Sportingbet PLC and Internet Opportunity Entertainment Ltd v Santa Casa da Misericórdia de Lisboa and Others.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2020:856
• Date: 22 October 2020
• Docket Number: C-275/19
• Celex Number: 62019CJ0275
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Ninth Chamber)

22 October 2020 (*)

(Reference for a preliminary ruling – Procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services – Notion of ‘technical regulation’ – Obligation on Member States to notify the European Commission of all draft technical regulations – Technical regulations which have not been notified cannot be enforced against individuals – Inapplicability to service providers)

In Case C‑275/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the Supremo Tribunal de Justiça (Supreme Court, Portugal), made by decision of 21 March 2019, received at the Court on 2 April 2019, in the proceedings

Sportingbet PLC,

Internet Opportunity Entertainment Ltd

v

Santa Casa da Misericórdia de Lisboa,

intervening parties:

Sporting Clube de Braga,

Sporting Clube de Braga – Futebol SAD

THE COURT (Ninth Chamber),

composed of N. Piçarra, President of the Chamber, S. Rodin (Rapporteur) and K. Jürimäe, Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 18 June 2020,

after considering the observations submitted on behalf of:

– Sportingbet PLC, by B. Mendes and S. Ribeiro Mendes, advogados,

– Internet Opportunity Entertainment Ltd, by L. Marçal and M. Mendes Pereira, advogados,

– Santa Casa da Misericórdia de Lisboa, by S. Estima Martins, T. Alexandre and P. Faria, advogados,

– the Portuguese Government, by L. Inez Fernandes, J. Gomes de Almeida, A. Pimenta, P. Barros da Costa and A. Silva Coelho, acting as Agents,

– the Belgian Government, by L. Van den Broeck, M. Jacobs and C. Pochet, acting as Agents, and by P. Vlaemminck and R. Verbeke, advocaten,

– the European Commission, by G. Braga da Cruz and M. Jáuregui Gómez, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 1(11) and Article 8(1) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services (OJ 1998 L 204, p. 37), as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998 (OJ 1998 L 217, p. 18) (‘Directive 98/34’).

2 The request has been made in proceedings between, on the one hand, Sportingbet PLC and Internet Opportunity Entertainment Ltd (‘IOE’) and, on the other, Santa Casa da Misericórdia de Lisboa (‘Santa Casa’) concerning the lawfulness of the online operation by Sportingbet and IOE of games of chance and gambling, and the promotion of that activity in Portugal.

Legal context

EU law

Directive 83/189

3 Article 1 of Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1983 L 109, p. 8), as amended by Council Directive 88/182/EEC of 22 March 1988 (OJ 1988 L 81, p. 75) (‘Directive 83/189’), provides:

‘For the purposes of this Directive, the following meanings shall apply:

(1) “technical specification”, a specification contained in a document which lays down the characteristics required of a product such as levels of quality, performance, safety or dimensions, including the requirements applicable to the product as regards terminology, symbols, testing and test methods, packaging, marking or labelling and the production methods and procedures for agricultural products as defined in Article 38(1) of the Treaty and for products intended for human and animal consumption and for medicinal products …

…

(5) “technical regulation”, technical specifications, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing or use in a Member State or a major part thereof, except those laid down by local authorities;

…’

4 Article 8(1) of that directive states the following:

‘Member States shall immediately communicate to the Commission any draft technical regulation, except where such technical regulation merely transposes the full text of an international or European standard, in which case information regarding the relevant standard shall suffice; they shall also let the Commission have a brief statement of the grounds which make the enactment of such a technical regulation necessary, where these are not already made clear in the draft.

…’

Directive 98/34

5 Article 1 of Directive 98/34 provides:

‘For the purposes of this Directive, the following meanings shall apply:

…

(2) “service”: any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.

For the purposes of this definition:

– “at a distance” means that the service is provided without the parties being simultaneously present;

– “by electronic means” means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means.

– “at the individual request of a recipient of services” means that the service is provided through the transmission of data on individual request.

…

(3) “technical specification”, a specification contained in a document which lays down the characteristics required of a product such as levels of quality, performance, safety or dimensions, including the requirements applicable to the product as regards the name under which the product is sold, terminology, symbols, testing and test methods, packaging, marking or labelling and conformity assessment procedures.

…

(4) “other requirements” means a requirement, other than a technical specification, imposed on a product for the purpose of protecting, in particular, consumers or the environment, and which affects its life cycle after it has been placed on the market, such as conditions of use, recycling, reuse or disposal, where such conditions can significantly influence the composition or nature of the product or its marketing;

(5) “rule on services”, requirement of a general nature relating to the taking-up and pursuit of service activities within the meaning of point 2, in particular provisions concerning the service provider, the services and the recipient of services, excluding any rules which are not specifically aimed at the services defined in that point.

…

For the purposes of this definition:

– a rule shall be considered to be specifically aimed at Information Society services where, having regard to its statement of reasons and its operative part, the specific aim and object of all or some of its individual provisions is to regulate such services in an explicit and targeted manner,

– a rule shall not be considered to be specifically aimed at Information Society services if it affects such services only in an implicit or incidental manner.

…

(11) “technical regulation”, technical specifications and other requirements or rules or services, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing, provision of a service, establishment of a service operator or use in a Member State or a major part thereof, as well as laws, regulations or administrative provisions of Member States, except those provided for in Article 10, prohibiting the manufacture, importation, marketing or use of a product or prohibiting the provision or use of a service, or establishment as a service provider.

…’

6 Article 8(1) of that directive provides:

‘Subject to Article 10, Member States shall immediately communicate to the Commission any draft technical regulation, except where it merely transposes the full text of an international or European standard, in which case information regarding the relevant standard shall suffice; they shall also let the Commission have a statement of the grounds which make the enactment of such a technical regulation necessary, where these have not already been made clear in the draft.

Where appropriate, and unless it has already been sent with a prior communication, Member States shall simultaneously communicate the text of the basic legislative or regulatory provisions principally and directly concerned, should knowledge of such text be necessary to assess the implications of the draft technical regulation.

…’

Directive 98/48

7 Recitals 7 and 8 of Directive 98/48 state:

‘(7) Whereas it should be possible to adapt the existing national rules and regulations applicable to services available at the present so as to take account of new Information Society services, either with a view to ensuring that the general interest is better protected or, on the other hand, with a view to simplifying such rules and regulations where their application is disproportionate to the...