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Document 62017CJ0003
Judgment of the Court (Sixth Chamber) of 28 February 2018.#Sporting Odds Limited v Nemzeti Adó- és Vámhivatal Központi Irányítása.#Request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság.#Reference for a preliminary ruling — Freedom to provide services — Article 56 TFEU — Article 4(3) TEU — Charter of Fundamental Rights of the European Union — Restrictions — Betting and gaming — National legislation — Operation of certain kinds of games of chance by the State — Exclusivity — Licensing system for other kinds of games of chance — Requirement of a licence — Administrative penalty.#Case C-3/17.
Judgment of the Court (Sixth Chamber) of 28 February 2018.
Sporting Odds Limited v Nemzeti Adó- és Vámhivatal Központi Irányítása.
Request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság.
Reference for a preliminary ruling — Freedom to provide services — Article 56 TFEU — Article 4(3) TEU — Charter of Fundamental Rights of the European Union — Restrictions — Betting and gaming — National legislation — Operation of certain kinds of games of chance by the State — Exclusivity — Licensing system for other kinds of games of chance — Requirement of a licence — Administrative penalty.
Case C-3/17.
Judgment of the Court (Sixth Chamber) of 28 February 2018.
Sporting Odds Limited v Nemzeti Adó- és Vámhivatal Központi Irányítása.
Request for a preliminary ruling from the Fővárosi Közigazgatási és Munkaügyi Bíróság.
Reference for a preliminary ruling — Freedom to provide services — Article 56 TFEU — Article 4(3) TEU — Charter of Fundamental Rights of the European Union — Restrictions — Betting and gaming — National legislation — Operation of certain kinds of games of chance by the State — Exclusivity — Licensing system for other kinds of games of chance — Requirement of a licence — Administrative penalty.
Case C-3/17.
Court reports – general – 'Information on unpublished decisions' section
ECLI identifier: ECLI:EU:C:2018:130
JUDGMENT OF THE COURT (Sixth Chamber)
28 February 2018 ( *1 )
(Reference for a preliminary ruling — Freedom to provide services — Article 56 TFEU — Article 4(3) TEU — Charter of Fundamental Rights of the European Union — Restrictions — Betting and gaming — National legislation — Operation of certain kinds of games of chance by the State — Exclusivity — Licensing system for other kinds of games of chance — Requirement of a licence — Administrative penalty)
In Case C‑3/17,
REQUEST for a preliminary ruling under Article 267 TFEU from the Fővárosi Közigazgatási és Munkaügyi Bíróság (Administrative and Labour Court, Budapest, Hungary), made by decision of 4 October 2016, received at the Court on 3 January 2017, in the proceedings
Sporting Odds Ltd
v
Nemzeti Adó- és Vámhivatal Központi Irányítása,
THE COURT (Sixth Chamber),
composed of C.G. Fernlund, President of the Chamber, J.-C. Bonichot and S. Rodin (Rapporteur), Judges,
Advocate General: M. Szpunar,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
– |
Sporting Odds Ltd, by A. Nemescsói and Gy.V. Radics, ügyvédek, |
– |
the Hungarian Government, by M.Z. Fehér and G. Koós, acting as Agents, |
– |
the Belgian Government, by L. Van den Broeck and M. Jacobs, acting as Agents, and by P. Vlaemminck, R. Verbeke and J. Auwerx, avocats, |
– |
the Estonian Government, by N. Grünberg, acting as Agent, |
– |
the Maltese Government, by A. Buhagiar, acting as Agent, |
– |
the Portuguese Government, by L. Inez Fernandes and M. Figueiredo and by A. Silva Coelho and P. de Sousa Inês, acting as Agents, |
– |
the European Commission, by H. Tserepa-Lacombe and L. Havas, acting as Agents, |
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1 |
This request for a preliminary ruling concerns the interpretation of Article 4(3) TEU, Article 56 TFEU and Articles 41, 47 and 48 of the Charter of Fundamental Rights of the European Union (‘the Charter’). |
2 |
That request has been made in a dispute between Sporting Odds Ltd and the Nemzeti Adó- és Vámhivatal Központi Irányítása (Central Directorate of the National Tax and Customs Administration, Hungary) (‘the Tax Authority’) concerning a decision by which the latter imposed a fine of 3500000 Hungarian florints (HUF) (approximately EUR 11306) on Sporting Odds (‘the contested decision’) for having organised online games of chance without having either a concession or a licence required for that purpose. |
Legal context
The Law on games of chance
3 |
Article 2(2) of the szerencsejáték szervezéséről szóló 1991. évi XXXIV. törvény (Law XXXIV of 1991 on the organisation of games of chance), in the version in force at the material time (‘the Law on games of chance’), is worded as follows: ‘The pursuit of the activity of organising games of chance requires — except as provided by this Law — the authorisation of the national tax authorities …’ |
4 |
Article 3(1), 1(a), 1(b) and 3 of that law states: ‘(1) With the exception of the organisation of online games of chance and the organisation of online casino games, the organisation of non-liberalised games of chance
(1a) the organisation of online games of chance may be carried out
(1b) The right to organise online casino games is exclusively reserved to persons holding a concession relating to the operation of a casino situated on Hungarian territory, which may organise online casino games through the concessionary company created for the purposes of online casino games. … (3) Organisation of lotteries and betting — except betting on horses, online games of chance and bet brokerage — shall be reserved exclusively to the State operator of games of chance.’ |
5 |
Article 4(1) and (6) of that law provides: ‘(1) For the conclusion of concession contracts, the Minister shall issue a public call for tenders in accordance with Article 5(1) of the [koncesszióról szóló 1991. évi XVI. törvény (Law No XVI of 1991 on concessions)]. The issue of a public call for tenders for the award of a concession requires — except as regards a national calls for tenders — the approval of the body representing the local authorities where the casino is situated (in Budapest, the assembly of the metropolitan area. Where the right to a concession is granted by way of national call for tenders, the State Tax Authorities shall issue the licence with regard to places where the casinos are situated in the municipal areas whose representative bodies — in Budapest, the Assembly of the Metropolitan Area — have given their consent to the pursuit of such an activity in their territory. … (6) Pursuant to Article 10/C(2) of the Law [No XVI of 1991] on concessions, the Minister may, without issuing a public call for tenders, conclude a concession contract with a trustworthy operator of games of chance within the meaning of the present Law.’ |
6 |
Article 5(1) of the Law on games of chance is worded as follows: ‘In the event of a public call for tenders being issued in accordance with Article 5(1) of Law [No XVI of 1991] on concessions, the Minister may conclude the concession contract with the successful tenderer.’ |
7 |
Article 37(30) of the Law on games of chance provides: ‘“A trustworthy operator of games of chance” means an operator of games of chance which is a transparent body within the meaning of Article 3(1)(1) of the nemzeti vagyonról szóló 2011. évi CXCVI. törvény (Law No CXCVI on national resources) and
|
Law No XVI of 1991 on concessions
8 |
Paragraph 10/C(1) and (2) of Law No XVI of 1991 on concessions provides as follows: ‘(1) The concession contract may also be concluded, in accordance with the present article, with a trustworthy operator of games of chance as defined in the Sectoral Law. (2) The Minister for the sector may decide not to issue a public call for tenders for the award of a concession if the concession contract can be concluded with a trustworthy operator of games of chance.’ |
The dispute in the main proceedings and the questions referred for a preliminary ruling
9 |
Sporting Odds is a British company which holds a licence for the organisation of online games of chance in the United Kingdom. That company offers online casino games in Hungary without, however, having a concession or a licence for the organisation of such games in that Member State. |
10 |
Following an investigation of the internet site ‘hu.sportingbeteuro.com’, carried out between 6 and 12 January 2016, the Tax Authority established that Sporting Odds had organised sports betting without having the concession or licence for that purpose required by Hungarian law. Taking the view that, pursuant to national law, there was no need to give Sporting Odds prior notice of the investigation or the procedure, the Tax Authority established the existence of an infringement solely on the basis of the findings made in the course of the investigation of Sporting Odds’ website. As a consequence, by the contested decision, the Tax Authority imposed a fine of HUF 3500000 on Sporting Odds. |
11 |
Taking the view that the Hungarian law on the games of chance sector was contrary to EU law, Sporting Odds decided to bring an action against the contested decision before the Fővárosi Közigazgatási és Munkaügyi Bíróság (Administrative and Labour Court, Budapest, Hungary). |
12 |
The referring court is unsure, first, whether the award procedure for concessions for the organisation of games of chance was organised in a way which enabled Sporting Odds to make an application in that regard and, second, whether an effective judicial review of the award procedure of such concessions was ensured. In that connection, it states that no public call for tenders was organised by the Minister for the Economy, and that Sporting Odds had no opportunity to submit an unsolicited tender in order to obtain the concession for the organisation of games of chance which is reserved for operators of games of chance considered to be ‘trustworthy’, on account of the fact that that category consists exclusively of operators which have organised games of chance in Hungary for 10 years. |
13 |
Furthermore, that court points out that national law does not indicate whether the Minister for the Economy is required to accept unsolicited tenders and that a decision of that minister is not subject to review by the national courts, since it does not constitute an administrative act performed in the exercise of governmental authority. |
14 |
Furthermore, the referring court is concerned about the points of comparison to be taken into consideration in the examination of whether the restrictions are consistent and systematic with regard to Article 56 TFEU, as regards the State monopoly system for certain kinds of games of chance and the system of concessions. In that connection it observes, as regards casino games and online casino games, that contrary to the objectives of consumer protection and public health contained in the relevant legislation, consumers have been encouraged to indulge in those kinds of games of chance. |
15 |
Furthermore, according to that court, it is clear from register of the Szerencsejáték Zrt. (the company responsible for organising games of chance, 100% owned by the Hungarian State) and special company registers that only companies which have their registered office in Hungary have a casino concession. In that connection, it is unsure whether a provision according to which only companies having a concession for a casino in Hungary can organise online games of chance constitutes an unjustified restriction. |
16 |
The referring court is also unsure as to the rules on which the examination of the consistency and systematic nature of the measures restricting the freedom to provide services is to be based. In that connection, it asks whether, in the examination of proportionality, it is required of its own motion to seek evidence or whether it must allocate the burden of proof between the parties to the proceedings or to other persons. |
17 |
Furthermore, it asks whether a national measure which provides that a party may raise the issue of the compatibility of national law with EU law only at the stage of legal proceedings infringes the right to sound administration guaranteed by the Charter, specifically the right to be heard and the duty to state reasons. |
18 |
In those circumstances, the Fővárosi Közigazgatási és Munkaügyi Bíróság (Administrative and Labour Court, Budapest) decided to stay proceedings and refer the following questions to the Court for a preliminary ruling:
|
Consideration of the questions referred
The first to the fourth questions
19 |
By Questions 1 to 4, the referring court asks essentially whether Article 56 TFEU must be interpreted as meaning that it precludes a dual system of organisation of the market for games of chance under which certain types of games of chance fall within the State monopoly system, while others fall within the system for concessions and licences for the organisation of games of chance. |
20 |
First, it must be recalled that the legislation on games of chance is one of the areas in which there are significant moral, religious and cultural differences between the Member States. In the absence of European Union harmonisation in the field, it is for each Member State to determine in those areas, in accordance with its own scale of values, what is required in order to ensure that the interests in question are protected (judgment of 8 September 2009, Liga Portuguesa de Futebol Profissional and Bwin International, C‑42/07, EU:C:2009:519, paragraph 57 and the case-law cited). |
21 |
Next, it is common ground that, in the context of legislation which is compatible with the FEU Treaty, the choice of methods for organising and controlling the operation and playing of games of chance or gambling falls within the margin of discretion which the national authorities enjoy (see, to that effect, judgment of 8 September 2010, Carmen Media Group, C‑46/08, EU:C:2010:505, paragraph 59). |
22 |
Finally, the Court has held that, in the matter of games of chance, it is in principle necessary to examine separately for each of the restrictions imposed by the national legislation whether, in particular, it is suitable for achieving the objective or objectives invoked by the Member State concerned and whether it does not go beyond what is necessary in order to achieve those objectives (judgment of 8 September 2010, Carmen Media Group, C‑46/08, EU:C:2010:505, paragraph 60). |
23 |
Thus, it is clear from settled case-law that the fact that some types of games of chance are subject to a public monopoly whilst others are subject to a system of authorisations granted to private operators cannot, in itself, deprive of justification, having regard to the legitimate aims which they pursue, measures which, like the public monopoly, appear at first sight to be the most restrictive and the most effective. Such a divergence in legal regimes is not, in itself, capable of affecting the suitability of such a public monopoly for achieving the objective of preventing citizens from being incited to squander money on gambling and of combating addiction to the latter, for which it was established (judgment of 8 September 2010, Carmen Media Group, C‑46/08, EU:C:2010:505, paragraph 63). |
24 |
However, a system of dual organisation of the market for games of chance may be contrary to Article 56 TFEU if it is found that the competent authorities pursue policies seeking to encourage participation in games of chance other than those covered by the State monopoly rather than to reduce opportunities for gambling and to limit activities in that area in a consistent and systematic manner so that the aim of preventing incitement to squander money on gambling and of combating addiction to the latter, which was at the root of the establishment of the said monopoly, can no longer be effectively pursued by means of the monopoly (see, to that effect, judgment of 8 September 2010, Carmen Media Group, C‑46/08, EU:C:2010:505, paragraph 68). |
25 |
In the present case, the Hungarian Government relies on reasons of public order, public health and public security and overriding reasons of consumer protection, prevention of addiction to gambling and the prevention of fraud in order to justify the dual system of regulation of games of chance. |
26 |
It must be held that such reasons may justify restrictions on gaming and betting activities both as regards the State monopoly system for certain types of such games and as regards the concessions and licence system for the organisation of games of chance. |
27 |
In order to demonstrate the inconsistency of the Hungarian system of organisation of games of chance, Sporting Odds claims, however, that, in reality, the main purpose of the national legislation is to increase budgetary revenue from taxes levied on casinos, by raising the forecasts of revenue from the concession fees and licence fees for casinos and by the value of chips purchased by players. It adds that the liberalisation measures for certain types of games of chance have aided an expansion of casino betting and gaming activities, contrary to the objectives of consumer protection and the prevention of addiction to gambling. |
28 |
In that connection, while it is common ground that the objective of maximising public revenue alone cannot permit a restriction of the freedom to provide services, the fact that a restriction on gambling activities incidentally benefits the budget of the Member State concerned does not prevent that restriction from being justified in so far as it actually pursues objectives relating to overriding reasons in the public interest (see, to that effect, judgment of 11 June 2015, Berlington Hungary and Others, C‑98/14, EU:C:2015:386, paragraphs 60 and 61). |
29 |
Furthermore, as regards the policy of liberalising certain types of games of chance, which may be part of the controlled expansion of games of chance, the Court has held that such a policy may be consistent both with the objective of preventing the use of gambling activities for criminal or fraudulent purposes and with that of preventing incitement to squander money on gambling and of combating addiction to gambling, by directing consumers towards the offer emanating from authorised operators, that offer being deemed to be protected from criminal elements and also designed to safeguard consumers more effectively against squandering of money and addiction to gambling (judgment of 11 June 2015, Berlington Hungary and Others, C‑98/14, EU:C:2015:386, paragraph 69 and the case-law cited). |
30 |
In order to achieve that objective of channelling into controlled circuits, the authorised operators must provide a reliable, but at the same time attractive, alternative to a prohibited activity, which may necessitate, inter alia, the use of new distribution techniques (judgment of 11 June 2015, Berlington Hungary and Others, C‑98/14, EU:C:2015:386, paragraph 70 and the case-law cited). |
31 |
However, a policy of controlled expansion of gambling activities can only be regarded as being consistent if, first, criminal and fraudulent activities linked to gambling and, secondly, addiction to gambling could have been a problem in Hungary at the material time and if the expansion of authorised and regulated activities could have solved that problem (judgment of 11 June 2015, Berlington Hungary and Others, C‑98/14, EU:C:2015:386, paragraph 71 and the case-law cited). |
32 |
It is for the referring court to determine, in the context of the case before it, whether those conditions are satisfied and, if applicable, whether the expansion in question is on such a scale as to make it impossible to reconcile with the objective of curbing addiction to gambling (judgment of 11 June 2015, Berlington Hungary and Others, C‑98/14, EU:C:2015:386, paragraph 72 and the case-law cited). |
33 |
Having regard to the foregoing considerations, the answer to Questions 1 to 4 is that Article 56 TFEU must be interpreted as meaning that it does not, in principle, preclude a dual system of organisation of the market for games of chance under which certain types of those games fall within the State monopoly system, while others fall within the system of concessions and licences for the organisation of games of chance, if the referring court establishes that the rules restricting the freedom to provide services in fact pursues in a consistent and systematic manner the objectives relied on by the Member State concerned. |
Question 5
34 |
By Question 5, the referring court asks essentially whether Article 56 TFEU must be interpreted as meaning that it precludes a national provision, such as that at issue in the main proceedings, under which the grant of an licence for the organisation of online gaming is reserved exclusively to operators of games of chance running a casino under a concession in national territory. |
35 |
In order to answer that question, it should be born in mind that the freedom to provide services entails, inter alia, the abolition of any discrimination against a person providing services on account of his nationality or the fact that he is established in a Member State other than the one in which the service is provided. The requirement that an undertaking create a permanent establishment or branch in the Member State in which the services are provided runs directly counter to the freedom to provide services since it renders impossible the provision of services, in that Member State, by undertakings established in other Member States (judgment of 21 January 2010, Commission v Germany, C‑546/07, EU:C:2010:25, paragraph 39 and the case-law cited). |
36 |
Although the Court has held that Article 56 TFEU does not preclude national legislation which prohibits operators established in other Member States where they legally provide similar services from offering online casino games on the territory a Member State (see, to that effect, judgment of 8 September 209, Liga Portuguesa de Futebol Profissional and Bwin International, C‑42/07, EU:C:2009:519, paragraph 73), it must be recalled that the national law examined in the case which gave rise to that judgment introduced a monopoly over games of chance giving exclusive rights to operate games to a body under the actual supervision of the State. |
37 |
In the case in the main proceedings, the provisions at issue restrict the organisation of online games of chance to operators managing a casino on national territory and which have a concession and a licence for that purpose. |
38 |
In that connection, the Court has consistently held that a system of concessions and licences for the organisation of games of chance must be based on objective, non-discriminatory criteria which are known in advance, in such a way as to circumscribe the exercise of the national authorities’ discretion so that it is not used arbitrarily (judgment of 22 June 2017, Unibet International, C‑49/16, EU:C:2017:491, paragraph 41 and the case-law cited). |
39 |
Therefore, a restriction such as that which has been found to exist in the present case is discriminatory. It is compatible with European Union law only if it is covered by an express derogating provision, such as Article 52 TFEU, namely public policy, public security or public health (judgment of 9 September 2010, Engelmann, C‑64/08, EU:C:2010:506, paragraph 34 and the case-law cited). |
40 |
The Hungarian Government relies on reasons of public order and public health, arguing that State control of online gaming is limited and that the national law ensures that online gaming, which involves higher risks than traditional games of chance, is reserved to trustworthy operators running a casino on national territory which satisfy the requirements of consumer protection and public order. |
41 |
Although it is common ground that, because of the lack of direct contact between consumer and operator, games of chance accessible via the internet involve different and more substantial risks of fraud by operators against consumers compared with the traditional markets for such games (judgment of 8 September 2009, Liga Portuguesa de FutebolProfissional and Bwin International, C‑42/07, EU:C:2009:519, paragraph 70), the provision at issue must nevertheless satisfy the conditions laid down in the case-law of the Court as regards their proportionality (see, to that effect, judgment of 6 March 2007, Placanica and Others, C‑338/04, C‑359/04 and C‑360/04, EU:C:2007:133, paragraph 48). |
42 |
More precisely, if a restriction, such as that at issue in the main proceedings is to be accepted, according to which an operator of online casino games must obtain a concession for a casino situated in Hungary in order to offer online games of chance, it must be shown that it constitutes a condition which is indispensable for attaining the objective pursued (see, to that effect, judgment of 9 July 1997, Parodi, C‑222/95, EU:C:1997:345, paragraph 31and the case-law cited). |
43 |
It is clear that such a restriction, which amounts to reserving access to the market for online games of chance to casino operators situated on national territory, goes beyond what may be considered necessary as proportional, since less restrictive measures exist which enable the objectives relied on by the Hungarian Government to be attained. |
44 |
Having regard to all of the foregoing considerations, the answer to Question 5 is that Article 56 TFEU must be interpreted as meaning that it precludes a national measure, such as that at issue in the main proceedings, according to which the grant of a licence to organise online games of chance is reserved exclusively to operators of games of chance holding a concession for a casino situated on national territory, since that rule does not constitute a condition indispensable to the achievement of the desired objectives, and that there are less restrictive measures which are capable of attaining them. |
Questions 6 to 8
45 |
By Questions 6 to 8, the national court asks essentially whether Article 56 TFEU must be interpreted as meaning that it precludes legislation, such as that at issue in the main proceedings, which establishes a system of concessions and licences for the organisation of online games of chance pursuant to which operators may conclude a concession agreement for a casino and, on the basis of that concession, obtain the licence for the organisation of online games of chance either by taking part in a call for tenders for the purpose of concluding a concession contract organised by the Minister for the Economy or by submitting an unsolicited tender to that minister for the purpose of concluding a concession agreement, that possibility being open to operators of games of chance deemed to be ‘trustworthy’ for the purposes of national law. |
46 |
As a preliminary point, it must be recalled that the Court has already answered questions on the detailed rules for granting concessions and licences for the organisation of games of chance in Hungary in the judgment of 22 June 2017, Unibet International (C‑49/16, EU:C:2017:491). The only difference between Question 6 and those which the Court has already answered concerns the type of concession which must be obtained for the grant of a licence to organise online games of chance to an operator. |
47 |
It is clear from the order for reference that the procedures for granting concessions, namely the call for tenders for the purpose of concluding a concession agreement organised by the Minister for the Economy, and the possibility to submit an unsolicited tender to that minister for the conclusion of a concession agreement reserved to operators of games of chance deemed to be ‘trustworthy’, remain unchanged. Furthermore, it is also clear from that decision that a call for tenders falling within the competence of the Minister for the Economy still has not been organised, and that the condition that an operator of games of chance deemed to be ‘trustworthy’ must have organised games of chance in Hungary for 10 years is still in the national law in the version applicable to the facts of the case in the main proceedings. |
48 |
Therefore, without there being any need to examine the system at issue in the main proceedings, it is clear from paragraph 48 of the judgment of 22 June 2017, Unibet International (C‑49/16, EU:C:2017:491), that that system is contrary to Article 56 TFEU. |
49 |
Having regard to all of the foregoing considerations, the answer to Questions 6 to 8 is that Article 56 TFEU must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which introduces a system of concessions and licences for the organisation of online games of chance, if it contains discriminatory rules with regard to operators established in other Member States or if it lays down rules which are not discriminatory but which are applied in a manner which is not transparent or are implemented in such a way as to prevent or hinder an application from certain tenderers established in other Member States. |
Question 9
50 |
It must be stated that, as is clear from the request for a preliminary ruling that Sporting Odds has neither applied for or obtained a concession, the answer to that question, which concerns the remedies available against decisions relating to the award of concessions is hypothetical. |
51 |
Consequently, Question 9 must be held to be inadmissible. |
Question 10
52 |
By that question, the referring court asks essentially whether Article 56 TFEU and Article 4(3) TEU, read in conjunction with Articles 47 and 48 of the Charter, preclude a national law, such as that at issue in the main proceedings, which makes no provision for the examination by the court of its own motion of the proportionality of measures restricting the freedom to provide services, within the meaning of Article 56 TFEU, and which places the burden of proof on the parties to the proceedings. |
53 |
In that connection, it has been established that it is for the national courts to carry out a global assessment of the circumstances in which restrictive legislation was adopted and implemented on the basis of the evidence provided by the competent authorities of the Member State, seeking to demonstrate the existence of objectives capable of justifying a restriction of a fundamental freedom guaranteed by the FEU Treaty and its proportionality (see, to that effect, judgment of 14 June 2017, Online Games and Others, C‑685/15, EU:C:2017:452, paragraph 65). |
54 |
While those courts may be required, under national procedural rules, to take the necessary measures in order to encourage the production of such evidence, they cannot, in contrast, be required to substitute themselves for those authorities in setting out the justifications which it is the duty of the latter to provide. Should such justifications not be provided through absence or passivity of those authorities, the national courts must be able to draw all inferences which result from such failure (judgment of 14 June 2017, Online Games and Others, C‑685/15, EU:C:2017:452, paragraph 66). |
55 |
Furthermore, the Court has held that EU law does not preclude a national system according to which the court called upon to rule on the compliance with EU law of legislation restricting the exercise of a fundamental freedom of the European Union is required to examine of its own motion the facts of the case before it, provided that such a system does not have the consequence that that court is required to substitute itself for the competent authorities of the Member State concerned, whose task it is to provide the evidence necessary to enable that court to determine whether that restriction is justified (judgment of 14 June 2017, Online Games and Others, C‑685/15, EU:C:2017:452, paragraph 67). |
56 |
It follows that EU law does not require that Member States provide for an ex officio examination of measures restricting fundamental freedoms and, therefore, does not preclude a national law which puts the burden of proof on the parties. |
57 |
Having regard to all of the foregoing considerations, the answer to Question 10 is that Article 56 TFEU and Article 4(3) TEU, read in conjunction with Articles 47 and 48 of the Charter, must be interpreted as meaning that they do not preclude national legislation, such as that at issue in the main proceedings, which does not provide for the ex officio examination of the proportionality of measures restricting the freedom to provide serves within the meaning of Article 56 TFEU and which puts the burden of proof on the parties to the proceedings. |
Question 11
58 |
By Question 11, the referring court asks essentially whether Article 56 TFEU, read in conjunction with Articles 47 and 48 of the Charter, must be interpreted as meaning that it is for a Member State, which has put in place restrictive rules, to produce the evidence establishing the existence of objectives able to legitimate a restriction on a fundamental freedom guaranteed by the FEU Treaty and its proportionality, or whether it may impose that obligation on the other party to the proceedings. |
59 |
On one hand, as is clear from paragraphs 52 and 53 of that judgment, it is for the competent authorities of a Member State which have implemented such legislation to produce evidence establishing the existence of objectives capable of justifying a restriction on a fundamental freedom guaranteed by the FEU Treaty and its proportionality. On the other hand, should such justifications not be provided through absence or passivity of those authorities, the national courts must be able to draw all inferences which result from such failure. |
60 |
Having regard to the foregoing considerations, Article 56 TFEU, read in conjunction with Articles 47 and 48 of the Charter, must be interpreted as meaning that it is for a Member State which has put in place restrictive legislation to provide evidence to prove the existence of objectives capable of justifying a restriction on a fundamental freedom guaranteed by the FEU Treaty and its proportionality, in the absence of which the national court must draw all the inferences which result from such a failure. |
Question 14
61 |
By Question 14, which it is appropriate to examine after Question 11, the referring court asks essentially whether Article 56 TFEU must be interpreted as meaning that a Member State has failed to satisfy its obligation to justify a restrictive measure because it has failed to provide any analysis of the effects of that measure on the date on which it was introduced into national legislation or the date of the examination of such a measure by the national court. |
62 |
In that regard, it should be borne in mind that it is the Member State wishing to rely on an objective capable of justifying the restriction of the freedom to provide services which must supply the court called on to rule on that question with all the evidence of such a kind as to enable the court to be satisfied that the measure does indeed comply with the requirements deriving from the principle of proportionality (judgment of 30 April 2014, Pfleger and Others, C‑390/12, EU:C:2014:281, paragraph 50 and the case-law cited). |
63 |
It cannot, however, be inferred from that case-law that a Member State is deprived of the possibility of establishing that an internal restrictive measure satisfies those requirements, solely on the ground that that Member State is not able to produce studies serving as the basis for the adoption of the legislation at issue (judgment of 30 April 2014, Pfleger and Others, C‑390/12, EU:C:2014:281, paragraph 51 and the case-law cited). |
64 |
It is for the national court to carry out a global assessment of the circumstances in which restrictive legislation, such as that at issue in the main proceedings, was adopted and implemented (judgment of 30 April 2014, Pfleger and Others, C‑390/12, EU:C:2014:281, paragraph 52) and not to state solely that a preliminary study of the effects of legislation has not been carried out. |
65 |
Having regard to all of the foregoing considerations, the answer to Question 14 is that Article 56 TFEU must be interpreted as meaning that it cannot be held that a Member State has failed to satisfy its obligation to justify a restrictive measure because it has failed to provide an analysis of the effects of that measure on the date on which that measure was introduced into national law or the date of the examination of such a measure by the national court. |
Question 16
66 |
By Question 16, which it is appropriate to examine before Questions 12, 13 and 15, the referring court asks essentially whether Article 56 TFEU must be interpreted as meaning that it precludes a penalty, such as that at issue in the main proceedings, imposed on account of an infringement of national rules introducing a system for concessions and licences for the organisation of games of chance in a situation in which such national rules are contrary to that article. |
67 |
In that connection, it suffices to state that where a restrictive system has been established for games of chance and that system is incompatible with Article 56 TFEU, an infringement of the system by an economic operator cannot give rise to penalties (judgment of 22 June 2017, Unibet International, C‑49/16, EU:C:2017:491, paragraph 50 and the case-law cited). |
68 |
Having regard to the foregoing considerations, the answer to Question 16 is that Article 56 TFEU must be interpreted as precluding a penalty, such as that at issue in the main proceedings, imposed for the infringement of national rules introducing a system of concessions and licences for the organisation of games of chance, if such national legislation proves to be contrary to that article. |
69 |
In view of the answer given to that question, there is no need to answer Questions 12, 13 and 15. |
Costs
70 |
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. |
On those grounds, the Court (Sixth Chamber) hereby rules: |
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[Signatures] |
( *1 ) Language of the case: Hungarian.