C-6/01

I - 8624

ANOMAR AND OTHERS

The provisions of this article shall apply to The Council may, acting by a qualified any body through which a Member State, majority on a proposal from the Commis- in law or in fact, either directly or indirectly sion, extend the provisions of the Chapter supervises, determines or appreciably to nationals of a third country who provide influences imports or exports between services and who are established within the Member States. These provisions shall Community.' likewise apply to monopolies delegated by the State to others.

2. Member States shall refrain from intro- B — Portuguese legislation ducing any new measure which is contrary to the principles laid down in paragraph 1 or which restricts the scope of the Articles dealing with the prohibition of customs 6. The Portuguese rules on gaming are laid duties and quantitative restrictions between down by Decree-Law No 422/89 of Member States. 2 December 1989 (hereinafter: 'Decree- Law No 422/89' or simply 'the Decree'), 2 which reserves for the State the right to operate and engage in games of chance and combinations of games of chance and other ... .' games, by providing that the operation of and engagement in such games outside the gaming areas prescribed by law and the establishments which hold a public licence constitute a criminal offence.

8. Decree-Law No 422/89 makes the oper- ation of and engagement in games of chance subject to a twofold limitation: on the one hand, the right to operate such 11. Moreover, since, in accordance with games is reserved for the State and may be Article 68 of the Decree, the authorisation exercised solely by undertakings incorpor- of the Inspectorate-General for Gaming ated as public limited companies, which and Betting is required for the manufacture, have to enter into an administrative licen- export, import, sale and transport of equip- sing agreement with the State on the basis ment specifically designed for the exploi- of a public tendering procedure (Article 9). tation of games of chance, Article 115 Furthermore, the operation of and engage- provides that any person manufacturing, ment in such games must take place advertising, importing, transporting, mar- exclusively in authorised locations and, keting, exhibiting or distributing such more precisely, in permanent or temporary equipment without such authorisation is gaming areas defined by decree-law, as well subject to up to two years' imprisonment as (in exceptional cases and subject to and a fine. ministerial authorisation) on ships, aircraft, premises reserved for the game of bingo and on the occasion of events of major tourist interest (Article 3(1), (6), (7) and (8))·

12. Also material in this connection is Decree-Law No 316/95 of 28 November 1995 (hereinafter: 'Decree-Law No 316/95'), Article 16 of which draws a 9. Under Article 108 of the Decree, anyone distinction between games of chance and exploiting, in any way, games of chance 'amusement machines', the latter defined as outside the premises authorised by law is machines which: subject to a sentence of up to two years' imprisonment and a fine.

16. The Associação Nacional de Oper- (b) ... possess the characteristics described adores de Máquinas Recreativas (here- in paragraph (a) above and make it inafter: 'Anomar'), an umbrella association possible to obtain items the commer- for Portuguese operators in the gaming cial value of which is no more than machines sector, together with a number of three times the sum the player pays in.' companies active in the gaming machines sector, all legal persons under Portuguese law operating in Portugal, have brought an action against the Portuguese State before the Vara Cível, seeking recognition of their right to engage in the commercial operation of games of chance outside the gaming 13. It is for the Inspectorate-General for zones laid down by law, thus putting an Gaming and Betting to classify 'games the end to the monopoly of casinos which result of which depends exclusively or Anomar considers to be contrary to the essentially on the player's skill' as provided principles of Community law. Secondly, for in Article 16 of Decree-Law No 316/95. again on the ground of incompatibility with Community law, the claimants are seeking a declaration that Articles 108, 110, 111 and 115 of Decree-Law No 422/89 are inapplicable, since they make the operation of and engagement in games of chance, as 14. Any person wishing to import, manu- well as the unauthorised trade in equipment facture, assemble or sell 'amusement specifically designed for playing games of machines' must request the Inspectorate- chance, a criminal offence. General for Gaming and Betting to classify the game operated by the machine in question, and the relevant classification document must accompany the machine (Article 19 of Decree-Law No 316/95).

' 1 . Do games of chance constitute an 6. Does a body of legal rules (such as is "economic activity" within the mean- established in Articles 3(1) and 4(1) of ing of Article 2 EC? Decree-Law No 422 of 2 December 1989) under which the operation of and engagement in games of chance (defined by Article 1 of that instrument as "those whose result is uncertain since it depends exclusively or funda- mentally on chance") — which 2. Do games of chance constitute an include (under Article 4(1)(f) and (g) activity relating to "goods" which is of Decree-Law No 422/89) games covered, as such, by Article 28 EC? played on machines which pay out prizes directly in tokens or money and games on machines which, while not paying out directly prizes in tokens or money, involve matters proper to games of chance or have as their result 3. Are activities relating to the manufac- the awarding of points depending ture, importation and distribution of exclusively on chance — is authorised gaming machines separate from the only in casinos in permanent or tem- operation of such machines and, there- porary gaming areas created by decree- fore, is the principle of the free move- law, constitute a barrier to the freedom ment of goods laid down by Articles 28 to provide services, in the sense con- and 29 EC applicable to such activ- templated in Article 49 EC? ities?

4. Are the operation of and engagement in games of chance excluded from the scope of Article 31 EC, in view of the 7. On the basis that the restrictive rules fact that that provision does not cover described at 6 above do constitute a monopolies in the provision of ser- barrier to freedom to provide services, vices? in the sense contemplated in Article 49

9. Do the restrictions laid down in the Portuguese legislation on the activity of operation of games of chance comply 12. Do the imprecise legal concepts to with the principle of proportionality? which the Portuguese legislation resorts in defining "games of chance" (Articles 1 and 162 4 of Decree-Law No 422/89, cited above) and "amuse-

10. Do the Portuguese rules making auth- 3 — Sic. I should, however, point out that the Decree in question contains only 167 articles, and that it is not possible to orisation subject to legal (conclusion of identify the provision which the national court wishes to cite an administrative contract with the from either the order for reference or elsewhere in the file. 4 — Sic. I must, however, point out that Article 162, which is not State following a tendering procedure: mentioned elsewhere in the order for reference, refers Article 9 of the abovementioned neither to games of chance nor to amusement machines, but to a different category of games, games of skill, which Decree-Law No 422/89) and logistical are not relevant to these proceedings.

I - 8629

OPINION OF MR TIZZANO — CASE C-6/01

ment machines" (Article 16 of Decree- IV — Legal analysis Law No 316/95, cited above) call for interpretation, for the purpose of clas- sifying the various types of amusement machines, which also falls within the margin of assessment which the national authorities enjoy? A — The strictly domestic scope of the questions referred to the Court and their admissibility

19. I shall begin by reviewing a number of 13. Even if it were considered that the preliminary issues concerning the relevance Portuguese legislation at issue does not and admissibility of the questions referred lay down objective criteria to distin- by the national court. guish between gaming machines and amusement machines, does the confer- ring on the Inspecção-Geral de Jogos (Inspectorate-General for Gaming and Betting) of a discretionary power to classify in matters of gaming infringe any principle or rule of Community law?' The strictly domestic nature of the case

and establishment do not apply where the 22. According to that case-law, 'Articles 48, activity in question is limited to the terri- 52 and 59 of the Treaty [on freedom of tory of a single Member State. Nor is the movement for workers, the right of estab- merely theoretical possibility of trans- lishment and the freedom to provide ser- national situations arising in a context of vices] cannot be applied to actions which that nature sufficient to establish the link are confined in all respects within a single required for the purpose of applying the Member State'. 11 That principle, specifi- Treaty. 7The Court followed that doctrine cally reiterated inter alia in other cases in in its judgments in Schindler, 8Zenatti 9 which the compatibility of national provi- and Läärä, 10 concerning lotteries, betting sions establishing a State monopoly on the and gaming machines respectively. operation of games of chance was at issue, 12 clearly reflects the rationale of the

territory. It is therefore not disputed that the parties to the main action have not 23. That consistent case-law is not called relied on any fundamental freedom guar- into question in this case. At issue is anteed by the Treaty and that all of the facts in that case are confined to the national territory of a single Member State. 11 — Case C-134/95 USSL No 47 di Biella [1997] ECR I-195, Consequently, this appears clearly to be the paragraph 19. To the same effect, see, among many, Case 286/81 Oosthoek's Uitgeversmaatschappij [1982] ECR kind of strictly domestic situation in which, 4575, paragraph 9, Case 20/87 Gauchara, cited above, paragraph 12, Case C-41/90 Höfner and Elser, cited according to the settled case-law of the above, paragraph 37, Case C-332/90 Steen [1992] ECR Court of Justice, it is not possible to rely on I-341, paragraph 9, Joined Cases C-29/94 to C-35/94 Aubertin and Others (1995] ECR I-301, paragraph 9, Case the provisions of the Treaty on fundamen- C-108/98 RI.SAN. [1999] ECR I-5219, paragraph 23, a n d Case C-97/98 Jägerskiöld [1999] ECR I-7319, paragraph tal freedoms. 42. 12 — See, in particular, Case C-67/98 (cited in footnote 9 above), paragraph 24, and Läärä (cited in footnote 10 above), paragraph 27, in which the Court held that 'such activities fall within the scope of Article 59 of the [EC| 7 — C a s e C-41/90 Höfner and Elser | 1 9 9 1 | ECR I-1979, Treaty (now, after amendment, Article 49 EC), since at paragraph 39, and Case C-70/95 Sodemare [1997] ECR least one of the service providers is established in a I-3395, paragraph 39. Member State other than that in which the service is

I - 8631

OPINION OF MR TIZZANO — CASE C-6/01

14 — See, in particular, Case 20/87 (cited in footnote 6 above), Case C-41/90 (cited in footnote 7 above), Case C-332/90, Joined Cases C-29/94 to C-35/94, Case C-134/95, Case 26. That approach was, moreover, con- C-108/98 and Case C-97/98 (all cited in footnote 11 above). firmed in the later judgment in Reisch, in 15 — See, in particular, Case 298/87 Smtmor [1988] ECR 4489 which the Court was called upon to inter- and Joined Cases C-321/94 to C-324/94 Pistre [1997] ECR I-2343. pret the provisions of the Treaty on the free 16 — See Case C-448/98 Guimont [2000] ECR I-10663. Sub- sequently, Case C-379/98 PreussenElektra [2001] ECR I-2099, Joined Cases C-515/99, C-519/99 to C-524/99 and C-526/99 to C-540/99 Reisch [2002] ECR I-2157. On a conceptually related matter, see most recently, Case 17 — Guimont, op. cit., paragraph 22. C-306/99 BIAO [2003] ECR I-1, paragraphs 88 et seq. 18 — Guimont, op. cit., paragraph 23.

I - 8632

ANOMAR AND OTHERS

movement of capital with reference to be rejected. I therefore consider that in this national legislation prohibiting the use of case the Court must consider the merits of certain land for the construction of holiday the questions referred by the Vara Cível. homes.

The admissibility of a question concerning the 'validity' of national law

19 — Reisch, paragraphs 24 to 26. 20 — See, in particular, the Opinion of Advocate General Saggio in Guimont, point 7; previously, see the criticism of that 31. It is true that the Court has on several approach in the Opinion of Advocate General Jacobs in occasions stated that, in the context of Cases C-28/95 and C-130/95 Leur-Bloem and Giloy [1997] ECR I-4161, paragraphs 73 and 75. proceedings for a preliminary ruling 'the

I - 8633

OPINION OF MR TIZZANO — CASE C-6/01

Court may not rule on the compatibility of 34. Unlike the objections I analysed earlier, the provisions of a national law with the those objections are not all-encompassing, Treaty'; but it has always gone on to say inasmuch as they do not call into question that 'it has jurisdiction to provide the the order for reference as a whole, but national court with all the criteria of inter- actually concern the admissibility of indi- pretation relating to Community law which vidual questions. I shall therefore assess may enable it to assess such compatibil- them as I review the substance of those ity.' 21 questions.

32. Consequently, in this case also, were the Court to decide to give a ruling on the merits of the questions referred by the Vara B — Substance Cível, it could not, of course, rule on the validity of the national law, but it could provide the requested interpretation of Community law, leaving it to the national court to apply it in the specific case, including, possibly, by setting aside any provisions of national law which might The first question prove incompatible with the Treaty.

37. In Schindler in particular, with specific ation of games of chance is an activity reference to lotteries, but in an analysis relating to 'goods' within the meaning of applicable to any type of game of chance, Article 28 EC, and whether activities relat- the Court made clear that neither the ing to the manufacture, importation and element of chance which characterises such distribution of gaming machines are separ- games nor their recreational aspect prevent ate from the commercial operation of such them having an economic nature. Games of machines and, therefore, whether the free chance in fact 'give the players, if not movement of goods embraces such activ- always a win, at least the hope of a win, but ities. also yields a gain for the operator' and therefore automatically constitutes an economic activity; nor is it deprived of its economic character because 'in many Member States the law provides that the profits made by a lottery may be used only for certain purposes, in particular the public interest, or may even be required to be paid into the State budget.' 24

41. According to the Portuguese, German 43. The Commission, for its part, endorses and Belgian Governments, however, the the arguments of the Spanish and Finnish determining fact is that, for the purposes of Governments, but considers that it is not applying the national rules in question, the possible to assess the effect of Article 28 et activities relating to the production and seq. on the dispute pending before the marketing of gaming machines are not in national court because that court has failed themselves of significance but are taken to provide any relevant data. into consideration solely in so far as they are accessories to the commercial operation of games of chance. Accordingly, it is not Community provisions on the free move- ment of goods which apply in that context but the provisions relating to services, to which the main activity relates. 44. In analysing the views submitted, I should first point out that, according to the settled case-law of the Court, 'goods' means 'products which can be valued in money and which are capable, as such, of forming the substance of commercial trans- actions'. 26

50. In that connection, I must stress that in this case the order for reference provides no 47. That view cannot, moreover, be chal- information to help clarify the legal lenged on the ground that gaming machines arrangements to which the importation are an accessory to an activity relating to and marketing of gaming machines are the provision of services, since, as the Court subject under Portuguese law. The only has already had occasion to specify in piece of legal data proffered is the require- Läärä, 'it is true that such machines are ment that anyone wishing to market gam- intended to be made available to the public ing machines must obtain authorisation for use in return for payment'. 'However... from the Inspectorate-General for Gaming the fact that an imported item is intended and Betting. But there is no mention of the for the supply of a service does not in itself conditions to which that authorisation is mean that it falls outside the rules regard- subject or the nature of the powers of the ing freedom of movement' of goods. 2 7 Inspectorate-General and, in particular, there is no indication of whether or not the latter enjoys a power of assessment.

48. It follows that the second and third questions must be answered generally to the effect that national measures which may influence intra-Community trade in 51. In those circumstances, it does not gaming machines must in principle be appear to me that the Court has enough assessed in light of Article 28 EC. information to ascertain the extent to which intra-Community trade in goods may be impeded by the Portuguese rules — far less to analyse the need for and proportionality of those rules. In the light of the above elements, I do not therefore believe that the proper procedural 49. However, the real issue raised, albeit conditions have been met, having regard to not expressly, by the questions referred — the purpose of the proceedings and the conditions expressly laid down by - Article 20 of the Protocol on the Statute 27 — Case C-124/97 (cited in footnote 10 above), paragraph 24. of the Court of Justice.

55. According to the claimants in the main The information provided... in orders for action, the aim of Article 31 EC is to secure reference must not only be such as to full implementation of the free movement enable the Court usefully to reply but must of goods. However, since, in their view, the also make it possible for the governments Portuguese rules on games of chance of the Member States and other interested actually constitute an obstacle to that free- parties to submit observations pursuant to dom, they conclude that the effectiveness of Article 20 of the EC Statute of the Court of Article 31 EC can be ensured only if the Justice.' 28 concept of 'body through which a Member State... supervises, determines or... influences imports or exports between Member States' is given a wide interpre- tation, encompassing all public services and commercial activities, whether in the public or the private sector. 53. In this case therefore, in the absence of adequate information on the conditions to which the marketing and importation of gaming machines are subject under Por- tuguese law, the Court is not able to give a ruling on whether Article 28 EC is a bar to the application of the national legislation at 56. The governments which have inter- issue. vened point out that Article 31 EC applies exclusively to commercial monopolies and not monopolies which relate to the activity 28 — See, most recently, the order of the Court of Justice of of providing services. They essentially 2 March 1999 in Case C-422/98 Colonia Versicherung [1999] ECR I-1279, paragraphs 4 and 5. Previously, see claim that, by providing for special and Joined Cases C-320/90 to C-322/90 Telemarsicabruzzo and Others [1993] ECR I-393, paragraph 6. exclusive rights to exploit games of chance,

57. Although in principle sharing that view, the Commission further contends that a State monopoly relating to the 60. I must, however, point out that, as I provision of services could have an indirect have already stated in relation to the influence on the trade in goods between the second and third questions (point 49 et Member States, as the Court pointed out in seq. above), the national court has not its judgment in Gervais. 29 Moreover, the furnished the Court of Justice with the Commission goes on to state that it is for information it needs to assess the impact the national court to assess whether the the Portuguese rules on games of chance operation of the monopoly relating to may have on the movement of goods. services at issue in practice has the effect Consequently, the Court has not been put of creating a discriminatory commercial in a position properly to resolve the issue monopoly contrary to Article 31 EC. raised in the fourth question.

58. I must endorse the Commission's observations on this.

61. I therefore conclude that, in the absence of adequate information on the conditions to which Portuguese law sub- 59. Indeed, the Court has previously held jects the marketing and importation of that a monopoly relating to services is in gaming machines, the Court is unable to principle excluded from the scope of answer the question whether Article 31 EC Article 31 EC, 30 even though it then is a bar to the application of the national acknowledged that a monopoly of that legislation at issue.

29 — Case C-17/94 [1995] ECR I-4353, paragraph 36. 31 — Case C-17/94 (cited in footnote 29 above), paragraphs 36 30 — Case 155/73 Sacchi [1974] ECR 409, paragraph 10. and 37.

63. All the interveners agree that the com- mercial operation of gaming machines may constitute an activity relating to the provi- sion of services within the meaning of the Treaty. By the same token, none of the interveners questions the fact that, although it applies without discrimination, legislation like that at issue may constitute 65. The intervening governments and the a restriction to the freedom to provide Commission contend, on the other hand, services. However, views differ when it that legislation like the Portuguese legis- comes to establishing whether or not that lation is justified for reasons of public restriction is justified. interest such as the protection of consumers and public morality, the prevention of crime and fraud and the financing of activities in the public interest. Moreover, given that the Portuguese legislation is largely identical to that of Finland and that the Court has already had occasion to rule on the Finnish legislation in Läärä, it is also 64. On the one hand, the claimants in the clear that the Portuguese legislation, like main action point out that the exemptions the Finnish legislation analysed in Läärä, to the freedom to provide services laid observes the principle of proportionality.

I - 8640

ANOMAR AND OTHERS

68. In point of fact, as the Portuguese Government noted in its observations, the legislation in question reflects in particular 71. In Läärä, the Court followed the the aim of limiting exploitation of the approach already apparent from the judg- passion for gaming and averting the risks ment in Schindler and substantially relaxed of crime and fraud that result from such the principle of proportionality which activities. normally applies to implementation of the provisions of the freedom to provide ser- vices, ruling that the power to determine 32 — Case C-67/98 (cited in footnote 9 above), paragraph 24 and Case C-124/97 (cited in footnote 10 above), paragraph the extent of the protection to be afforded 27. by a Member State on its national territory

I - 8641

OPINION OF MR TIZZANO — CASE C-6/01

74. The claimants in the main action point out that the rules that apply in other Member States, such as Spain, the United Kingdom, Germany and Ireland, are more liberal than the Portuguese rules. They further contend that the more restrictive character of the Portuguese rules, as com- pared with those of the abovementioned Member States, and the lack of valid justification for a stricter approach, mean that the rules at issue are 'invalid' or 72. I therefore propose answering the fifth, 'inappropriate'. sixth, seventh, ninth and tenth questions to the effect that legislation, like the Por- tuguese legislation, which restricts the commercial operation of games of chance, including gaming machines, to casinos situated in certain areas stipulated by law, although constituting an obstacle to the freedom to provide services, is justified by 75. Portugal, for its part, objects, first, that public interest requirements and is not the question is inadmissible, since it is disproportionate in relation to those imprecise, general and merely hypothetical. requirements. On the substance, it goes on to say, supported by the Commission and the intervening Member States, that every 33 — Case C-124/97 (cited in footnote 10 above), paragraph 35. Member State has the power to determine 34 — Op. cit., paragraph 37. the level of protection for society against

I - 8642

ANOMAR AND OTHERS

dangers linked to games of chance, at least 79. I therefore suggest that the eighth in the absence of harmonised Community question be answered to the effect that the rules. power of assessment a Member State enjoys in regulating games of chance is not circumscribed by the fact that other Member States may have regulated this field differently.

I - 8643

OPINION OF MR TIZZANO— CASE C-6/01

conferring such power on those authorities appreciation recognised by the Court on is contrary to Community law and, in that occasion is not confined to selecting particular, the free movement of goods, the regulatory measures; it also includes the freedom of establishment and consumer determining the activities embraced by the protection. concept of games of chance.

82. The Commission and the Portuguese Government consider the abovementioned 84. I must begin by endorsing the objec- questions to be plainly inadmissible, in so tions raised in relation to the admissibility "far as they relate exclusively to the inter- of the questions at issue on the ground that pretation of concepts of Portuguese law. they are obscure and imprecise. However, I They are also inadmissible because they are also agree with those objections in so far as entirely imprecise, and there is absolutely the questions concern the interpretation of no indication of which rules of Community concepts of national law. It is settled case- law the Court is to interpret. law that 'under the system of judicial cooperation established by Article 177 of the Treaty, the interpretation of national rules is a matter for the national courts and not for the Court of Justice'. 37

83. As regards substance, the Portuguese Government points out that the Court has already ruled, albeit indirectly, on this issue, when, in its judgment in Zenatti, it explained that 'determination of the scope of the protection which a Member State 85. I therefore suggest declaring the 11th, intends providing in its territory in relation 12th and 13th questions inadmissible, both to lotteries and other forms of gaming falls because they are merely intended to obtain within the margin of appreciation which from the Court an interpretation of Por- the Court... recognised as being enjoyed by tuguese law (11th and 12th questions) and the national authorities'. 36 In the view of because the reference to 'any principle or the Portuguese Government (with which rule of Community law' (13th question) is the Spanish, Belgian and Finnish Govern- altogether unclear. ments largely concur) the margin of

(2) National measures which may influence intra-Community trade in gaming machines must, in principle, be assessed in the light of Article 28 EC.

(3) In the absence of adequate information on the conditions to which the marketing and importation of gaming machines are subject under Portuguese law, the Court is not able to give a ruling on whether Article 28 EC is a bar to the application of the national legislation at issue.

(4) In the absence of adequate information on the conditions to which the marketing and importation of gaming machines are subject under Portuguese law, the Court is not able to give a ruling on whether Article 31 EC is a bar to the application of the national legislation at issue. I - 8645

OPINION OF MR TIZZANO — CASE C-6/01

(5) Legislation, like the Portuguese legislation, which restricts the commercial operation of games of chance, including gaming machines, to casinos situated in certain areas stipulated by law, although constituting an obstacle to the freedom to provide services, is justified by public-interest requirements and is not disproportionate to those requirements.

(6) The power of assessment a Member State enjoys in regulating games of chance is not circumscribed by the fact that other Member States may have regulated this field differently.