Language of document : ECLI:EU:C:2012:454

Case C‑176/11

HIT hoteli, igralnice, turizem dd Nova Gorica
and
HIT LARIX, prirejanje posebnih iger na srečo in turizem dd

v

Bundesminister für Finanzen

(Reference for a preliminary ruling
from the Verwaltungsgerichtshof (Austria))

(Article 56 TFEU — Restriction on the freedom to provide services — Games of chance — Legislation of a Member State prohibiting the advertising of casinos located in other States if the level of legal protection for gamblers in those States is not equivalent to that ensured at national level — Justification — Overriding reasons in the public interest — Proportionality)

Summary of the Judgment

Freedom to provide services — Restrictions — Games of chance — National legislation permitting the advertising of casinos located in another Member State only if it is ensured that the level of legal protection for gamblers in that State is equivalent to that at national level — Lawfulness

(Art. 56 TFEU)

Article 56 TFEU must be interpreted as not precluding legislation of a Member State which permits the advertising in that State of casinos located in another Member State only where the legal provisions for the protection of gamblers adopted in that other Member State provide guarantees that are in essence equivalent to those of the corresponding legal provisions in force in the first Member State.

Such legislation constitutes a restriction on the freedom to provide services that is guaranteed by Article 56 TFEU, but may be justified by overriding reasons in the public interest, such as consumer protection and the prevention of both fraud and incitement to squander money on gambling. However, the restrictions imposed by the Member States must comply with the principle of proportionality. In the absence of harmonisation in the field, the Member States are free to set the objectives of their policy on games of chance and to define in detail the level of protection sought. Consequently, the legislation in question does not go beyond what is necessary provided that it merely requires, in order for authorisation to carry out advertising to be granted, protection against the risks of gaming that is in essence of a level equivalent to that which it guarantees itself.

The position would be different, and the legislation would have to be regarded as disproportionate, if it required the rules in the other Member State to be identical or if it imposed rules not directly related to protection against the risks of gaming.

(see paras 19-22, 24, 31, 32, 36, operative part)