Case C‑591/15

The Gibraltar Betting and Gaming Association Limited

v

Commissioners for Her Majesty’s Revenue and Customs
and
Her Majesty’s Treasury

(Request for a preliminary ruling from the High Court of Justice
(England & Wales), Queen’s Bench Division (Administrative Court))

(Reference for a preliminary ruling — Article 355(3) TFEU — Status of Gibraltar — Article 56 TFEU — Freedom to provide services — Purely internal situation — Inadmissibility)

Summary — Judgment of the Court (Grand Chamber), 13 June 2017

1. EU Treaties—Territorial scope—Gibraltar—Included—Freedom to provide services—Applicability

   (Arts 56 TFEU and 355(3) TFEU)

2. Freedom to provide services—Provisions of the Treaty—Inapplicable in a purely internal situation of a Member State—Provision of services by operators established in Gibraltar to persons established in the United Kingdom—Purely internal situation

   (Arts 56 TFEU and 355(3) TFEU)

1.  Article 355(3) TFEU states that the provisions of the Treaties are to apply to the European territories for whose external relations a Member State is responsible.

   In that regard, it should be noted that Gibraltar is a European territory for whose external relations a Member State, namely the United Kingdom, is responsible, and that EU law is applicable to that territory pursuant to Article 355(3) TFEU (see, to that effect, judgments of 23 September 2003, Commission v United Kingdom, C‑30/01, EU:C:2003:489, paragraph 47, and 12 September 2006, Spain v United Kingdom, C‑145/04, EU:C:2006:543, paragraph 19).

   By way of derogation from Article 355(3) TFEU, under the 1972 Act of Accession, EU acts do not apply to Gibraltar in certain areas of EU law. Those exceptions were introduced on account of the special legal position of that territory, in particular its status as a free port (see, in that regard, judgment of 21 July 2005, Commission v United Kingdom, C‑349/03, EU:C:2005:488, paragraph 41). However, freedom to provide services, enshrined in Article 56 TFEU, is not one of those exceptions.

   It follows from the foregoing that Article 56 TFEU is applicable, by virtue of Article 355(3) TFEU, to Gibraltar.

   (see paras 28-31)

2.  Article 355(3) TFEU, in conjunction with Article 56 TFEU, is to be interpreted as meaning that the provision of services by operators established in Gibraltar to persons established in the United Kingdom constitutes, as a matter of EU law, a situation confined in all respects within a single Member State.

   It is true that the Court has previously held, as observed by all the interested parties, that Gibraltar does not form part of the United Kingdom (see, to that effect, judgment of 23 September 2003, Commission v United Kingdom, C‑30/01, EU:C:2003:489, paragraph 47, and 12 September 2006, Spain v United Kingdom, C‑145/04; EU:C:2006:543, paragraph 15). That fact is not, however, decisive in determining whether two territories must, for the purposes of the applicability of the provisions on the four freedoms, be treated as a single Member State.

   As regards, in the first place, the conditions under which Article 56 TFEU is to apply to Gibraltar, it is true that Article 355(3) TFEU does not state that Article 56 is to apply to Gibraltar ‘under the same conditions as they apply to the United Kingdom’. That said, it should be recalled that Article 355(3) TFEU extends the applicability of the provisions of EU law to the territory of Gibraltar, subject to the exclusions expressly provided for in the 1972 Act of Accession, which do not, however, cover freedom to provide services. Furthermore, the fact, relied on by the Government of Gibraltar, that Article 56 TFEU is applicable to Gibraltar, by virtue of Article 355(3) TFEU, and to the United Kingdom, by virtue of Article 52(1) TEU, is irrelevant in that regard.

   In the second place, there is no other factor that could justify the conclusion that relations between Gibraltar and the United Kingdom may be regarded, for the purposes of Article 56 TFEU, as akin to those existing between two Member States. To treat trade between Gibraltar and the United Kingdom in the same way as trade between Member States would be tantamount to denying the connection, recognised in Article 355(3) TFEU, between that territory and that Member State.

   (see paras 35, 36, 38-42, operative part)