Judgment of the Court (Grand Chamber) of 8 September 2010 (reference for a preliminary ruling from the Schleswig Holsteinisches Verwaltungsgericht (Germany)) - Carmen Media Group Ltd v Land Schleswig-Holstein, Innenminister des Landes Schleswig-Holstein
(Article 49 EC - Freedom to provide services - Holder of a licence issued in Gibraltar authorising the collection of bets on sporting competitions only abroad - Organisation of bets on sporting competitions subject to a public monopoly at Land level - Objective of preventing incitement to squander money on gambling and combating gambling addiction - Proportionality - Restrictive measure to be genuinely aimed at reducing opportunities for gambling and limiting gambling activities in a consistent and systematic manner - Other games of chance capable of being offered by private operators - Authorisation procedure - Discretion of the competent authority - Prohibition on offering games of chance via the internet - Transitional measures provisionally authorising such an offer by certain operators)
Language of the case: German
Referring court
Schleswig-Holsteinisches Verwaltungsgericht
Parties to the main proceedings
Applicant: Carmen Media Group Ltd
Defendants: Land Schleswig-Holstein, Innenminister des Landes Schleswig-Holstein
Re:
Reference for a preliminary ruling - Schleswig-Holsteinisches Verwaltungsgericht - Interpretation of Art. 49 EC - National legislation establishing a State monopoly on the organisation of sporting bets and lotteries with a significant risk of dependency, making the grant of authorisations for the organisation of other games of chance subject to the discretion of the public authorities, and prohibiting the organisation of games of chance on the internet
Operative part of the judgment
On a proper interpretation of Article 49 EC, an operator wishing to offer via the internet bets on sporting competitions in a Member State other than the one in which it is established does not cease to fall within the scope of the said provision solely because that operator does not have an authorisation permitting it to offer such bets to persons within the territory of the Member State in which it is established, but holds only an authorisation to offer those services to persons located outside that territory.
On a proper interpretation of Article 49 EC, where a regional public monopoly on sporting bets and lotteries has been established with the objective of preventing incitement to squander money on gambling and of combating gambling addiction, and yet a national court establishes at the same time:
that other types of games of chance may be exploited by private operators holding an authorisation; and
that in relation to other games of chance which do not fall within the said monopoly and which, moreover, pose a higher risk of addiction than the games which are subject to that monopoly, the competent authorities pursue policies of expanding supply, of such a nature as to develop and stimulate gaming activities, in particular with a view to maximising revenue derived from the latter;
that national court may legitimately be led to consider that such a monopoly is not suitable for ensuring the achievement of the objective for which it was established by contributing to reducing the opportunities for gambling and to limiting activities within that area in a consistent and systematic manner.
The fact that the games of chance subject to the said monopoly fall within the competence of the regional authorities, whereas those other types of games of chance fall within the competence of the federal authorities, is irrelevant in that respect.
On a proper interpretation of Article 49 EC, where a system of prior administrative authorisation is established in a Member State as regards the supply of certain types of gambling, such a system, which derogates from the freedom to provide services guaranteed by Article 49 EC, is capable of satisfying the requirements of that latter provision only if it is based on criteria which are objective, non-discriminatory and known in advance, in such a way as to circumscribe the exercise of the national authorities' discretion so that it is not used arbitrarily. Furthermore, any person affected by a restrictive measure based on such a derogation must have an effective judicial remedy available to them.
On a proper interpretation of Article 49 EC, national legislation prohibiting the organisation and intermediation of games of chance on the internet for the purposes of preventing the squandering of money on gambling, combating addiction to the latter and protecting young persons may, in principle, be regarded as suitable for pursuing such legitimate objectives, even if the offer of such games remains authorised through more traditional channels. The fact that such a prohibition is accompanied by a transitional measure such as that at issue in the main proceedings is not capable of depriving the said prohibition of that suitability.
____________1 - OJ C 128, 24.5.2008.