Opinion of Advocate General Szpunar delivered on 3 September 2020.

• Jurisdiction: European Union
• Celex Number: 62019CC0311
• ECLI: ECLI:EU:C:2020:640
• Date: 03 September 2020
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 3 September 2020(1)

Case C‑311/19

BONVER WIN, a.s.

v

Ministerstvo financí ČR

(Request for a preliminary ruling from the Nejvyšší správní soud (Supreme Administrative Court, Czech Republic))

(Reference for a preliminary ruling — Freedom to provide services — Restrictions — National legislation prohibiting the operation of gambling in certain places — Applicability of Article 56 TFEU — Cross-border element)

I. Introduction

1. The present request for a preliminary ruling from the Nejvyšší správní soud (Supreme Administrative Court, Czech Republic) bears testimony to the fact that the specific legal question of a case addressed to the Court often lurks beneath an apparently innocuous — if not mundane — factual background in the main proceedings: a provider of betting services being required to stop trading due to a municipal decree forbidding the supply of such services within a certain part of the town in which the provider of betting services is located. That trader claims to have customers coming from another Member State. Is this fact sufficient to trigger the application of the freedom to provide services under Article 56 TFEU?

2. This case therefore goes straight to the heart of the material scope of a fundamental freedom of the internal market.

3. Delimiting such scope is a question of the utmost importance; it is one of the oldest questions of EU law, and one which continuously sprouts new shoots. Varied as the facts underlying such cases may be, (2) what they all have in common is that they go to the very nature of the internal market and the economic constitution of the Union. Economic operators and their clients rely on the outcome of such questions, just as much as Member States. The scope of the fundamental freedoms determines the extent to which Member States are bound in their (national) policy objectives by the EU law of the internal market and, correspondingly, the freedom which economic operators enjoy: if a Member State is not constrained by, say, the freedom to provide services, in a given situation its scope of potential action is tremendously larger than if it were constrained. Conversely, if a Member State is constrained, the scope of potential action of service providers and their recipients is tremendously larger.

4. The corresponding procedural side of this material coin is that cases from national courts where all the facts in the main proceedings are confined to a single Member State are inadmissible as far as concerns the interpretation of the fundamental freedoms.

5. In the present case, the Nejvyšší správní soud (Supreme Administrative Court) enquires about the scope of the freedom to provide services under Article 56 TFEU in a situation in which the cross-border element is that of customers crossing the border to benefit (if that is the correct term as regards gambling) from the services in question in the Czech Republic.

6. I shall argue in this Opinion that this question is in substance covered by the freedom to provide services under Article 56 TFEU. In doing so, I shall propose to the Court a classic reading of the freedom to provide services and of the corresponding case-law. More specifically, I shall submit to the Court that there is at present no need to curb the scope of this fundamental freedom in situations where the measures in question are indistinctly applicable in law and in fact. I shall thus propose to the Court to resist the possible temptation to interpret the scope ratione materiae of Article 56 TFEU in a narrower sense than before. In my contention, there is no room for a ‘Keck for services’: the Court should not draw any analogies from that case.(3)

II. Legal framework

7. Under Article 50(4) of the zákon č. 202/1990 Sb., o loteriích a jiných podobných hrách (Law No 202/1990 on lotteries and other similar games; ‘the Law on Lotteries’), applicable in 2013, a municipality may adopt a binding measure of general application in the form of a decree stipulating that betting games, lotteries and similar games may be operated only in places and at times provided for in the decree, or it may specify in what places in the municipality and at what times the operation of those lotteries and other similar games is prohibited, or it may entirely prohibit the operation of lotteries and other similar games throughout the municipality.

8. The Law on Lotteries also defines betting games, lotteries and other similar games.

9. Pursuant to Article 50(4) of the Law on Lotteries, the town of Děčín (Czech Republic) issued the obecně závazná vyhláška č. 3/2013, o regulaci provozování sázkových her, loterií a jiných podobných her (Municipal Decree No 3/2013 on the regulation of the operation of betting games, lotteries and other similar games). That decree banned the operation of betting games, lotteries and other similar games throughout the town as a whole in accordance with the law. At the same time, Annex I to that decree listed the precise addresses in Děčín where the operation of casinos would be permitted.

III. Facts, procedure and questions referred

10. BONVER WIN, a.s., (‘BONVER WIN’) is a Czech commercial company which operated games of chance in Děčín under a licence granted by the Ministerstvo financí ČR (Ministry of Finance, Czech Republic).

11. With the entry into force of Municipal Decree No 3/2013, BONVER WIN’s activity became in breach of that decree, as its premises were not located at one of the addresses listed in the Annex thereto.

12. By a decision of 22 October 2013, the Ministry of Finance withdrew BONVER WIN’s licence to operate games of chance on the ground that it did not comply with Municipal Decree No 3/2013.

13. BONVER WIN challenged that decision by way of an administrative appeal, which was dismissed by a decision of the Minister of Finance of 22 July 2014.

14. BONVER WIN subsequently brought an action against that decision before the Městský soud v Praze (Prague City Court, Czech Republic), which was then dismissed. In the grounds for its judgment, the court inter alia rejected the argument that the national rules were contrary to EU law, holding that EU law did not apply to this situation, as the applicant was not exercising the freedom to provide services.

15. Unsatisfied by this line of argumentation, BONVER WIN brought an appeal on a point of law against that judgment before the referring court, that is, the Nejvyšší správní soud (Supreme Administrative Court), alleging that the Městský soud v Praze (Prague City Court) had erred in failing to apply EU law. The provisions of Municipal Decree No 3/2013, read in conjunction with the provisions of the Law on Lotteries, are, in BONVER WIN’s opinion, contrary to EU law.

16. Pursuant to national procedural law, the case at issue in the main proceedings was initially attributed to the Fifth Chamber of the Nejvyšší správní soud (Supreme Administrative Court), which considered that the freedom to provide services under EU law is applicable to the case since some of BONVER WIN’s customers come from other Member States. Consequently, that chamber does not, in principle, see a need to refer the case to the Court.

17. Yet, against the background that, in comparable cases, other chambers of the Nejvyšší správní soud (Supreme Administrative Court) have come to the conclusion that EU law in general — and the freedom to provide services in particular — did not apply, (4) the Fifth Chamber decided to refer the matter, under national procedural law, to the Extended Chamber of the Nejvyšší správní soud (Supreme Administrative Court), with a view to altering the — in the view of the Fifth Chamber, erroneous — case-law of the other chambers.

18. The Extended Chamber, in turn, decided to refer the matter to the Court.

19. The Extended Chamber proceeds on the assumption that, in the present case, what is at issue is a possible restriction of the freedom of customers to obtain services and not a possible restriction of the freedom to provide services in respect of their supplier, which is a Czech company having its seat in that Member State. The referring court observes that it follows from the case-law of the Court that services which a provider established in a Member State provides, without travelling, to a recipient established in another Member State constitute a cross-border provision of services and that such recipients also include tourists or persons travelling for the purposes of study. Moreover, that court considers that national legislation, such as the Czech legislation in the present case, which is indiscriminately applicable to nationals of that Member State and those of other Member States, is, as a general rule, capable of falling within the scope of the provisions relating to the fundamental freedoms guaranteed by the FEU Treaty only in so far as it applies to situations connected with trade between Member States.

20. Furthermore, the referring court considers that, while the Court has clarified the applicability of Article 56 TFEU to situations in which a provider offers its services by telephone or Internet and to situations relating to groups of tourists who are recipients of services, it has not as yet clearly established whether that article is applicable merely because a group of nationals of another Member State may or do obtain, in a given Member State, a service which is provided mainly to nationals. In this regard, the referring court points out that it does not share the conclusion that the occasional visit, even by a single national of another Member State, to an establishment providing certain services would automatically trigger the applicability of Article 56 TFEU to any national legislation governing in general that national service sector.

21. Moreover, the referring court asks whether it would not be appropriate to establish, in the area of the freedom to provide services, a de...