Key facts of the case:
Reference for a preliminary ruling — Payment services — Directive 2007/64/EC — Article 3(e) and (o) — Article 4(3) — Annex — Point 2 — Scope — Operation of multifunctional terminals enabling cash withdrawals in gaming arcades — Consistency of the practice of the national authorities in bringing prosecutions — Confiscation of sums obtained by means of an unlawful activity — Charter of Fundamental Rights of the European Union — Article 17
Outcome of the case:
On those grounds, the Court (Fifth Chamber) hereby rules:
Article 4(3) of Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC, read in conjunction with point 2 of the annex to the directive, must be interpreted as meaning that a cash withdrawal service offered by a gaming arcade operator to his customers by means of multifunctional terminals in those arcades is not a ‘payment service’ within the meaning of that directive, where the operator does not carry out any operation on those customers’ payment accounts and the activities he performs on that occasion are confined to making the terminals available and loading them with cash.
1) This request for a preliminary ruling concerns the interpretation of Article 3(e) and (o) and Article 4(3) of Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC (OJ 2007 L 319, p. 1), read in conjunction with point 2 of the annex to the directive, and of Article 17 of the Charter of Fundamental Rights of the European Union.
29) In those circumstances, the Amtsgericht Nürtingen (Local Court, Nürtingen) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling.
‘(1) Must Article 3(o) of [Directive 2007/64] be interpreted as meaning that the possibility of withdrawing cash in a gaming arcade holding a concession from the State by means of a [bank] card and PIN from a cash terminal which is also a change machine, where the technical processing relating to the bank and the account is carried out by an external service provider [such as the network operator] and the cash is dispensed to the customer only when the network operator, after checking whether the account is in funds, sends an authorisation code to the terminal, whereas the arcade operator merely loads the multifunctional change machine with cash and receives from the bank holding the account of the customer withdrawing money a credit corresponding to the amount withdrawn, is an activity within the meaning of Article 3(o) of the directive and is consequently not subject to authorisation?
(2) If the activity described in Question 1 is not an activity within the meaning of Article 3(o) [of Directive 2007/64]:
Must Article 3(e) of [Directive 2007/64] be interpreted as meaning that the possibility described in Question 1 of withdrawing cash with a PIN is an activity within the meaning of that provision if, simultaneously with the cash withdrawal, a voucher worth EUR 20 is generated for encashment with the arcade supervisor in order to have the supervisor feed coins into a slot machine?
If the activity described in Questions 1 and 2 is not an activity excluded from the scope of the directive by Article 3(o) and/or (e):
(3) (a) Must point 2 of the annex to [Directive 2007/64] be interpreted as meaning that the activity of the gaming arcade operator described in Questions 1 and 2 is a payment service subject to authorisation even though the gaming arcade operator does not operate any account of the customer withdrawing cash?
(3) (b) Must Article 4(3) of [Directive 2007/64] be interpreted as meaning that the activity of the gaming arcade operator described in Questions 1 and 2 is a payment service within the meaning of that provision if the gaming arcade operator provides the service free of charge?
If the Court considers the activity described to be a payment service subject to authorisation:
(4) Must EU law and [Directive 2007/64] be interpreted as precluding criminal penalties for the operation of a cash terminal in a case with the characteristics of the present case if cash terminals of the same kind were or are operated without authorisation in numerous gaming arcades with State concessions and in casinos which are State concessions and in some cases also operated by the State, and the competent authorisation and supervisory authority does not raise any objections?
If the answer to Question 4 is also in the negative:
(5) Must [Directive 2007/64] and the EU law principles of legal certainty and legal clarity and Article 17 of the [Charter of Fundamental Rights] be interpreted as precluding, in a case with the characteristics of the present case, an administrative and judicial practice ordering the surrender to the public purse (“forfeiture”) of the sums of money received by the gaming arcade operator, via a service effected by the network operator, from the banks of the customers who with card and PIN withdrew the cash loaded by the operator and/or vouchers to play the slot machines, even though all the credits correspond only to the amounts received by customers from the machines in cash and vouchers to play the slot machines?’