Robert Pfleger and Others.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Toader
• ECLI: ECLI:EU:C:2014:281
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C‑390/12
• Celex Number: 62012CJ0390
• Date: 30 April 2014

JUDGMENT OF THE COURT (Third Chamber)

30 April 2014 ( *1 )

‛Article 56 TFEU — Freedom to provide services — Charter of Fundamental Rights of the European Union — Articles 15 to 17, 47 and 50 — Freedom to choose an occupation, right to engage in work, freedom to conduct a business, right to property, right to an effective remedy and access to an impartial tribunal, ne bis in idem principle — Article 51 — Scope — Implementation of EU law — Games of chance — Restrictive legislation of a Member State — Administrative and criminal penalties — Overriding reasons in the public interest — Proportionality’

In Case C‑390/12,

REQUEST for a preliminary ruling under Article 267 TFEU from the Unabhängiger Verwaltungssenat des Landes Oberösterreich (now Landesverwaltungsgericht Oberösterreich, Austria), made by decision of 10 August 2012, received at the Court on 20 August 2012, in the proceedings brought by

Robert Pfleger,

Autoart as,

Mladen Vucicevic,

Maroxx Software GmbH,

Hans-Jörg Zehetner,

THE COURT (Third Chamber),

composed of M. Ilešič, President of the Chamber, C.G. Fernlund, A. Ó Caoimh, C. Toader (Rapporteur) and E. Jarašiūnas, Judges,

Advocate General: E. Sharpston,

Registrar: K. Malacek, Administrator,

having regard to the written procedure and further to the hearing on 17 June 2013,

after considering the observations submitted on behalf of:

— Mr Vucicevic, by A. Rabl and A. Auer, Rechtsanwälte,

— Maroxx Software GmbH, by F. Wennig and F. Maschke, Rechtsanwälte,

— Mr Zehetner, by P. Ruth, Rechtsanwalt,

— the Austrian Government, by C. Pesendorfer, acting as Agent,

— the Belgian Government, by M. Jacobs and L. Van den Broeck, acting as Agents, and P. Vlaemminck, advocaat,

— the Netherlands Government, by K. Bulterman and C. Wissels, acting as Agents,

— the Polish Government, by B. Majczyna and M. Szpunar, acting as Agents,

— the Portuguese Government, by L. Inez Fernandes, A. Silva Coelho and P. de Sousa Inês, acting as Agents,

— the European Commission, by B.-R. Killmann and I. Rogalski, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 14 November 2013,

gives the following

Judgment

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’).

2 The request has been made in proceedings brought by Mr Pfleger, Autoart as (‘Autoart’), Mr Vucicevic, Maroxx Software GmbH (‘Maroxx’) and Mr Zehetner concerning administrative penalties imposed on them for the unauthorised operation of games of chance using machines.

Austrian legal context

The Federal Law on games of chance

3 Paragraph 2, ‘Lotteries’, of the Federal Law of 28 November 1989 on games of chance (Glücksspielgesetz, BGBl. 620/1989), in the version applicable to the main proceedings (‘the GSpG’), provides: ‘(1) Lotteries are games of chance 1. which an operator arranges, organises, offers or makes available, and 2. in which gamblers or other persons make a payment (stake) in connection with participation in a game of chance, and 3. in which the prospect of a payment (payout) is provided by the operator, gamblers or other persons. (2) An operator is a person who, independently, exercises a permanent activity in order to receive income from the operation of games of chance, even if that activity is not intended to make a profit. Where several persons, in agreement with each other, offer in one place partial services in order to operate games of chance with the making of payments within the meaning of points 2 and 3 of subparagraph 1, all the persons participating directly in the operation of the game of chance are deemed to be operators, even if some of them do not have the intention of receiving income or participate only in the arrangement, organisation or offer of the game of chance. (3) There is a lottery using gaming machines where the decision on the outcome of the game is taken not centrally, but by a mechanical or electronic device incorporated in the gaming machine itself. … (4) Prohibited lotteries are lotteries for which no licence or authorisation under the present Federal law has been granted, and which are not excluded from the Federal State’s monopoly of games of chance provided for in Paragraph 4.’

4 Under Paragraph 3 of the GSpG, ‘Monopoly of games of chance’, the right to organise games of chance is reserved to the Federal State.

5 However, under Paragraph 5 of the GSpG, lotteries using gaming machines are governed by provincial law. Furthermore, that paragraph provides that each of the nine provinces may grant a third party, by means of a licence, the right to operate lotteries using gaming machines, in accordance with the minimum requirements of a public policy nature, set out in detail in that provision, concerning applicants for authorisation and special accompanying measures for the protection of gamblers. Such lotteries, called ‘minor games of chance’, are operated either in arcades containing a minimum of 10 and a maximum of 50 gaming machines, a maximum stake of up to EUR 10 and a maximum payout of up to EUR 10 000 per game, or in the form of an individual installation of gaming machines, with a maximum of three gaming machines, a maximum stake of up to EUR 1 and a maximum payout of up to EUR 1 000 per game, the number of authorisations for the operation of gaming machines for a maximum duration of 15 years each being limited to three per province.

6 Paragraph 52 of the GSpG, ‘Provisions on administrative penalties’, provides: ‘(1) An administrative offence punishable by a fine imposed by the administrative authorities of up to EUR 22 000 is committed where: 1. a person, for the purpose of participation from national territory, arranges, organises or makes available in the course of business prohibited lotteries within the meaning of Paragraph 2(4), or participates in them as an operator within the meaning of Paragraph 2(2); … (2) Where, in connection with participation in lotteries, payments of more than EUR 10 per game are made by gamblers or other persons, those are no longer regarded as minor amounts, and in that respect any liability under the present Federal law is superseded by any liability under Paragraph 168 of the Criminal Code [(Strafgesetzbuch)]. (3) Where administrative offences within the meaning of subparagraph 1 are not committed on the national territory, they are deemed to have been committed in the place from which the participation in the national territory takes place. (4) Participation in electronic lotteries for which no licence has been granted by the Federal Minister of Finance is an offence if the necessary stakes are placed from the national territory. Infringement of that prohibition is punishable by a fine of up to EUR 7 500 where it is committed intentionally, and otherwise by a fine of up to EUR 1 500. …’

7 In accordance with Paragraphs 53, 54 and 56a of the GSpG, that power of the administration to impose penalties is accompanied by extensive powers to take precautionary measures to prevent further infringements of the monopoly of games of chance within the meaning of Paragraph 3 of the GSpG. Those powers consist of the provisional or definitive seizure of gaming machines and other infringing objects, their confiscation and subsequent destruction, and the closure of the establishment in which those machines were made available to the public, as laid down in Paragraphs 53(1) and (2), 54(1) and (3), and 56a of the GSpG.

The Criminal Code

8 In addition to administrative penalties that may be imposed under the GSpG, the organisation of games of chance for commercial purposes by a person who does not hold a licence may also give rise to criminal proceedings in Austria. In accordance with Paragraph 168(1) of the Criminal Code, ‘any person who organises a game in which winning and losing depend exclusively or predominantly on chance or which is expressly prohibited, or who promotes a meeting organised with a view to such a game taking place, in order to obtain a pecuniary advantage for himself or another person from that organisation or meeting’ commits an offence. The penalties are imprisonment for up to six months or a fine of up to 360 daily rates. Under Paragraph 168(2) of the code, ‘any person who participates in such a game in the course of a business’ is liable to the same penalties.

The actions in the main proceedings and the questions referred for a preliminary ruling

9 It is apparent from the order for reference and the file before the Court that the present request for a preliminary ruling is the result of four disputes pending before the referring court, in all of which gaming machines operated without authorisation and thus allegedly used to organise games of chance prohibited under the GSpG were provisionally seized following controls carried out in various places in Upper Austria.

10 In the context of the first set of proceedings, on 29 March 2012 executive agents of the finance police carried out an inspection of the ‘Cash-Point’ establishment in Perg (Austria) and, following that inspection, six gaming machines which did not have administrative authorisation were seized provisionally. On 12 June 2012 the Bezirkshauptmannschaft (district authority) of Perg adopted decisions confirming the provisional seizure against Mr Pfleger,...