CJEU - C 390/12 / Opinion Pfleger and Others

Key facts of the case:
 
(Article 56 TFEU – Freedom to provide services – Games of chance – Legislation prohibiting the provision of gaming machines without a licence – Limited number of licences – Criminal penalties – Proportionality – Charter of Fundamental Rights)
 
Results (sanctions) and key consequences of the case:
 
90. In the light of the foregoing considerations, I propose that the Court should answer the questions raised by the Unabhängiger Verwaltungssenat des Landes Oberösterreich (Austria) to the following effect:
  1. Article 56 TFEU precludes national legislation such as that at issue in the main proceedings under which only a limited number of existing licence holders may organise games of chance, unless that restriction is justified on the basis of an overriding objective in the public interest, such as consumer protection and/or the prevention of crime, pursues that objective in a consistent and coherent manner having regard to the commercial policies of the licence holders and is proportionate. Whether those criteria are satisfied are matters for the national court to determine. Where a restriction fulfils those criteria, it is not precluded by Articles 15, 16 or 17 of the Charter of Fundamental Rights of the European Union (‘the Charter)’.
  2. Article 56 TFEU and Articles 15, 16 and 17 of the Charter do not preclude a provision that extends criminal liability to persons who are directly or indirectly responsible for the breach of a restriction on providing gaming services, provided that the personal scope of criminal liability is limited to those persons who knew, or ought to have known, that their actions contributed to the breach.
  3. Neither Article 56 TFEU nor Articles 16, 47 or 50 of the Charter preclude a national law, such as that in the main proceedings, which provides that criminal penalties are imposed in respect of unlawful gaming services with stakes of 10 EUR and ‘series games’ with smaller individual stakes which cumulatively amount to more than 10 EUR whereas the administrative penalties apply in respect of unlawful gaming services with stakes of less than 10 EUR.
  4. Article 56 TFEU and Articles 15, 16 and 17 of the Charter preclude national legislation pursuant to which machines which are used in unlicensed games of chances are automatically confiscated and destroyed without the possibility for that outcome to be varied having regard to the degree of culpability of the owner of the slot machine, or any other person having an interest in the machine, and/or the extent of the infringement. Article 56 TFEU and Articles 15, 16 and 17 of the Charter do not, however, preclude national legislation pursuant to which a Member State has a discretionary power to close an establishment where unlicensed gaming machines have been placed at the disposal of the public.
Paragraphs referring to EU Charter: 

 

34-46, 63-71, 79-89