻 to give judgment in the main proceedings.
134. However, the lack of information in the
order for reference does not justify 🌻 dismissing the question as inadmissible.
135. The
question concerns the interpretation of Community law as it is necessary to interpret
the 🌻 articles of the Treaty establishing the freedoms of movement. The question is
relevant to the outcome of the main proceedings 🌻 because, if the relevant freedom of
movement were interpreted by the Court as meaning that it precludes the grant of
🌻 exclusive rights of that kind, the action brought by the Liga and Bwin would have to be
ruled well-founded.
136. Finally, 🌻 the information provided by the national court is
sufficient to enable the Court to give a helpful reply, at least 🌻 to the question
whether the grant of exclusive rights to a single entity in relation to the
organisation and operation 🌻 of games of chance and gambling on the internet is, in
principle or necessarily, contrary to Community law.
137. 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 Community law, the Court of Justice 🌻 is, in principle,
bound to give a ruling. ( )
138. It is true that the Court has also held that, 🌻 in
exceptional circumstances, it can examine the conditions in which the case was referred
to it by the national court 🌻 It is regularly observed in judgments giving preliminary
rulings that ‘the spirit of cooperation which must prevail in [such] proceedings
🌻 requires the national court for its part to have regard to the function entrusted to
the Court of Justice, which 🌻 is to contribute to the administration of justice in the
Member States and not to give opinions on general or 🌻 hypothetical questions’. ( )
139.
Accordingly, the Court has held that it has no jurisdiction to give a preliminary
ruling on 🌻 a question submitted by a national court where it is quite obvious that the
interpretation or the assessment of the 🌻 validity of a provision of Community law sought
by that court bears no relation to the actual facts of the 🌻 main action or its purpose,
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. ( )
140. The question at present
before the Court 🌻 does not fall within any of those cases.
141. I also wish to point out
that, in spite of the lack 🌻 of information from the national court concerning the nature
and the purpose of its national law, nine Member States other 🌻 than the Portuguese
Republic have been able to submit written observations, in addition to the latter, the
parties to the 🌻 main proceedings and the Commission.
142. It transpires, however, that
the Liga and Bwin, as well as the interveners, in particular 🌻 the Portuguese Government,
have set out in detail the substance and the aims of the legislation in question and
that 🌻 these matters were discussed at length in the oral procedure. Therefore the Court
could go further than examining only the 🌻 question whether a national measure granting a
single entity the exclusive right to offer off-course betting on the internet is 🌻 in
principle compatible with Community law.
143. The Italian Government also argues that
the question referred is inadmissible on the ground 🌻 that the national court is
requesting the Court of Justice to give a ruling on the compatibility of its domestic
🌻 law with Community law.
144. No doubt, as the Italian Government says, and in
accordance with settled case-law, in accordance with 🌻 the division of responsibilities
under the cooperative arrangements established by Article 234 EC, the interpretation of
provisions of national law 🌻 is a matter for the national courts, not for the Court of
Justice, and the Court has no jurisdiction, in 🌻 proceedings brought on the basis of that
article, to rule on the compatibility of national rules with Community law. ( 🌻 )
145.
However, even if the question referred has to be construed in the way suggested by the
Italian Government, it 🌻 would still not be inadmissible. Where the Court is expressly
questioned on the compatibility of a national provision with Community 🌻 law, the Court
rewords the question in accordance with its powers and points out that it does have
jurisdiction to 🌻 provide the national court with all the guidance as to the
interpretation of Community law necessary to enable that court 🌻 to rule on the
compatibility of those national rules with Community law. ( )
146. I therefore propose
that the Court 🌻 should find that the question from the national court is admissible.
B –
Substance of the case
147. According to the information 🌻 from the national court, the
provisions of Article 11(1)(a) and (b) of Decree-Law No 282/2003 prohibit, first, the
organisation and 🌻 operation of lotteries and off-course betting on the internet,
contrary to the exclusive right conferred upon the Santa Casa and, 🌻 second, advertising
them on line, contrary to that right.
148. It is also clear that the Liga and Bwin were
fined 🌻 EUR 75 000 and EUR 74 500 respectively for, first, organising and operating
off-course betting on the internet, contrary to 🌻 the Santa Casa’s exclusive right, and,
second, advertising such betting.
149. Consequently it seems to me that the
compatibility of the 🌻 national law in question with Community law must be assessed by
reference to two sets of provisions. First, in so 🌻 far as it confers upon the Santa Casa
an exclusive right to offer lotteries and betting on the internet and 🌻 prevents any
other service provider established within the Union from offering such services on line
in Portugal, the legislation in 🌻 question may be covered by Directive 98/34. Second, in
so far as it prohibits all advertising for lotteries and off-course 🌻 betting organised
contrary to the Santa Casa’s exclusive right, such legislation may fall within the
ambit of Article 49 EC.
1. 🌻 Application of Directive 98/34
150. It is necessary to
determine whether Article 1(11) of Directive 98/34 must be interpreted as meaning 🌻 that
a national measure whereby the exclusive right to organise and operate lotteries and
off-course betting in the whole of 🌻 national territory is extended to all electronic
means of communication, in particular the internet, is a technical rule within the
🌻 meaning of that provision.
151. In its written observations, the Commission argued that
the legislation in question was within the ambit 🌻 of Directive 98/34.
152. The
interveners, which were asked state their position on that point in the oral procedure,
took different 🌻 positions. The Liga and Bwin agree with the Commission’s analysis.
153.
The Portuguese Government points out that Directive 93/84 was not 🌻 relied upon by the
Liga and Bwin in the context of the main proceedings and that the national court raised
🌻 no question concerning the directive. The Government adds that it is for the national
court to ascertain the Community law 🌻 applicable to the dispute which is to be
determined and concludes that the Directive is not relevant in the present 🌻 case.
154.
In the alternative, the Portuguese Government claims that Directive 98/34 did not
require Portugal to notify the Commission of 🌻 the legislation in question. The
Government notes that games of chance and gambling were excluded from the ambit of
Directive 🌻 2000/31 on electronic commerce and Directive 2006/123 on services in the
internal market.
155. The Danish Government, supported by the Greek 🌻 Government, takes
the same view as the Portuguese Government. In addition, it states that the disputed
legislation, which prohibits the 🌻 operation of a certain activity in the territory of a
State, is similar to national law which makes an occupational 🌻 activity conditional on
the grant of authorisation and that, according to the case-law, such legislation does
not constitute a technical 🌻 regulation. The Danish Government submits that that term is
interpreted by the case-law as meaning specifications defining the characteristics of
🌻 products. ( )
156. The Greek Government also considers that a national law providing
for a State monopoly of games of 🌻 chance and gambling does not fall within the scope of
Directive 98/34.
157. I do not agree with the position of 🌻 those governments. First of
all, I shall show that it is open to the Court to interpret the provisions of 🌻 Directive
98/34 although the national court’s question does not relate to it. Next, I shall set
out the reasons why, 🌻 in my view, the disputed legislation falls within the scope of the
Directive. I shall also describe the consequences of 🌻 failure to give notice of such
legislation. Finally, in view of the Member States’ observations on the relevance of
Directive 🌻 98/34 for the outcome of the main proceedings, it seems to me useful to
mention that the judgment to be 🌻 given binds the national court with regard, inter alia,
to the interpretation of the Directive, as the case may be.
a) 🌻 The Court’s opportunity
to interpret Directive 98/34, although the national court does not refer to it
158. The
fact that the 🌻 Court may interpret Directive 98/34 although the national court has not
submitted a question on it is clear from settled 🌻 case-law. Where the Court considers
that the national court has not questioned it on the provision of Community law
applicable 🌻 in the main proceedings, it examines of its own motion the meaning of that
provision. Accordingly, as has often been 🌻 said, in order to provide a satisfactory
answer to the national court which has referred a question to it, the 🌻 Court of Justice
may deem it necessary to consider provisions of Community law to which the national
court has not 🌻 referred in its question. ( )
159. It follows that where, as in the
present case, the national court has questioned 🌻 the Court on the meaning of the Treaty
articles establishing the freedoms of movement, the Court may reply by interpreting 🌻 a
directive which specially regulates the facts of the main proceedings. ( )
b) The
contested provisions fall within the scope 🌻 of Directive 98/34
160. Contrary to the
Member States which have stated their position on this question, I am of the 🌻 opinion,
like the Liga and Bwin as well as the Commission, that the contested provisions are
‘technical regulations’ within the 🌻 meaning of Directive 98/34 in so far as they
prohibit any other operator from offering lotteries and off-course betting on 🌻 the
internet in Portugal.
161. I base my position on, first, the definitions of ‘service’
and ‘technical regulation’ in the directive.
162. 🌻 Thus an ‘Information Society
service’, within the meaning of Article 1, point 2, of Directive 98/34, is any service
normally 🌻 provided for remuneration, at a distance, by electronic means and at the
individual request of a recipient of services. However, 🌻 it is clear from the nineteenth
recital of the preamble to the directive that it is also necessary to refer 🌻 to the
definition of ‘services’ in Article 50 EC, as interpreted in the Court’s case-law.
163.
As we have already seen, 🌻 the case-law shows that a provider established in one Member
State who offers by internet, without moving from that State, 🌻 games on line to
recipients established in another Member State provides services within the meaning of
Article 50 EC. ( 🌻 )
164. Next, Article 1(11) of Directive 98/34 expressly states that
the term ‘technical regulation’ covers rules prohibiting the provision or 🌻 use of a
service. Therefore, contrary to the position adopted by several Member States, since
the ambit of Directive 98/34 🌻 was extended to Information Society services, ‘technical
regulation’ has not been confined to specifications defining the characteristics of
products, as 🌻 was the case under Directive 83/189/EEC, ( ) as interpreted in the
judgments cited above, CIA Security International, ( )van 🌻 der Burg, ( ) and Canal
Satélite Digital, ( ) to which those States refer.
165. The contested provisions, which
give 🌻 the Santa Casa an exclusive right to organise and operate lotteries and off-course
betting on the internet in the whole 🌻 of Portugal and which lay down penalties for any
operator which disregards that exclusive right, does have the effect of 🌻 prohibiting a
provider of games on the internet from providing its services.
166. Having regard to
the abovementioned definitions, the provisions 🌻 in question constitute a ‘technical
regulation’ within the meaning of Article 1(11) of Directive 98/34.
167. In the second
place, this 🌻 conclusion seems to me to accord with the reasons why the ambit of the
directive was extended to Information Society 🌻 services.
168. It is clear from the
preamble to Directive 98/48 that the Community legislature aimed to extend to specific
services 🌻 of that kind the system of transparency and supervision originally provided
for in relation only to goods, so as to 🌻 avoid the barriers to the free movement of such
services which could be caused by national regulations.
169. The application of 🌻 the
mandatory notification system provided for by Directive 98/34 to such regulations does
not mean that they are contrary to 🌻 Community law.
170. As we have seen, Directive 98/34
aims only to establish a system of preventive control. First, by requiring 🌻 Member
States to notify the Commission of any draft technical regulation, the Community
legislature asks them to carry out a 🌻 prior detailed check of its conformity with
Community law. Consequently the directive has the effect of making it clear that, 🌻 if
the proposed regulation impedes the free movement of goods or the freedom to provide
Information Society services, the Member 🌻 State must be able to justify it in conformity
with the conditions laid down by the case-law.
171. The notification system 🌻 provided
for by Directive 98/34 then enables the Commission and the other Member States to
examine the draft regulation to 🌻 see whether it creates barriers. If so, the other
Member States may propose that the author of the draft should 🌻 amend it. The Commission
for its part may propose or adopt joint measures regulating the topic which is the
subject 🌻 of the proposed measure.
172. Such a system reconciles the sovereign power of
the Member States to adopt technical regulations in 🌻 fields where they have not been
harmonised with the obligation they have undertaken to each other in the Treaty to
🌻 establish a common market, that is to say, a space within which goods and services in
particular circulate freely.
173. It 🌻 follows that Directive 98/34 is really effective
only if all technical regulations are notified, ( ) including those relating to 🌻 games
of chance and gambling, because these constitute an economic activity and are covered
by the freedom of establishment and 🌻 the freedom to provide services.
174. In addition,
we find that, where the Community legislature wished to exclude games of chance 🌻 and
gambling from a measure relating to services, such as Directive 2000/31 on electronic
commerce and Directive 2006/123 on services 🌻 in the internal market, it provided for
such exclusion expressly. However, Directive 98/34 contains no provision excluding
technical regulations concerning 🌻 games of chance and gambling from its ambit.
175. In
the third place, this reasoning seems to be in conformity with 🌻 the Court’s position in
Commission v Greece, concerning the Greek law prohibiting the use of games on computers
in undertakings 🌻 providing internet services. The Court found that such measures must be
considered to be ‘technical regulations’ within the meaning of 🌻 Article 1(11) of
Directive 98/34. ( )
176. In the abovementioned judgment the Court found that a measure
of a Member 🌻 State such as that in issue in the main proceedings, which prohibits access
to internet games, concerns access to or 🌻 the provision of Information Society services
and is therefore within the ambit of Directive 98/34.
177. Consequently I propose that
the 🌻 Court’s reply to the national court should be that Article 1(11) of Directive 98/34
must be interpreted as meaning that 🌻 a measure of a Member State whereby an exclusive
right to organise and operate lotteries and off-course betting in the 🌻 entire territory
of that State is extended to all means of electronic communication, in particular the
internet, constitutes a ‘technical 🌻 regulation’ within the meaning of that provision. (
)
c) The consequences of failing to give notice of the contested measures
178. 🌻 Article
8(1) of Directive 98/34 requires the Member States to notify the Commission of any
draft technical regulation. ( ) 🌻 Article 9 requires them to postpone the adoption of any
such regulation for such period as the Commission may determine.
179. 🌻 According to
those provisions, the draft Decree-Law No 282/2003 which, first, extends the Santa
Casa’s exclusive right to operate games 🌻 offered by electronic medium, in particular the
internet, and, secondly, provides for administrative fines on operators who infringe
that right, 🌻 ought to have been notified to the Commission.
180. In its written
observations, the Commission stated that it was not notified 🌻 of the draft Decree-Law.
The Portuguese Government confirmed that it had not notified the Commission.
181. In
CIA Security International, the 🌻 Court described the consequences of failure to notify
the Commission. The Court took the view that the obligations of notification 🌻 and
postponement laid down in Articles 8 and 9 of Directive 83/189 are unconditional and
sufficiently precise to be relied 🌻 on by individuals before national courts. ( ) A
technical regulation which has not been notified is therefore inapplicable to
🌻 individuals and national courts must decline to apply it. ( )
182. That case-law can be
applied to Articles 8 and 🌻 9 of Directive 98/34 as they in similar terms to those of
Directive 83/189.
183. As Directive 98/34 aims in particular 🌻 to protect the freedom to
provide Information Society services, an operator such as Bwin, established in
Gibraltar, has a right 🌻 to avail itself of those precise and unconditional
provisions.
184. Gibraltar is a European territory for whose external relations the
United 🌻 Kingdom is responsible. Consequently the Treaty provisions are applicable to it
in accordance with Article 299(4) EC, subject to the 🌻 exclusions provided for in the Act
concerning the conditions of accession of Denmark, Ireland and the United Kingdom and
the 🌻 adjustments to the treaties. ( )
185. The Court has concluded from the Act that the
Treaty rules on free movement 🌻 of goods and the rules of secondary Community legislation
intended, as regards free circulation of goods, to ensure approximation of 🌻 the laws of
the Member States, do not apply to Gibraltar. ( )
186. However, those exclusions must,
in my view, 🌻 be deemed exceptions to the principle laid down in Article 299(4) EC that
the provisions of the Treaty apply to 🌻 a European territory such as Gibraltar. Therefore
the Treaty provisions on the freedom to provide services and the secondary legislation
🌻 adopted to ensure the establishment of that freedom apply to Gibraltar. To prove this,
I wish to cite the judgments 🌻 in actions brought by the Commission against the United
Kingdom for failing to implement such directives on its territory. ( 🌻 )
187. I conclude
from this that an operator such as Bwin, established in Gibraltar, has a right to plead
Articles 🌻 8 and 9 of Directive 98/34 in so far as they relate to technical regulations
concerning Information Society services.
188. The 🌻 fact that the provisions in question
are included in a measure which also relates to the free movement of goods 🌻 does not
seem to me inconsistent with that conclusion. A technical regulation may be clearly
connected with the free movement 🌻 of goods or the freedom to provide Information Society
services on the basis of the delimitation of the respective fields 🌻 to which those
freedoms apply, as defined by the Court.
189. In conformity with the position taken by
the Court in 🌻 CIA Security International, if the Commission was not duly notified of the
national provisions in question, in so far as, 🌻 first, they grant the Santa Casa an
exclusive right to organise and operate lotteries and off-course betting on the
internet 🌻 and, second, they provide for administrative fines on providers of services
who, in breach of that right, offer internet games 🌻 to persons residing in Portugal,
those national provisions are not applicable as against Bwin and the national court
must decline 🌻 to apply them.
190. This conclusion should also apply to the Liga, which
was fined as Bwin’s accomplice for organising and 🌻 operating off-course betting by
electronic means.
191. The national court, which alone has jurisdiction to establish
the facts in the main 🌻 proceedings, will have to determine whether the draft Decree-Law
282/2003 which aims, in substance, to extend the Santa Casa’s exclusive 🌻 right to
operate games offered by electronic media, in particular the internet, and to impose a
penalty in the form 🌻 of a fine for infringing that exclusive right, was notified to the
Commission in accordance with Article 8 of Directive 🌻 98/34.
192. The national court
will also have to draw the appropriate conclusions with regard to the fines imposed on
the 🌻 Liga and Bwin as the fines relate to the organisation and operation of off-course
betting on the internet, in breach 🌻 of the Santa Casa’s exclusive right.
d) The effects
of the Court’s judgment for the referring court
193. The replies given by 🌻 several
Member States in the course of the hearing to the question concerning the relevance of
Directive 98/34 to the 🌻 outcome of the main proceedings could be understood as meaning
that the judgment which will give a preliminary ruling would 🌻 not, according to those
States, be binding on the referring court in so far as it relates to the interpretation
🌻 of the abovementioned directive.
194. I take the opposite view. Judgments giving a
preliminary ruling are binding on the referring court 🌻 even where the Court of Justice
rules on a Community-law measure to which the question from the national court does 🌻 not
refer.
195. I base this conclusion on, first, the relationship between Community law
and national law and, secondly, the function 🌻 of the preliminary ruling procedure.
196.
On the first point, as the Court observed in van Gend en Loos ( ) 🌻 and Costa ( ) by
signing and ratifying the Treaty establishing the European Economic Community, the
Member States agreed that 🌻 the Treaty and the measures adopted on the basis thereof
should form part of their national law, should take precedence 🌻 to any contrary national
rule, whatever it may be, and should be intended to create rights directly in favour of
🌻 individuals.
197. They also undertook to take all appropriate measures to ensure the
effective application of Community law and that obligation 🌻 must be accepted by their
judicial authorities. Consequently national courts have an obligation to maintain the
rights conferred by measures 🌻 of the Community legal order.
198. The national courts
must of their own motion refuse to apply any provision of national 🌻 legislation
conflicting with directly applicable Community law, without having to request or await
the prior setting-aside of such legislation in 🌻 the internal system. ( ) If a Community
measure is not directly applicable, the national court must interpret the whole 🌻 of its
national law so far as possible so as to achieve the result intended by that measure,
in accordance 🌻 with the requirement of interpretation in conformity with Community law.
( )
199. Therefore the national court’s task is to ensure 🌻 the effective application of
Community law.
200. It is true that the national court discharges those obligations in
conformity with its 🌻 domestic rules of procedure, in accordance with the principle of
procedural autonomy, subject to the principles of equivalence and effectiveness 🌻 by
virtue of which, first, those rules must not be less favourable than those applicable
to maintain the rights conferred 🌻 by domestic law and, second, they must not be framed
in such a way as to render impossible in practice 🌻 or excessively difficult the exercise
of rights conferred by Community law. ( )
201. Where, in the context of a dispute
🌻 before a national court, the parties have not invoked the relevant Community rule, it
may happen that that rule is 🌻 not applied, as the Court’s case-law concerning the
significance of the principles of equivalence and effectiveness stands at present.
202.
According 🌻 to the Court’s case-law, a national court must raise of its own motion the
relevant point of Community law where, 🌻 under national law, it must or may do so in
relation to a binding rule of national law. ( ) 🌻 On the other hand, it is not obliged to
do so where it has no such obligation or option under 🌻 national law and where the
parties were given a genuine opportunity to raise a plea based on Community law in 🌻 the
course of the proceedings. ( ) Furthermore, national courts are not required to raise
of their own motion a 🌻 plea alleging infringement of Community provisions where
examination of that plea would oblige them to go beyond the ambit of 🌻 the dispute as
defined by the parties. ( )
203. However, those limits to the application of Community
law cannot be 🌻 transposed where the Court, in the context of preliminary ruling
proceedings, examines of its own motion the rule applicable to 🌻 the facts of the main
proceedings.
204. The object of the preliminary ruling procedure is to secure the
uniform interpretation of 🌻 Community law by national courts and tribunals. ( ) Uniform
interpretation can be secured only if the Court’s judgments are 🌻 binding on national
courts. As the Court observed in Benedetti, ( ) a preliminary ruling is binding on the
national 🌻 court as to the interpretation of the Community provisions and acts in
question.
205. The binding nature of the ruling is 🌻 also the corollary of the national
courts’ obligation to ensure the effective application of Community law.
206. This
reasoning is confirmed 🌻 by the third paragraph of Article 234 EC, which states that a
reference for a preliminary ruling is mandatory where 🌻 a question on the interpretation
of Community law arises before a court or tribunal against whose decisions there is no
🌻 judicial remedy under national law. In order to prevent Community law from being
infringed, a court against whose decisions there 🌻 is no judicial remedy under national
law, which is by nature the last judicial body before which individuals may assert 🌻 the
rights conferred on them by Community law, is required to make a reference to the Court
of Justice. ( 🌻 )
207. This reasoning is supported by the judgment in a case where it was
held that a manifest infringement of 🌻 Community law by a court adjudicating at last
instance was likely to give rise to liability on the part of 🌻 the State, ( ) and also
where an action for failure to fulfil obligations could be brought against a Member
🌻 State by reason of a national judicial interpretation contrary to Community law, where
that interpretation is confirmed or not disowned 🌻 by the supreme court. ( )
208.
Consequently the object of the preliminary ruling procedure itself is to ensure the
effective 🌻 application of Community law. That is why, contrary to the submissions of the
Portuguese Government, the Court cannot be bound 🌻 by the national court’s assessment
with regard to the Community provisions applicable to the facts of the main
proceedings. The 🌻 Court’s task is to give the national court a reply which is of help to
the outcome of the dispute 🌻 which it must determine, that is to say, which enables it to
perform its function of ensuring the effective application 🌻 of Community law.
209. In
addition, the Court’s examination of a point of Community law of its own motion which
was 🌻 not raised by the national court would be of little use if the preliminary ruling,
in so far it related 🌻 to that point, were not binding on that court.
210. The fact that
the parties to the main proceedings did not 🌻 refer, before the national court, to the
provision of Community law examined by the Court of its own motion is 🌻 not an obstacle
to the binding effect of the preliminary ruling in so far as the parties had an
opportunity 🌻 to make their observations on that provision known in the course of the
preliminary ruling procedure. It must be observed 🌻 that, in the present case, the
parties were asked by the Court, prior to the hearing, to submit in the 🌻 course of the
hearing their observations on the relevance of Directive 98/34 to the outcome of the
main proceedings.
211. It 🌻 follows that preliminary rulings are, in my opinion,
necessarily binding where the Court interprets a provision of Community law to 🌻 which
the national court has not referred.
212. Consequently I propose that the Court’s reply
to the national court should, in 🌻 addition, rule that a preliminary ruling binds the
referring court even in so far as the ruling relates to a 🌻 provision of Community law
that was not referred to in the national court’s question.
2. The compatibility of the
national legislation 🌻 in issue with the freedoms of movement
213. Even if the Court
concurs with my reasoning concerning the relevance of Directive 🌻 98/34 to the present
case and the consequences of failure to notify the Commission, an examination of the
compatibility of 🌻 the national law in question with the freedoms of movement, in so far
as it prohibits advertising of on-line games 🌻 organised and operated in breach of the
Santa Casa’s exclusive right, does not appear to be manifestly irrelevant to the
🌻 outcome of the main proceedings.
214. It is for the national court to determine whether
the fact that Decree-Law No 282/2003, 🌻 in so far as it grants the Santa Casa an
exclusive right to organise and operate lotteries and off-course betting 🌻 on the
internet, is unenforceable as against the Liga and Bwin, must lead to setting aside the
whole of the 🌻 single fine imposed on each of them or whether the amount of the fine
should be divided between what is 🌻 due on account of organising on-line games and what
is due on account of advertising them.
215. The question therefore is 🌻 whether a
national measure prohibiting advertising for on-line games organised and operated in
breach of an exclusive right conferred on 🌻 a single non‑profit‑making entity, is
inconsistent with the freedom to provide services.
216. To reply to that question, it
would certainly 🌻 appear to be helpful to consider the question from the referring court
as to whether its national legislation granting the 🌻 Santa Casa an exclusive right to
organise and operate in Portugal lotteries off‑course betting on the internet is
compatible with 🌻 the freedoms of movement. If that exclusive right is consistent with
Community law, the question whether the prohibition of advertising 🌻 lotteries and
off-course betting organised and operated in breach of that right is compatible with
Community law no longer arises.
217. 🌻 The national court’s question seeks to establish
whether its national legislation which provides that the Santa Casa’s exclusive right
to 🌻 organise and operate lotteries and off-course betting in the entire State territory
is extended to all means of electronic communication, 🌻 in particular the internet, is
inconsistent with Community law and, in particular, the freedom to provide services,
the freedom of 🌻 establishment and the free movement of capital and payments, as laid
down in Articles 43 EC, 49 EC and 56 🌻 EC.
218. At this stage of the discussion, it could
be asked whether the freedoms of movement are relevant to the 🌻 main proceedings in view
of the fact that the Santa Casa has been granted a monopoly of the operation of
🌻 lotteries and off-course betting on the internet on grounds of consumer protection and
safeguarding public order against the adverse effect 🌻 of such gaming. A national
monopoly based on such grounds could be regarded as pursuing a public interest aim. (
🌻 )
219. It could therefore have been asked whether the Santa Casa could avail itself of
Article 86(2) EC, which states 🌻 that undertakings entrusted with the operation of
services of general economic interest are to be subject to the rules of 🌻 the Treaty in
so far as the application of such rules does not obstruct the performance, in law or in
🌻 fact, of the particular tasks assigned to them.
220. However, neither the referring
court nor the Portuguese Government have mentioned those 🌻 provisions. Assuming that they
had done so, I do not think an examination of the present case from the viewpoint 🌻 of
Article 86(2) EC would have led to a different result from the reply which I am going
to propose 🌻 should be given by the Court to the question from the referring court.
221.
In view of the case-law on the 🌻 implications of Article 86(2) EC, the exception,
provided for by that Article, to the application of the rules of the 🌻 Treaty aiming to
establish a common market can apply only if the task of the entity holding the monopoly
makes 🌻 it necessary to set aside those rules. In other words, the applicability of the
exception is subject to proof that 🌻 application of the rules would make it impossible to
perform that task. ( )
222. I believe that examination of that 🌻 condition would have led
to consideration of the adequacy of the disputed legislation for achieving its aims and
of its 🌻 proportionality comparable with the examination which I shall make in the
context of its compatibility by reference to the relevant 🌻 freedom of movement.
223. I
shall show that the disputed legislation should, with regard to the facts of the main
proceedings, 🌻 be examined by reference to Article 49 EC because it constitutes a
restriction within the meaning of that Article. I 🌻 shall then consider whether such
legislation can be justified.
a) The relevant freedom of movement
224. Like the Liga,
Bwin, the Netherlands, 🌻 Austrian and Portuguese Governments and also the Commission, I
am of the opinion that the compatibility of the legislation in 🌻 question with Community
law must be examined by reference to the articles of the Treaty concerning the freedom
to provide 🌻 services, and by reference to them alone.
225. It is clear from the
information provided by the referring court that Bwin 🌻 is established in Gibraltar and
that it carries on its activities in Portugal by means of the internet. We have 🌻 already
seen that it has been held that a provider established in one Member State who offers
by internet, without 🌻 moving from that State, games on line to recipients established in
another Member State, provides services within the meaning of 🌻 Article 50 EC. ( )
226.
It is true that the contested provisions, in so far as they reserve such activities 🌻 for
the Santa Casa, are also capable of constituting a restriction of the freedom of
establishment. However, as Bwin has 🌻 not sought to establish itself in Portugal, that
freedom of movement is not relevant to the outcome of the main 🌻 proceedings. The Belgian
Government’s claim that the Liga acts de facto as Bwin’s intermediary does not refute
this conclusion.
227. It 🌻 must be borne in mind that the freedom of establishment
confers upon companies or firms formed in accordance with the 🌻 law of a Member State and
having their registered office, central administration or principal place of business
within the Community, 🌻 the right to exercise their activity in the Member State
concerned through a subsidiary, a branch or an agency, ( 🌻 ) that is to say, a secondary
establishment controlled by the company or firm in question. However, the agreement
between 🌻 the applicants in the main proceedings does not have the object or effect of
placing the Liga under Bwin’s control 🌻 or of making it a secondary establishment of
Bwin.
228. Finally, with regard to the free movement of capital and payments, 🌻 it cannot
be denied that the contested provisions are capable of restricting payments between
persons residing in Portugal and Bwin. 🌻 However, that is only a consequence of the fact
that the latter is prohibited from supplying on-line games services to 🌻 persons residing
in Portuguese territory.
229. As the Commission correctly observes, given that the
restrictive effects of national legislation on the 🌻 free movement of payments are merely
an inevitable consequence of the restriction imposed on the provision of services, it
is 🌻 not necessary to consider whether that legislation is compatible with Article 56 EC.
( )
230. I therefore propose that Court 🌻 should construe the referring court’s question
in the following way: must Article 49 EC be interpreted as meaning that it 🌻 precludes
legislation of a Member State whereby the exclusive right to organise and operate
lotteries and off-course betting in the 🌻 entire territory of that State conferred on a
single non-profit-making entity controlled by that State is extended to all means 🌻 of
electronic communication, in particular the internet?
b) The existence of a
restriction
231. There appears to be no doubt, and the 🌻 Portuguese Government does not
deny, that the provisions in question constitute a restriction of the freedom to
provide services.
232. Those 🌻 provisions prohibit a provider of on-line games
established in a Member State other than the Portuguese Republic from offering
lotteries 🌻 and off‑course betting on the internet to consumers residing in the latter
State. As we have seen, Article 49 EC 🌻 requires the elimination of measures prohibiting
the activities of a provider of services established in another Member State where he
🌻 lawfully provides similar services. Moreover, Article 49 EC is for the benefit of both
providers and recipients of services. ( 🌻 )
233. Finally, it has already been held that
legislation of a Member State prohibiting an undertaking established in another Member
🌻 State collecting bets from offering its services on the internet to recipients
established in the first State constitutes a restriction 🌻 within the meaning of Article
49 EC. ( )
c) The justification for the restriction
234. A restriction such as that
provided 🌻 for by the legislation in question conforms with Community law if it is
justified by an overriding reason relating to 🌻 the public interest, if it is appropriate
for ensuring the attainment of the aim which it pursues and if it 🌻 does not exceed what
is necessary for attaining it. In any event, it must not be applied in a discriminatory
🌻 way.
235. In accordance with that principle common to all economic activities which
have not been harmonised, the Member State responsible 🌻 for the restriction in question
must demonstrate that it is necessary in order to achieve the declared objective, and
that 🌻 that objective could not be achieved by less restrictive measures. ( )
i)
Arguments of the parties
236. The Liga and Bwin 🌻 assert that the Santa Casa’s exclusive
right to offer lotteries and off-course betting on the internet to consumers residing
in 🌻 Portuguese territory amounts to the complete closure of the market for on-line games
in that State, which constitutes the most 🌻 serious breach of the freedom to provide
services. They claim that the restriction is not justified.
237. According to the Liga
🌻 and Bwin, Portugal ought to have demonstrated, first, that the problem alluded to by
the restrictive measure is really a 🌻 serious problem in its territory, second, that that
measure is capable of remedying the problem and, finally, that there was 🌻 no less
restrictive way of resolving it.
238. The Liga and Bwin contend that the Santa Casa’s
exclusive rights are unlikely 🌻 to achieve the desired purposes because Portugal is not
pursuing a consistent and systematic policy of restricting gaming activities, as
🌻 required by the case-law. In reality, it is only aiming to increase the revenue from
games of chance and gambling. 🌻 The Liga and Bwin assert that the games offered by the
Santa Casa have expanded considerably in recent years, encouraged 🌻 by aggressive
advertising. They also state that the Portuguese Republic is actively pursuing a policy
of increasing the level of 🌻 gaming taking place in casinos.
239. Finally, the Liga and
Bwin submit that the objectives pursued by the Portuguese legislation in 🌻 question could
be attained in the same way, if not better, by a less restrictive measure, such as
opening the 🌻 market to a limited number of private operators who would have specific
obligations. In that connection, the Liga and Bwin 🌻 point out that the Gibraltar
legislation to which Bwin is subject is some of the strictest in Europe. In addition,
🌻 Bwin is said to be a pioneer in drawing up rules intended to ensure responsible gaming
to protect consumers, and 🌻 also in setting up internal procedures to prevent money
laundering.
240. The Portuguese Government observes that the monopoly which the Santa
🌻 Casa has had since the 18th century is a legitimate expression of the Government’s
discretionary power. The grant of an 🌻 exclusive right to the Santa Casa accords with the
aim of restricting the practice of lotteries and off-course betting in 🌻 order to limit
the social risks associated with gaming of that kind and to employ the revenue from
them for 🌻 social causes. The extension of the monopoly to internet games was a necessary
and appropriate measure for offering such games 🌻 on line in a safe and controlled
way.
241. The Portuguese Government submits that the Santa Casa’s monopoly conforms
with Community 🌻 law because it is a non-discriminatory and proportionate measure. The
Government adds that the grant of an exclusive right to 🌻 a body such as the Santa Casa,
which functions under the strict control of the Government, is more likely to 🌻 attain
the objectives pursued.
ii) My assessment
242. I shall begin by indicating what ought
to be the effect, in my view, 🌻 of the limits imposed on the powers of the Member States
by the freedoms of movement in the area of 🌻 games of chance and gambling. I shall then
set out the reasons why the protection of consumers and the maintaining 🌻 of public order
may justify measures restricting the freedom to provide off-course betting on the
internet. Next I shall describe 🌻 the criteria for determining whether the legislation in
question is appropriate for attaining the aims it pursues and whether it 🌻 goes beyond
those aims. Finally, I shall point out that the referring court must ensure that the
contested restriction is 🌻 applied in a non-discriminatory way.
– The effect of the
limits imposed on the powers of the Member States in the 🌻 area of games of chance and
gambling
243. It is not disputed that, in the absence of harmonised rules at Community
🌻 level in the gaming sector, Member States remain competent to define the conditions for
the pursuit of activities in that 🌻 sector. However, they must, when exercising their
powers in this area, respect the freedoms of movement. ( )
244. I think 🌻 an assessment
of the effect of that limitation on the powers of the Member States should start from
the following 🌻 premise.
245. In my view, Community law does not aim to subject games of
chance and gambling to the laws of 🌻 the market. The establishment of a market which
would be as open as possible was intended by the Member States 🌻 as the basis of the
European Economic Community because competition, if it is fair, generally ensures
technological progress and improves 🌻 the qualities of a service or product while
ensuring a reduction in costs. It therefore benefits consumers because they can 🌻 also
benefit from products and services of better quality at a better price. In that way
competition is a source 🌻 of progress and development.
246. However, these advantages do
not arise in the area of games of chance and gambling. Calling 🌻 for tenders from service
providers in that field, which would necessarily lead them to offer ever more
attractive games in 🌻 order to make bigger profits, does not seem to me a source of
progress and development. Likewise I fail to 🌻 see what progress there would be in making
it easier for consumers to take part in national lotteries organised in 🌻 each Member
State and to bet on all the horse races or sporting events in the Union.
247. The
situation is 🌻 not comparable in any way with, for example, the movement of patients
within the Union, which the Court has perfectly 🌻 legitimately promoted because it
extends the range of medical treatment offered to every citizen of the Union by giving
him 🌻 or her access to the health services of other Member States.
248. Games of chance
and gambling, for their part, can 🌻 only function and continue if the great majority of
players lose more than they win. Opening the market in that 🌻 field, which would increase
the share of household budgets spent on gaming, would only have the inevitable
consequence, for most 🌻 of them, of reducing their resources.
249. Therefore limiting the
powers of the Member States in the field of games of 🌻 chance and gambling does not have
the aim of establishing a common market and the liberalisation of that area of
🌻 activity.
250. This is shown by the fact that the Court has consistently held that the
Member States have a broad 🌻 discretion, not only to determine the level of consumer
protection and to maintain public order in relation to games of 🌻 chance and gambling,
but also in relation to the arrangements for organising them.
251. This conclusion also
appears to be corroborated 🌻 by the fact that the Court has held that the Member States
may legitimately determine the appropriation of the revenue 🌻 from games of chance and
gambling and may thus decide that private interests should not profit from them.
252.
Consequently a 🌻 Member State has sovereign power to prohibit a game in its territory, as
the Court held with regard to the 🌻 prohibition of large-scale lotteries in the United
Kingdom in Schindler. In order to channel the provision of games into a 🌻 controlled
system and to protect consumers from being exposed to improper encouragement, a Member
State may also grant an exclusive 🌻 right to organise a game to a single entity or to a
limited number of operators.
253. The difficulties in determining 🌻 whether national law
conforms with Community law arise mainly where Member States grant a single entity or a
limited number 🌻 of operators an exclusive right to operate games of chance and
gambling.
254. The problem for national courts is in ascertaining 🌻 the level above which
the provision of games in the context of an exclusive right exceeds what is justified
by 🌻 the aim of channelling them into a controlled system to maintain public order and to
protect consumers from harmful gambling 🌻 habits.
255. The national courts must therefore
determine whether the restrictive measures laid down by their domestic law are
appropriate for 🌻 attaining their objectives of protection and proportionate when the
single entity or the operators with the exclusive right to operate 🌻 a game of chance or
gambling offer a certain range of games and carry out some advertising.
256. In
considering whether 🌻 the restrictive measures can attain the objectives pursued and
whether they are proportionate, I think account must be taken of 🌻 the fact that, as
there is no Community harmonisation, determining the range of games offered and the
conditions for operating 🌻 them are matters within the discretion of the Member States.
It falls to each Member State to assess, having regard 🌻 to its own situation and its
social and cultural characteristics, the balance to find between, on the one hand, an
🌻 attractive range of games in order to satisfy the desire to gamble and to channel it
into a lawful system 🌻 and, on the other, a range which encourages too much
gambling.
257. With regard to my premiss concerning the role of 🌻 competition in relation
to the aims of the Union, I think that the power of the Member States should be 🌻 limited
by Community law only to the extent of prohibiting conduct whereby a Member State
deflects restrictive measures from their 🌻 purpose and seeks the maximum profit. In ot
