Article 15 - Freedom to choose an occupation and right to engage in work
Article 16 - Freedom to conduct a business
Article 17 - Right to property
Article 50 - Right not to be tried or punished twice in criminal proceedings for the same criminal offence
Article 51 - Field of application
Article 52 - Scope and interpretation
On those grounds, the Court (Third Chamber) hereby rules:
Article 56 TFEU must be interpreted as precluding national legislation, such as that at issue in the main proceedings, where that legislation does not actually pursue the objective of protecting gamblers or fighting crime and does not genuinely meet the concern to reduce opportunities for gambling or to fight gambling-related crime in a consistent and systematic manner.
1) This request for a preliminary ruling concerns the interpretation of Article 56 TFEU and Articles 15 to 17, 47 and 50 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
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18) If the Court were, however, to take the view that Article 56 TFEU and Articles 15 to 17 of the Charter do not, for the reasons set out above, prohibit such national legislation, the referring court questions whether, in any event, Article 56 TFEU and Articles 15 to 17, 47 and 50 of the Charter prohibit national legislation in accordance with which the concept of operator, as a person who can potentially be punished in the case of the unauthorised use of gaming machines, is defined very broadly and characterised, in the absence of clear legislative provisions, by the unpredictability associated with the application of administrative and criminal penalties.
19) In those circumstances the Unabhängiger Verwaltungssenat des Landes Oberösterreich (Independent Administrative Tribunal of the Province of Upper Austria) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘1. Does the principle of proportionality laid down in Article 56 TFEU and in Articles 15 to 17 of the Charter preclude national legislation such as the relevant provisions in the main proceedings, namely Paragraphs 3 to 5 and Paragraphs 14 and 21 of the GSpG, which permits the organisation of games of chance using machines only on the condition — which may be enforced by both criminal penalties and direct intervention — of the prior issue of a licence, which are available only in limited numbers, even though — as far as can be seen — the State has not shown thus far in a single judicial or administrative procedure that associated crime and/or addiction to gambling actually constitute a significant problem which cannot be remedied by a controlled expansion of authorised gaming activities to a large number of individual providers, but only by a controlled expansion, coupled with only moderate advertising, by one monopoly holder (or a small number of oligopolists)?
2. If the first question is to be answered in the negative: Does the principle of proportionality laid down in Article 56 TFEU and in Articles 15 to 17 of the Charter preclude national legislation like Paragraphs 52 to 54 of the GSpG, Paragraph 56a of the GSpG and Paragraph 168 of the [Criminal Code] by which, as a result of imprecise legal definitions, there is almost complete criminal liability, even for many forms of only very remotely involved (possibly resident in other European Union Member States) persons (such as the mere sellers or lessors of gaming machines)?
3. If the second question is also to be answered in the negative: Do the requirements relating to democracy and the rule of law on which Article 16 of the Charter is clearly based and/or the requirement of fairness and efficiency under Article 47 of the Charter and/or the obligation of transparency under Article 56 TFEU and/or the right not to be tried or punished twice under Article 50 of the Charter preclude national rules such as Paragraphs 52 to 54 of the GSpG, Paragraph 56a of the GSpG and Paragraph 168 of the [Criminal Code], the delimitation between which is scarcely foreseeable or predictable ex ante for a citizen, in the absence of clear legislative provision, and can be clarified in each specific case only through an expensive formal procedure, but which are associated with extensive differences in terms of competences (administrative authority or court), powers of intervention, the connected stigmatisation in each case and the procedural position (e.g. reversal of the burden of proof)?
4. If one of the first three questions is to be answered in the affirmative: Does Article 56 TFEU and/or Articles 15 to 17 of the Charter and/or Article 50 of the Charter preclude the punishment of persons who have one of the close connections with a gaming machine mentioned in Paragraph 2(1)(1) and Paragraph 2(2) of the GSpG and/or the seizure or confiscation of such machines and/or the closure of the entire undertaking owned by such persons?’
30) The Austrian, Belgian, Dutch and Polish Governments consider that the Charter is not applicable in the main proceedings since, in the non-harmonised area of games of chance, the national legislation concerning that area is not an implementation of EU law within the meaning of Article 51(1) of the Charter.
31) It should be recalled in this respect that the Charter’s field of application so far as concerns action of the Member States is defined in Article 51(1) of the Charter, according to which its provisions are addressed to the Member States only when they are implementing EU law (Case C 617/10 Åkerberg Fransson EU:C:2013:105, paragraph 17).
32) That article of the Charter thus confirms the Court’s case-law relating to the extent to which actions of the Member States must comply with the requirements flowing from the fundamental rights guaranteed in the legal order of the European Union (Åkerberg Fransson EU:C:2013:105, paragraph 18).
33) The Court’s settled case-law indeed states, in essence, that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations. In this respect the Court has already observed that it has no power to examine the compatibility with the Charter of national legislation lying outside the scope of EU law. On the other hand, if such legislation falls within the scope of EU law, the Court, when requested to give a preliminary ruling, must provide all the guidance as to interpretation needed in order for the national court to determine whether that legislation is compatible with the fundamental rights the observance of which the Court ensures (Åkerberg Fransson EU:C:2013:105, paragraph 19).
34) Since the fundamental rights guaranteed by the Charter must therefore be complied with where national legislation falls within the scope of EU law, situations cannot exist which are covered in that way by EU law without those fundamental rights being applicable. The applicability of EU law entails applicability of the fundamental rights guaranteed by the Charter (Åkerberg Fransson EU:C:2013:105, paragraph 21).
35) In that regard, the Court has already held that, where a Member State relies on overriding requirements in the public interest in order to justify rules which are liable to obstruct the exercise of the freedom to provide services, such justification, provided for by EU law, must be interpreted in the light of the general principles of EU law, in particular the fundamental rights henceforth guaranteed by the Charter. Thus the national rules in question can fall under the exceptions provided for only if they are compatible with the fundamental rights the observance of which is ensured by the Court (see, to that effect, Case C‑260/89 ERT EU:C:1991:254, paragraph 43).
36) As follows from that case-law, where it is apparent that national legislation is such as to obstruct the exercise of one or more fundamental freedoms guaranteed by the Treaty, it may benefit from the exceptions provided for by EU law in order to justify that fact only in so far as that complies with the fundamental rights enforced by the Court. That obligation to comply with fundamental rights manifestly comes within the scope of EU law and, consequently, within that of the Charter. The use by a Member State of exceptions provided for by EU law in order to justify an obstruction of a fundamental freedom guaranteed by the Treaty must, therefore, be regarded, as the Advocate General states in point 46 of her Opinion, as ‘implementing Union law’ within the meaning of Article 51(1) of the Charter.
38) By its first question, the referring court essentially asks whether Article 56 TFEU and Articles 15 to 17 of the Charter must be interpreted as precluding national legislation such as that at issue in the main proceedings.
57) National legislation that is restrictive from the point of view of Article 56 TFEU, such as that at issue in the main proceedings, is also capable of limiting the freedom to choose an occupation, the freedom to conduct a business and the right to property enshrined in Articles 15 to 17 of the Charter.
58) Under Article 52(1) of the Charter, for such a limitation to be admissible, it must be provided for by law and respect the essence of those rights and freedoms. Furthermore, subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.
59) As the Advocate General states in points 63 to 70 of her Opinion, in circumstances such as those at issue in the main proceedings, an unjustified or disproportionate restriction of the freedom to provide services under Article 56 TFEU is also not permitted under Article 52(1) of the Charter in relation to Articles 15 to 17 of the Charter.
60) It follows that, in the present case, an examination of the restriction represented by the national legislation at issue in the main proceedings from the point of view of Article 56 TFEU covers also possible limitations of the exercise of the rights and freedoms provided for in Articles 15 to 17 of the Charter, so that a separate examination is not necessary.
63) By its fourth question, the referring court asks, in essence, whether Article 56 TFEU and Articles 15 to 17 and 50 of the Charter must be interpreted as precluding penalties, such as those provided for by the national legislation at issue in the main proceedings, which include the confiscation and destruction of gaming machines and the closure of the establishment in which those machines are made available to the public.
