Opinion of Mr Advocate General Mengozzi delivered on 4 March 2010.

I — Introduction

1. In a non-harmonised sector such as gambling, in which each of the Member States applies different rules the only common element of which is the existence of measures intended to supervise the development of the activity, the major challenge facing the Courts of the Union is to find common ground allowing for some observance of the freedoms enshrined in the Treaty.

2. The impact of new technologies makes this point of law much more complex. As a result of new means of communication, gambling enthusiasts no longer have to go to a casino or a gambling house; they can play in their own homes over the internet or even on their mobile phones. What is more, this type of online gambling takes no account of borders; players are no longer limited to the supply of games of chance available in their own Member State as they have access to foreign operators, some established in the European Union and others outside it. The problem of cross-border gambling is a highly topical one and operators offering their services via the internet are in some doubt as to whether or not the Member State of destination is entitled to prohibit their activities.

3. However, the problems are not confined to the field of online gambling. The existence of a State monopoly on certain games of chance and restrictions on the acquisition of licences may also adversely affect the freedom of establishment and the freedom to provide services. The question for the Court, therefore, is once again whether such restrictive regimes are justified.

4. The Schleswig-Holsteinisches Verwaltungsgericht (Administrative Court, Schleswig-Holstein) has referred some of these questions to the Court as a direct consequence of the new rules adopted by the Länder in respect of lotteries and sports betting following the judgment of the Bundesverfassungsgericht (German Federal Constitutional Court) of 28 March 2006⁽²⁾.

5. The case at issue here bears a clear connection with Markus Stoß and Others,⁽³⁾ although the latter relates to national legislation predating the abovementioned judgment. The similarity of the questions raised in these two cases and the concern for procedural economy by which we must always be guided therefore prompt me to refer, in relation to many aspects of this case, to the more detailed account contained in my Opinion in Markus Stoß and Others.

II — Legal framework

III — The dispute in the main proceedings and the questions referred for a preliminary ruling

21. Carmen Media Group Ltd (‘Carmen Media’) was granted by the Government of Gibraltar, where it is established, an extraterritorial gambling licence restricted to ‘remote gambling / fixed-odds bets for offshore bookmaking’, which, therefore, authorised it to organise bets only outside the territory of Gibraltar.

22. Carmen Media wished to offer sports bets in the Federal Republic of Germany over the internet and therefore applied to the Land of Schleswig-Holstein on 10 February 2006 for a declaration as to the lawfulness of that activity under the licence which it holds in Gibraltar or, in the alternative, for the grant of a licence under national law.

23. Its application having been turned down, on 30 June 2006, Carmen Media brought an action before the Schleswig-Holsteinisches Verwaltungsgericht claiming that the State monopoly on sports betting is contrary to European Union law in that it is incompatible with the freedom to provide services laid down in Article 49 EC.

24. In the order for reference, that court expresses the considerable doubts it has as to the compatibility of the German rules on gambling with European Union law and refers the following questions to the Court for a preliminary ruling under Article 234 EC:

1. Is Article 49 EC to be interpreted as meaning that reliance on the freedom to provide services requires that a service provider be permitted, in accordance with the provisions of the Member State in which it is established, to provide that service there as well – in the present case, restriction of the Gibraltar gambling licence to “offshore bookmaking”?

2. Is Article 49 EC to be interpreted as precluding a national monopoly on the operation of sports betting and lotteries (with more than a low potential risk of addiction), justified primarily on the grounds of combating the risk of gambling addiction, whereas other games of chance, with considerable potential risk of addiction, may be provided in that Member State by private service providers, and the different legal rules for sports betting and lotteries, on the one hand, and other games of chance, on the other, are based on the differing legislative powers of the Bund and the Länder?

Should the second question be answered in the affirmative:

1. Is Article 49 EC to be interpreted as precluding national rules which make entitlement to the grant of a licence to operate and arrange games of chance subject to the discretion of the competent licensing authority, even where the conditions for the grant of a licence as laid down in the legislation have been fulfilled?

2. Is Article 49 EC to be interpreted as precluding national rules prohibiting the operation and brokering of public games of chance on the Internet, in particular where, at the same time, although only for a transitional period of one year, their online operation and brokering is permitted, subject to legislation protecting minors and players, for the purposes of the principle of proportionality and to enable two commercial gambling brokers who have previously operated exclusively online to switch over to those distribution channels permitted by the [GlüStV]?’

IV — The procedure before the Court of Justice

25. The reference for a preliminary ruling was lodged at the Court Registry on 8 February 2008.

26. The claimant (Carmen Media) and the defendant (the Land Schleswig-Holstein) in the main proceedings, the European Commission and the Governments of Belgium, Germany, Greece, the Netherlands and Norway submitted written observations.

27. At the hearing, which was held on 8 December 2009, oral argument was presented by the representatives of Carmen Media, the Land Schleswig-Holstein and the Innenminister des Landes Schleswig-Holstein (Minister for the Interior of the Land Schleswig-Holstein), the Belgian, German, Greek, Italian, Portuguese and Norwegian Governments and the Commission.

V — Analysis of the first question

28. By its first question, the referring court asks the Court whether Article 49 EC makes the possibility of relying on the freedom to provide services subject to the requirement that the service provider must also be able to carry on its activity in the Member State in which it is established, in accordance with the law of that State.

29. The uncertainty comes from the fact that Carmen Media obtained from the authorities in Gibraltar, where it is established, a gambling licence limited to ‘offshore bookmaking’, that is to say an extraterritorial licence, which does not permit it to organise betting in the territory of Gibraltar but only – or at least theoretically so – abroad.

30. When questioned on that point at the hearing, Carmen Media’s representative denied that, at the material time, the company was subject to a ban on organising games of chance in Gibraltar. However, it is clear from its written intervention that such a restriction did indeed exist, if not strictly in the form of a ban, certainly in the form of a limitation on its freedom of action.⁽⁸⁾

31. In the same statement, Carmen Media points out that that limitation⁽⁹⁾ was due exclusively to tax reasons, more specifically the fact that it had opted for a particularly advantageous tax regime (known as ‘exempt company status’), subject to the condition that it did ‘not... carry on or transact any trade or business in Gibraltar’.⁽¹⁰⁾ It also states that that restriction was not aimed at protecting Gibraltar citizens against offers from gaming operators and that it could have been abolished without the need for it to undergo a new licensing procedure, even though Carmen Media would have had to relinquish its particular tax status in order to obtain such a licence.

32. The Schleswig-Holsteinisches Verwaltungsgericht is attempting to determine whether, under Article 49 EC, a licence of that type authorised Carmen Media to carry on its activity in German territory without the need to obtain a new licence from the authorities of the Land in question, or whether the fact that it was not allowed to organise gaming in its own place of origin precluded application of the principle of mutual recognition.

33. Mutual recognition is an instrument aimed at guaranteeing operators market access in all the Member States, even in sectors where there are substantial differences in the rules applicable.⁽¹¹⁾According to case-law, in order to attain that objective, it is necessary to find a balance between the requirements of the various Member States concerned, so that the Member State in which the service is provided cannot duplicate the controls and conditions already imposed in the Member State of origin of the service provider.

34. This follows from Case⁽¹²⁾Webb, in which the Court held that ‘the freedom to provide services is one of the fundamental principles of the Treaty and may be restricted only by provisions which are justified by overriding reasons in the general interest... in so far as that interest is not safeguarded by the provisions to which the provider of the service is subject in the Member State of his establishment’.⁽¹³⁾

35. In the context of mutual recognition, that statement presupposes that the Member State of destination may, in the light of a given general interest,⁽¹⁴⁾ make the provision of services subject to the acquisition of a licence, but it must consider a licence issued by the authorities of another Member State to be appropriate where that licence ensures that the conditions objectively necessary to pursue the same general-interest objective are satisfied. In short, if the requirement of prior authorisation is lawful within the context of the Union (in so far as it may be justified, in accordance with case-law, on grounds of general interest), it is also lawful in relation to an undertaking established in another Member State, in so far as that undertaking has not already complied with the aforementioned conditions aimed at attaining the same objective in the Member State of establishment.

36. It is difficult for an extraterritorial licence such as that at issue in the main proceedings to fulfil such conditions. In so far as the authorities of the Member State of origin do not themselves permit that activity to be carried on in the territory of that State, the idea that, by their intervention, the general interest which is of concern to another Member State is sufficiently protected is inherently flawed. Mutual recognition is possible only if the Member State of origin has performed checks similar to those required in the Member State of destination.

37. It follows that the freedom to provide services may be relied on only where the activity in question may also lawfully be provided in the Member State of establishment.

38. That idea has been expressly adopted by the Court’s case-law on the freedom to provide services to the effect that restrictions under Article 49 EC are not only those which involve discrimination on grounds of nationality but also those which, even though they are not discriminatory, are liable to ‘prohibit, impede or render less advantageous the activities of a provider of services established in another Member State where he lawfully provides similar services’.⁽¹⁵⁾

39. To counter that argument, the Commission relies on Inspire Art Ltd,⁽¹⁶⁾ where the Court held that the fact that a company does not conduct any business in the Member State in which it has its registered office and pursues its activities only or principally in the Member State where its branch is established is not sufficient to... deny that company the benefit of the provisions of Community law relating to the right of establishment.⁽¹⁷⁾

40. To my mind, reliance on that judgment is irrelevant as the criteria are different in the case of the freedom to provide services. Moreover, the Court draws a clear distinction in this regard between the two freedoms and takes a stricter approach in the context of the freedom of establishment. Thus, in Säger, cited above, it found that ‘a Member State may not make the provision of services in its territory subject to compliance with all the conditions required for establishment’ (paragraph 13), while a restriction on the freedom to provide services in the form of a national administrative licence may be justified by reasons relating to the public interest (paragraphs 14 and 15).

41. Consequently, an undertaking may establish itself in Member State A, which has less rigorous company-law provisions, and conduct the entirety of its business in another Member State B by virtue of the freedom of establishment enshrined in the Treaty (Article 43 EC). From the point of view of the freedom to provide services, however, the situation is different, and it cannot under any circumstances be inferred from Inspire Art that the undertaking in question may operate without a licence on the market in B on the sole ground that it is established in A, notwithstanding that the authorities in the latter State do not permit it to provide the same service in the territory of that State.

42. Nor, to my mind, can that conclusion be refuted by reference to VT4 Ltd,⁽¹⁸⁾ in paragraph 22 of which the Court held that ‘[t]he Treaty does not prohibit an undertaking from exercising the freedom to provide services if it does not offer services in the Member State in which it is established’.⁽¹⁹⁾ In this case, the important point is not the fact that Carmen Media did not offer the service of organising betting in the territory of its Member State of establishment (which, in itself, would not prevent reliance on the freedom to provide services, in accordance with the above case-law), but the fact that it could not do so because its licence was exclusively extraterritorial or offshore.

43. The fact that that restriction was due to the voluntary choice made by Carmen Media in order to benefit from a more advantageous tax regime does not in any way alter the fact that, when it asked to be recognised as a legal gambling operator in Germany, it only held a licence which did not permit it to provide that same service in its place of origin. Moreover, even though the undertaking could have obtained a licence to operate in Gibraltar simply by relinquishing the tax benefits which it enjoyed, the fact remains that it chose to retain those benefits and, consequently, to submit to the restrictions attached to them.

44. Whatever reasons – fiscal or otherwise – a Member State may have for acting in this way, why would that Member State, which issues extraterritorial licences, assume the obligation to exercise adequate control over the provision of the service in question? Why should the Member States automatically accept a licence which is not valid for those who issued it?

45. In those circumstances, the view may legitimately be taken that the Gibraltar authorities may not have guaranteed controls and conditions which might make intervention by the German authorities pointless. The principle of mutual recognition involves placing trust in the control which the Member State of establishment exercises over an undertaking established in its territory; however, if a Member State has granted only an offshore licence, it is reasonable to ask whether its controls should be trusted. The control exercised by the German authorities is not therefore redundant, and mutual recognition to prevent control being duplicated is not appropriate.

46. Another solution might, at least in theory, encourage undesirable abuse of the internal market, as the Belgian Government rightly points out in its statement in intervention. It is true that the Court takes a strict approach to this type of abuse,⁽²⁰⁾ but extraterritorial licences of this kind can hardly be regarded as constituting conduct which fosters mutual trust between Member States.

47. For those reasons, I take the view that the possibility of relying on the freedom to provide services is subject to the essential requirement that the licence granted by the Member State of establishment authorises the service provider to provide the service in question in that Member State where it is established.

48. However, the problem does not arise in those terms in the gaming sector, since, as I explain at length in my Opinion in Markus Stoß and Others,⁽²¹⁾ as European Union law currently stands, mutual recognition is not applicable in the field of gambling licences. Three factors lead me to this conclusion.

49. First, the uniform functioning of a system for the mutual recognition of gambling licences proves to be irreconcilable with the case-law of the Court, which clearly and resolutely accepts monopolies and other restrictions on the number of operators in the gaming sector, provided that certain conditions are met.⁽²²⁾ If a Member State in which a gambling monopoly compliant with the requirements of Treaty has been established were under an obligation to take into consideration licences issued by the other Member States, the above case-law would be inapplicable and would be rendered meaningless.

50. Secondly, mutual recognition seems to be impossible in the absence of harmonisation of the gambling sector, of which there is no immediate prospect. Without harmonisation, application of the freedom of movement would continue to be limited, and the task of the Courts of the Union is specifically to define the restrictions which are compatible with the provisions of the Treaty in that non-harmonised sphere.

51. Thirdly, the non-existence of a sufficiently well-organised system of administrative cooperation makes it difficult to establish a system of mutual recognition in the sector.

52. Consequently, the first question raised by the Schleswig-Holsteinisches Verwaltungsgericht is based on an erroneous premiss and the answer to it should refute the principal premiss, given that the German authorities are not, in the circumstances of the case at issue, required to recognise a gambling licence issued by the authorities of another Member State, whatever the conditions which are attached to it.

VI — Analysis of the second question

VII — Analysis of the third question

60. By its third question, the national court asks the Court whether Article 49 EC precludes a national rule which leaves to the discretion of the licensing authority the decision whether to grant a licence to organise and broker games of chance, even where the conditions for the grant of the licence laid down by law have been fulfilled.

61. The referring court considers that this question is relevant only if the German monopoly system is held to be contrary to the Treaty. In my view, however, the question is relevant even if the national court, in accordance with the criteria set out in the judgment of the Court of Justice, declares that the coexistence of a monopoly on certain games and the operation of other games by private operators is not contrary to the Treaty. In that event, the licensing procedure would be applicable to the latter.

62. The scheme of prior administrative authorisation also constitutes a restriction on the freedom of movement which may be justified in so far as it is non-discriminatory, seeks to ensure the attainment of an objective in the general interest, and is suitable for its attainment and proportionate to it.⁽²⁹⁾

63. None the less, in accordance with settled case-law, it is necessary to add to those criteria others intended to ensure that that authorisation, in so far as it is capable of requiring that the freedom in question be subject to the discretion of the administrative authorities, does not render that freedom illusory.⁽³⁰⁾

64. Thus, the Court has held that, in order for a prior administrative authorisation scheme to be justified even though it derogates from a fundamental freedom, it must:(1) be based on objective, non-discriminatory criteria which are known in advance, in such a way as to circumscribe the exercise of the national authorities’ discretion, so that it is not used arbitrarily; and (2) be based on a procedural system which is easily accessible and capable of ensuring vis-à-vis the interested parties that their request for authorisation will be dealt with objectively and impartially within a reasonable time, allowing refusals to grant authorisation to be challenged in judicial or quasi-judicial proceedings.⁽³¹⁾

65. The powers of the administrative authorities must therefore be subject to certain limits which ensure that they are not exercised improperly, but the Courts of the Union do not require the licensing option to be fully regulated. Otherwise, the restriction on the number of operators, permitted on occasion by case-law,⁽³²⁾ would be redundant and the attainment of objectives in the general interest justifying that restriction on the freedom to provide services might even be impeded.⁽³³⁾

66. Consequently, provided that the procedure established is objective, transparent and non-discriminatory, and the decision adopted is capable of being challenged, the administrative authority may retain a certain margin of discretion in order to find the solution best suited to each situation. That is why Paragraph 4(2) of the GlüStV stipulates that there is no legal entitlement to the grant of a licence.

VIII — Analysis of the fourth question

67. By its fourth and final question, the referring court asks whether an absolute ban on the organisation and brokering of games of chance on the internet is in conformity with Article 49 EC where, at the same time, the national rules permit certain operators to continue to offer those games on the internet for a transitional period of one year.

68. By that question, the Schleswig-Holsteinisches Verwaltungsgericht wishes to ascertain whether Paragraph 4(4) of the GlüStV, which prohibits the organisation or brokering of any public gaming on the internet, is compatible with the Treaty.⁽³⁴⁾

69. The Court has ruled that other general bans, such as those relating to a particular form of gambling, are compatible with the Treaty.⁽³⁵⁾ It follows that there is nothing to preclude the potential lawfulness of a ban on a particular gambling medium, such as the internet. The measure is not discriminatory since it applies to both German and foreign operators⁽³⁶⁾ and it might be capable of protecting players and reducing gambling addiction, in view of the specific characteristics of internet gambling (particular risk of dependency given that the gambling takes place in private, the supply of games available is virtually unlimited – a number of gambling windows can be opened at the same time – and it is available 24 hours a day, 365 days a year).

70. Consequently, a ban of that type, like other bans having a less pronounced effect on the freedom to provide services, might be justified on grounds of general interest and compatible with the Treaty, provided that it is non-discriminatory and satisfies the criteria of consistency and proportionality. It is true that certain aspects of it might call into question its proportionality since, alongside other less restrictive measures (such as the monopoly itself), a total ban could have the effect of driving the demand for gambling towards unlawful internet pages. Similarly, the decision might prove to be at odds with the prospect of simultaneously maintaining a monopoly on the same games (even if they are not provided on the internet) on the basis of the need to channel the desire to gamble. However, it is for the national court to assess all those questions.

71. None the less, the referring court does not call into question the ban on internet gambling in abstract and general terms, but rather in relation to the transitional provision which permits the Länder to maintain the organisation and brokering of lotteries on the internet for a period of one year following the entry into force of the GlüStV, provided that there are no objective grounds for refusal and that other, supplementary requirements are fulfilled.

72. According to the explanatory memorandum to the GlüStV, the purpose of that transitional measure was to permit operators of games of chance which exercised their activities almost exclusively via the internet to adapt to the new legal framework by switching to the new marketing channels authorised by that framework.⁽³⁷⁾ It is therefore a decision aimed at protecting the legal certainty of the operators which, up until the date of the ban, were acting within the framework of a non-restrictive regime.

73. The Court has on various occasions drawn attention to the importance of the principle of legal certainty, which forms part of the legal order [of the European Union] and must be observed by the institutions [of the European Union], but also by the Member States when they exercise the powers conferred on them by [European Union] law.⁽³⁸⁾

74. In the light of the requirements flowing from that principle, EU directives normally allow a reasonable period of time, starting from their entry into force, for their transposition and implementation, and the Court has taken the view in its case-law that the temporary deferral by the Member States of the adaptation of their different – factual and legal – situations to European Union law may be justified.

75. In ASM Brescia,⁽³⁹⁾ for example, the Court, in accordance with the principle of legal certainty, allowed the validity of a gas distribution concession to be extended, contrary to Articles 49 EC and 86 EC. There are also many judgments in which the Court of Justice, in reliance on the principle of legal certainty, exercises the power conferred on it by the second paragraph of Article 231 EC, indicating which of the effects of an annulled regulation must be considered as definitive.⁽⁴⁰⁾

76. In so far as the principle of legal certainty is considered to be one of the overriding reasons in the general interest which may be relied upon by the Member States in order provisionally to maintain a rule or a situation contrary to the freedoms of the Treaty, the case in favour of the lawfulness of a decision which defers the restriction of one of those freedoms, by granting the persons concerned a period of time within which to adapt to the new requirements of the national legislation, is all the stronger.

77. Similarly, I take the view that the decision to defer the entry into force of the ban on internet gambling would not adversely affect the consistency of that restrictive measure, nor jeopardise the attainment of the general-interest objectives which it pursues.

78. First, even though the ban on games of chance on the internet is justifiable on grounds of the high risk of dependency associated with such games, the need to eliminate them does not appear to be so urgent that it must take precedence over the requirements flowing from the principle of legal certainty.

79. Next, it should be borne in mind that the transitional period laid down in Paragraph 25(6) of the GlüStV is subject to significant conditions and requirements. First, it applies only to lotteries and not to sports betting, the organisation and brokering of which on the internet are prohibited as from the entry into force of the GlüStV because of the particular risks associated with them. Secondly, the transitional licensing of lotteries on the internet is subject to a number of requirements and restrictions intended to prevent the risks which that type of gambling may pose: thus, that provision stipulates that a guarantee must be given that minors and prohibited players will be excluded, limits the level of stakes to EUR 1 000 per month, and prohibits credit and interactive participation with real-time publication of results, for example.

80. Finally, as the order for reference states, the transitional provision introduced by the GlüStV constitutes compensation out of fairness which has due regard to the provisions on the protection of young people and players. That is why I take the view that the fact that such a provision has been laid down is not inconsistent with the ban on internet gambling, given that that provision is intended to facilitate transition towards the new legal framework with maximum possible regard for the general-interest objectives pursued and the principle of legal certainty.

IX — Conclusions

81. In accordance with the foregoing considerations, I propose that the Court’s answers to the questions referred by the Schleswig Holsteinisches Verwaltungsgericht should be that:

1. Article 49 EC is to be interpreted as meaning that reliance on the freedom to provide services presupposes that the licence granted by the Member State of establishment authorises the service provider to provide the service in question in the Member State in which it is established. However, the mutual recognition of gambling licences is not feasible as European Union law stands at present.

2. Article 49 EC is compatible with a state monopoly on the organisation of sports betting and lotteries, justified primarily on the grounds of combating the risk of gambling addiction, even where, in that same Member State, other games of chance, with considerable potential risk of addiction, may be provided by private service providers, provided that the public authorities ensure that some control is exercised over the private operators and that the supply of games covered by the monopoly is smaller than it might be in the case of a private supplier. If those conditions are fulfilled, the circumstances described do not stand in the way of a consistent and systematic gambling policy within the meaning of the case-law. It is for the national court to determine whether those conditions are fulfilled.

   The distribution of legislative competences in the field of gambling between the Federal State and the Länder does not in itself jeopardise the consistency of the national policy under analysis (which must be examined as a whole at national level), but it cannot, on the other hand, serve as an excuse for any inconsistencies.

3. Article 49 EC is to be interpreted as not precluding national legislation leaving the grant of a licence to organise and broker games of chance to the unfettered discretion of the competent licensing authority, provided that the procedure established is objective, transparent and non-discriminatory, and that the decision adopted is capable of being challenged.

4. Article 49 EC does not preclude national legislation prohibiting the organisation and brokering of public games of chance on the internet, provided that the measure is consistent with the general-interest objective relied on by way of justification, and proportionate to that objective, notwithstanding that, at the same time, their organisation and brokering on the internet is permitted, in accordance with the provisions on the protection of minors and players, out of fairness, specifically to persons who have hitherto operated exclusively via the internet.’