29.10.2011   

EN

Official Journal of the European Union

C 319/3

Judgment of the Court (Fourth Chamber) of 15 September 2011 (reference for a preliminary ruling from the Bezirksgericht Linz — Austria) — Criminal proceedings against Jochen Dickinger, Franz Ömer

(Case C-347/09) (1)

(Freedom to provide services - Freedom of establishment - National legislation laying down a monopoly of the operation of internet casino games - Conditions under which permissible - Expansionist commercial policy - Checks on operators of games of chance carried out in other Member States - Monopoly awarded to a company governed by private law - Possibility of obtaining the monopoly reserved to capital companies established in national territory - Holder of the monopoly prohibited from setting up branches outside the Member State of establishment)

2011/C 319/04

Language of the case: German

Referring court

Bezirksgericht Linz

Parties in the main proceedings

Jochen Dickinger, Franz Ömer

Re:

Reference for a preliminary ruling — Bezirksgericht Linz — Interpretation of Articles 43 EC and 49 EC — National legislation prohibiting, on pain of criminal penalties, the operation of games of chance without a licence issued by the competent authority, but reserving the possibility of obtaining such a licence, for a maximum period of 15 years, to capital companies which are established within the country and which do not have branches abroad

Operative part of the judgment

1.

European Union law, in particular Article 49 EC, precludes the imposition of criminal penalties for infringing a monopoly of operating games of chance, such as the monopoly of operating online casino games laid down by the national legislation at issue in the main proceedings, if such legislation is not compatible with European Union law.

2.

Article 49 EC must be interpreted as applying to services of games of chance marketed over the internet in the territory of a host Member State by an operator established in another Member State despite the fact that the operator:

—

has set up certain computer support infrastructure, such as a server, in the host Member State and

—

makes use of computer support services of a provider established in the host Member State in order to provide his services to consumers who are likewise established in that Member State.

3.

Article 49 EC must be interpreted as meaning that:

(a)

a Member State seeking to ensure a particularly high level of consumer protection in the sector of games of chance may be entitled to consider that it is only by setting up a monopoly for a single entity subject to strict control by the public authorities that it can tackle crime linked to that sector and pursue the objective of preventing incitement to squander money on gambling and combating addiction to gambling with sufficient effectiveness;

(b)

to be consistent with the objective of fighting crime and reducing opportunities for gambling, national legislation establishing a monopoly of games of chance which allows the holder of the monopoly to follow an expansionist policy must:

—

be based on a finding that the crime and fraud linked to gaming and addiction to gambling are a problem in the Member State concerned which could be remedied by expanding authorised regulated activities, and

—

allow only moderate advertising limited strictly to what is necessary for channelling consumers towards monitored gaming networks;

(c)

the fact that a Member State has opted for a system of protection that differs from that adopted by another Member State cannot affect the assessment of the need for and proportionality of the relevant provisions, which must be assessed solely by reference to the objectives pursued by the competent authorities of the Member State concerned and the level of protection which they seek to ensure.

(1)  OJ C 282, 21.11.2009.