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winter series pokerstars 2024 ~ Maneiras Criativas de Ganhar Dinheiro Online: Apostas e Jogos na Web em Destaque

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

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