Case C‑464/15

Admiral Casinos & Entertainment AG

v

Balmatic Handelsgesellschaft mbH and Others

(Request for a preliminary ruling from the Landesgericht Wiener Neustadt)

(Reference for a preliminary ruling — Article 56 TFEU — Freedom to provide services — Games of chance — Legislation of a Member State prohibiting, on pain of criminal penalties, the operation of low-prize gaming machines (‘kleines Glücksspiel’) where no licence has been granted by the competent authority — Restriction — Justification — Proportionality — Assessment of proportionality on the basis of both the objective of the legislation at the time of its adoption and its effects when implemented — Effects empirically and definitely determined)

Summary — Judgment of the Court (Seventh Chamber), 30 June 2016

1.        Questions referred for a preliminary ruling — Jurisdiction of the Court — Question raised concerning a dispute confined within a single Member State — Inclusion in view of the possible application of EU law to that dispute because of a prohibition on discrimination laid down by national law

(Art. 267 TFEU)

2.        Freedom to provide services — Restrictions — Games of chance — National legislation prohibiting, on pain of criminal penalties, the operation of low-prize gaming machines where no licence has been granted by the competent authority — Justification — Proportionality — Assessment of proportionality on the basis of both the objective of the legislation at the time of its adoption and its effects when implemented

(Art. 56 TFEU)

1.        See the text of the decision.

(see paras 22-23)

2.        Article 56 TFEU must be interpreted as meaning that a review of the proportionality of restrictive national legislation in the area of games of chance must be based not only on the objective of that legislation at the time of its adoption, but also on the effects of the legislation, assessed after its adoption.

It follows from the judgment of 30 April 2014 in Pfleger and Others, C‑390/12, that Article 56 TFEU precludes national legislation where that legislation does not genuinely meet the concern to reduce opportunities for gambling or to fight gambling-related crime in a consistent and systematic manner. The very use of the words ‘in a consistent and systematic manner’ means that the legislation concerned must meet the concern to reduce opportunities for gambling or to fight gambling-related crime not only at the time of its adoption, but also thereafter. Moreover, in an assessment of proportionality, it is for the national court to examine, amongst other things, the development of the commercial policies of authorised operators and the state, at the date of the facts, of criminal and fraudulent activities related to gambling. It must therefore be held that, in a review of proportionality, the approach taken by the national court must be dynamic rather than static in the sense that it must take account of the way in which circumstances have developed following the adoption of the legislation concerned.

(see paras 33-37, operative part)