1. Free movement of goods – Quantitative restrictions – Measures having equivalent effect
(Art. 28 EC)
2. Freedom of establishment – Freedom to provide services – Restrictions
(Arts 43 EC and 49 EC)
3. Approximation of laws – Information procedure in the field of technical standards and regulations and of rules on Information Society services – Directive 98/34
(European Parliament and Council Directive 98/34, Arts 1(11), 8(1) and 9(7), first indent)
1. A prohibition by a Member State on the installation of all electric, electromechanical and electronic games, including all computer games, on all public or private premises apart from casinos constitutes a measure having equivalent effect to a quantitative restriction within the meaning of Article 28 EC, even if that measure does not prohibit the importation of the products concerned or their placing on the market.
Such a national measure can be justified by imperative requirements in the public interest, such as protecting public morality, policy and security, if it is proportionate to the aims thereby pursued. Therefore, such a measure is not justified where the national authorities can not only have recourse to other measures which are more appropriate and less restrictive of the free movement of goods, but can also ensure that they are correctly and effectively applied and/or executed in order to achieve the objective pursued.
(see paras 28, 38, 40-41)
2. A prohibition by a Member State on the operation of electric, electromechanical and electronic games on all public or private premises apart from casinos and, so far as computers are concerned, undertakings providing internet services, constitutes a barrier to the freedom to provide services and the freedom of establishment.
That restriction cannot be justified by imperative requirements in the public interest, such as the protection of morality and public policy and security if the national measure is disproportionate to the aims pursued.
(see paras 50, 52-53, 55)
3. National legislative measures prohibiting the use of all electrical, electromechanical and electronic games, including all computer games, on all public and private premises apart from casinos, and the use of games on computers in undertakings providing internet services, and making the operation of such undertakings subject to the issue of a special authorisation, must be considered to be technical regulations within the meaning of Article 1(11) of Directive 98/34 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, as amended by Directive 98/48.
Such provisions must therefore be notified to the Commission pursuant to Article 8(1) of Directive 98/34.
That obligation to notify cannot be called into question, within the meaning of Article 9(7), first indent, of that directive, by the need to adopt national legislation urgently in order to deal rapidly and directly with the social problem created by the operation of electric, electromechanic and electronic games and thus safeguard public policy, where it is common ground that none of the situations referred to in Article 9(7) exist in the Member State concerned.
(see paras 61-62, 64-65)