Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Date: 14 October 2004

Case C-36/02

Omega Spielhallen- und Automatenaufstellungs-GmbH

v

Oberbürgermeisterin der Bundesstadt Bonn

(Reference for a preliminary ruling from the Bundesverwaltungsgericht)

(Freedom to provide services – Free movement of goods – Restrictions – Public policy – Human dignity – Protection of fundamental values laid down by the national constitution – ‘Playing at killing’)

Summary of the Judgment

1. Freedom to provide services – Restrictions – Justification on grounds of public policy – Need for and proportionality of the measures – Existence of different systems of protection in other Member States – Not relevant

(Arts 46 EC and 49 EC)

2. Freedom to provide services – Restrictions – National legislation prohibiting the commercial exploitation of games simulating acts of homicide – Justification – Protection of public policy – Respect for human dignity as a general principle of law

(Arts 46 EC and 49 EC)

1. Whilst measures which restrict the freedom to provide services may be justified on public policy grounds only if they are necessary for the protection of the interests which they are intended to guarantee and only in so far as those objectives cannot be attained by less restrictive measures, it is not indispensable in that respect for the restrictive measure issued by the authorities of a Member State to correspond to a conception shared by all Member States as regards the precise way in which the fundamental right or legitimate interest in question is to be protected. Thus the need for, and proportionality of, the provisions adopted are not excluded merely because one Member State has chosen a system of protection different from that adopted by another State.

(see paras 36-38)

2. Community law does not preclude an economic activity consisting of the commercial exploitation of games simulating acts of homicide from being made subject to a national prohibition measure adopted on grounds of protecting public policy by reason of the fact that that activity is an affront to human dignity.

That measure cannot be regarded as one imposing an unjustified restriction on the freedom to provide services. In the first place, the protection of fundamental rights, it being stated that the Community legal order undeniably strives to ensure respect for human dignity as a general principle of law, constitutes a legitimate interest capable in principle of justifying a restriction on the obligations imposed by Community law, even by virtue of a fundamental freedom guaranteed by the Treaty such as the freedom to provide services. Secondly, the measure in question corresponds to the level of protection of human dignity which the national constitution intended to ensure in the territory of the Member State concerned and does not go beyond what is necessary to achieve the objective pursued.

(see paras 34-35, 39-41, operative part)

JUDGMENT OF THE COURT (First Chamber)
14 October 2004(1)

(Freedom to provide services – Free movement of goods – Restrictions – Public policy – Human dignity – Protection of fundamental values laid down in the national constitution – ‘Playing at killing’)

In Case C-36/02,REFERENCE for a preliminary ruling under Article 234 EC,from the Bundesverwaltungsgericht (Germany), made by decision of 24 October 2001, received at the Court on 12 February 2002, in proceedings between: Omega Spielhallen- und Automatenaufstellungs-GmbH

v

Oberbürgermeisterin der Bundesstadt Bonn,

THE COURT (First Chamber),,

composed of P. Jann, President of the Chamber, A. Rosas (Rapporteur), R. Silva de Lapuerta, K. Lenaerts and S. von Bahr, Judges, and Advocate General: C. Stix-Hackl,
Registrar: M.-F. Contet, Principal Administrator, having regard to the written procedure and further to the hearing on 4 February 2004,after considering the observations submitted on behalf of:

–

Omega Spielhallen- und Automatenaufstellungs-GmbH, by P. Tuxhorn, Rechtsanwalt,

–

Oberbürgermeisterin der Bundesstadt Bonn, by F. Montag, Rechtsanwalt,

–

the German Government, by W.-D. Plessing, acting as Agent,

–

the Commission of the European Communities, by M. Patakia and C. Schmidt, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 18 March 2004,

gives the following

Judgment

1

This reference for a preliminary ruling concerns the interpretation of Articles 49 to 55 EC on the freedom to provide services and Articles 28 to 30 EC on the free movement of goods.

2

The question referred to the Court of Justice by the Bundesverwaltungsgericht (Federal Administrative Court, Germany) was raised in an appeal on a point of law before that court by Omega Spielhallen- und Automatenaufstellungs-GmbH (‘Omega’), in which that company challenged the compatibility with Community law of a prohibition order issued against it by the Oberbürgermeisterin der Bundesstadt Bonn (‘the Bonn police authority’) on 14 September 1994.

Facts, main proceedings and question referred

3

Omega, a German company, had, since 1 August 1994, been operating an installation known as a ‘laserdrome’, normally used for the practice of ‘laser sport’ in Bonn (Germany). The installation continued to be used after 14 September 1994, Omega having obtained authorisation to continue its use on a provisional basis by an order of the Verwaltungsgericht Köln (Administrative Court, Cologne) of 18 November 1994. The equipment used by Omega in its establishment, which included sub-machine-gun-type laser targeting devices and sensory tags fixed either in the firing corridors or to jackets worn by players, was initially developed from a children’s toy freely available on the market. That equipment having proved technically inadequate, Omega turned, from a date not specified but later than 2 December 1994, to equipment supplied by the British company Pulsar International Ltd (which subsequently became Pulsar Advanced Games Systems Ltd, hereinafter referred to as ‘Pulsar’). However, a franchising contract with Pulsar was not concluded until 29 May 1997.

4

Even before the public opening of the ‘laserdrome’, a part of the population manifested its opposition to the project. At the beginning of 1994, the Bonn police authority ordered Omega to supply it with a precise description of the working of the game intended in the ‘laserdrome’ and, by letter of 22 February 1994, warned it of its intention to issue a prohibition order in the event of it being possible to ‘play at killing’ people there. Omega replied, on 18 March 1994, that the game merely involved hitting fixed sensory tags installed in the firing corridors.

5

Having noticed that the object of the game played in the ‘laserdrome’ also included hitting sensory tags placed on the jackets worn by players, the Bonn police authority issued an order against Omega on 14 September 1994, forbidding it from ‘facilitating or allowing in its […] establishment games with the object of firing on human targets using a laser beam or other technical devices (such as infrared, for example), thereby, by recording shots hitting their targets, “playing at killing” people’, on pain of a DEM 10 000 fine for each game played in breach of the order.

6

That order was issued under powers conferred by Paragraph 14(1) of the Ordnungsbehördengesetz Nordrhein-Westfalen (Law governing the North Rhine-Westphalia Police authorities; ‘the OBG NW’), which provides: ‘The police authorities may take measures necessary to avert a risk to public order or safety in an individual case’.

7

According to the prohibition order of 14 September 1994, the games which took place in Omega’s establishment constituted a danger to public order, since the acts of simulated homicide and the trivialisation of violence thereby engendered were contary to fundamental values prevailing in public opinion.

8

Omega’s objection against that order was rejected by the Bezirksregierung Köln (Cologne District Authority) on 6 November 1995. By judgement of 3 September 1998, the Verwaltungsgericht Köln (Cologne Administrative Court) dismissed the ensuing court action. Omega’s appeal was also dismissed, on 27 September 2000, by the Oberverwaltungsgericht für das Land Nordrhein-Westfalen (Higher Administrative Court for the Land of North Rhine-Westphalia) (Germany).

9

Omega then appealed on a point of law to the Bundesverwaltungsgericht (Federal Administrative Court). In support of its appeal,...