3 December 2020 (*1)

(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 – Existence of a cross-border element)

In Case C‑311/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the Nejvyšší správní soud (Supreme Administrative Court, Czech Republic), made by decision of 21 March 2019, received at the Court on 16 April 2019, in the proceedings

Ministerstvo financí ČR,

THE COURT (Fourth Chamber),

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

Advocate General: M. Szpunar,

Registrar: M. Longar, Administrator,

having regard to the written procedure and further to the hearing on 12 March 2020,

after considering the observations submitted on behalf of:

–the Czech Government, by M. Smolek, O. Serdula, J. Vláčil and T. Machovičová, acting as Agents,

–the Hungarian Government, by M.Z. Fehér, G. Koós and Zs. Wagner, acting as Agents,

–the Netherlands Government, by J.M. Hoogveld and M.K. Bulterman, acting as Agents,

–the European Commission, by L. Armati, P. Němečková and K. Walkerová, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 3 September 2020,

gives the following

This request for a preliminary ruling concerns the interpretation of Article 56 TFEU.

The request has been made in proceedings between BONVER WIN a.s. and the Ministerstvo financí ČR (Ministry of Finance, Czech Republic) concerning the lawfulness of a decision withdrawing that company’s licence to operate betting games in the town of Děčín (Czech Republic).

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

4. The criteria of Annex III shall be taken into account, where relevant, when compiling the information in accordance with points 1 to 3.’

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

13Moreover, the referring court is uncertain whether, first, it would be appropriate to establish, in the field of the freedom to provide services, a de minimis rule – much like the rule which exists in the field of the free movement of goods – based on there being a sufficient link between the legislation at issue and the freedom to provide services. If such a rule were identified, legislation that is applicable without distinction to all providers pursuing their activity in the Member State concerned and which has a marginal impact on trade between Member States would not fall within the scope of Article 56 TFEU. Second, the referring court asks whether it is necessary to transpose, in the context of the freedom to provide services, the guidance provided in the judgment of 24 November 1993, Keck and Mithouard (C‑267/91 and C‑268/91), and to exclude from the scope of Article 56 TFEU measures which are applicable without distinction and which affect in the same manner, in law and in fact, all service providers pursuing their activity within the national territory.

In those circumstances, the Nejvyšší správní soud (Supreme Administrative Court, Czech Republic) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

(1)Does Article 56 [TFEU et seq.] apply to national legislation (a binding measure of general application in the form of a municipal decree) prohibiting a certain service in part of one municipality, simply because some of the customers of a service provider affected by that legislation may come or do come from another Member State of the European Union?

If so, is a mere assertion of the possible presence of customers from another Member State sufficient to trigger the applicability of Article 56 TFEU, or is the service provider obliged to prove the actual provision of services to customers who come from other Member States?

Is it of any relevance to the answer to the first question that:

(a)the potential restriction on the freedom to provide services is significantly limited in both geographical and substantive terms (potential applicability of a de minimis exception);

(b)it does not appear that the national legislation regulates in a different manner, in law or in fact, the position of entities providing services primarily to citizens of other Member States of the European Union, on the one hand, and that of entities focusing on a domestic clientele, on the other?

Consideration of the questions referred

By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether and, if so, under what conditions Article 56 TFEU must be interpreted as meaning that it applies to the situation of a company established in a Member State which has lost its licence to operate games of chance following the entry into force, in that Member State, of legislation determining the places in which it is permitted to organise such games, which is applicable without distinction to all service providers operating in that Member State, regardless of whether those services are provided to nationals of that Member State or to those of other Member States, where that company claims that some of its customers come from a Member State other than the Member State in which it is established.

16When answering those questions, it should be noted that national legislation such as that at issue in the main proceedings – which applies without distinction to the nationals of the various Member States – is, generally, capable of falling within the scope of the provisions relating to the fundamental freedoms established by the FEU Treaty only to the extent that it applies to situations connected with trade between the Member States (judgment of 11 June 2015, Berlington Hungary and Others, C‑98/14, EU:C:2015:386, paragraph 24, and order of 4 June 2019, Pólus Vegas, C‑665/18, not published, EU:C:2019:477, paragraph 17).

17The provisions of the FEU Treaty on the freedom to provide services do not apply to a situation which is confined in all respects within a single Member State (see, to that effect, judgment of 15 November 2016, Ullens de Schooten, C‑268/15, EU:C:2016:874, paragraph 47 and the case-law cited).

That said, it should be borne in mind that Article 56 TFEU requires the abolition of all restrictions on the freedom to provide services, even if those restrictions apply without distinction to national providers of services and to those from other Member States, when they are liable to prohibit, impede or render less advantageous the activities of a service provider established in another Member State where it lawfully provides similar services. Moreover, the freedom to provide services is for the benefit of both providers and recipients of services (judgment of 8 September 2009, Liga Portuguesa de Futebol Profissional and Bwin International, C‑42/07, EU:C:2009:519, paragraph 51 and the case-law cited). That includes the freedom for the recipients of services to go to another Member State in order to receive a service there, without being obstructed by restrictions, with tourists having to be regarded as recipients of services (see, to that effect, judgments of 31 January 1984, Luisi and Carbone, 286/82 and 26/83, EU:C:1984:35, paragraph 16; of 2 February 1989, Cowan, 186/87, EU:C:1989:47, paragraph 15; and of 2 April 2020, Ruska Federacija, C‑897/19 PPU, EU:C:2020:262, paragraph 52).

In that regard, first, the Court has previously held that services which a provider carries out without moving from the Member State in which he is established for recipients established in other Member States constitute the provision of cross-border services for the purposes of Article 56 TFEU (judgment of 11 June 2015, Berlington Hungary and Others, C‑98/14, EU:C:2015:386, paragraph 26 and the case-law cited).

Second, it is irrelevant that the restriction on a provider of services is imposed by the Member State of origin. It is apparent from the case-law of the Court that the freedom to provide services covers not only restrictions laid down by the State of destination but also those laid down by the State of origin (see, to that effect, judgment of 10 May 1995, Alpine Investments, C‑384/93, EU:C:1995:126, paragraph 30).

As the Advocate General emphasised in point 50 of his Opinion, the Treaty treats restrictions imposed on providers of services and restrictions imposed on recipients of services in the same manner. Therefore, once the situation falls within the scope of Article 56 TFEU, both the recipient and the provider of a service may rely on that article.

Thus, the Court has previously held that the right freely to provide services may be relied on by an undertaking as against the State in which it is established if the services are provided for persons established in another Member State (see, to that effect, judgment of 10 May 1995, Alpine Investments, C‑384/93, EU:C:1995:126, paragraph 30 and the case-law cited).

However, it should be borne in mind that, on a question being referred by a national court in connection with a situation confined in all respects within a single Member State, the Court of Justice cannot, where the referring court does not indicate something other than that the legislation in question applies without distinction to nationals of the Member State concerned and those of other Member States, consider that the request for a preliminary ruling on the interpretation of the provisions of the FEU Treaty on the fundamental freedoms is necessary to enable that court to give judgment in the case pending before it. The specific factors that allow a link to be established between the subject or circumstances of a dispute, confined in all respects within a single Member State, and Article 56 TFEU must be apparent from the order for reference (judgment of 15 November 2016, Ullens de Schooten, C‑268/15, EU:C:2016:874, paragraph 54, and order of 4 June 2019, Pólus Vegas, C‑665/18, not published, EU:C:2019:477, paragraph 21).

It is also apparent from the Court’s case-law that a cross-border situation cannot be presumed to exist on the sole ground that EU citizens from other Member States may avail themselves of such service opportunities (see, to that effect, order of 4 June 2019, Pólus Vegas, C‑665/18, not published, EU:C:2019:477, paragraph 24).

In the present case, it follows that a mere assertion by a service provider that some of its customers come from a Member State other than that in which it is established is not sufficient to establish the existence of a cross-border situation capable of falling within the scope of Article 56 TFEU. In order to make a reference to the Court of Justice for a preliminary ruling concerning the situation of that service provider, a national court must demonstrate in the order for reference that that assertion is well founded.

As regards the possible relevance of the number of customers from another Member State, it is necessary to reject, as the Advocate General has suggested in point 82 of his Opinion, the idea that a de minimis rule should be introduced in the field of the freedom to provide services.

Thus, it should be noted that circumstances such as the number of foreign customers who have used a service, the volume of services provided or the limited scope, in both geographical and substantive terms, of the potential restriction on the freedom to provide services have no bearing on the applicability of Article 56 TFEU.

In particular, it is apparent from settled case-law that the freedom covered by that article may be relied upon both in situations where there is a single recipient of services (see, to that effect, judgment of 2 February 1989, Cowan, C‑186/87, EU:C:1989:47, paragraphs 15 and 20) and in those where there is an uncertain number of recipients of services using an uncertain number of services performed by a provider established in another Member State (see, to that effect, judgments of 10 May 1995, Alpine Investments, C‑384/93, EU:C:1995:126, paragraph 22, and of 6 November 2003, Gambelli and Others, C‑243/01, EU:C:2003:597, paragraphs 54).

and 55).

29As the Advocate General observed, in essence, in point 80 of his Opinion, to make the applicability of Article 56 TFEU dependent on a quantitative criterion would jeopardise the uniform application of that article within the European Union, which means that such a criterion cannot be accepted.

30In addition, the referring court’s point of view that a measure of general application prohibiting, subject to certain exceptions which it specifies, the operation of games of chance in a municipality of a Member State, which affects in the same manner, in law or in fact, all providers established in that Member State, regardless of whether those services are provided to nationals of that Member State or to those of other Member States, falls outside the material scope of Article 56 TFEU cannot be accepted.

31The Court has previously held that national legislation which restricts the right to operate games of chance or gambling to certain places is capable of constituting a barrier to the freedom to provide services which is caught by Article 56 TFEU (see, to that effect, judgment of 11 September 2003, Anomar and Others, C‑6/01, EU:C:2003:446, paragraphs 65 and 66).

32In the present case, it is apparent from the request for a preliminary ruling that the town of Děčín, which is located approximately 25 km from the German border, is a place that is enjoyed by German nationals and that BONVER WIN has, in the context of the national proceedings, provided evidence which seeks to demonstrate that some of its customers were persons from other Member States, which means that it cannot be argued that the existence of foreign customers is purely hypothetical.

33Therefore, subject to verification by the referring court of the evidence provided by BONVER WIN, it is apparent from all the foregoing considerations that Article 56 TFEU applies in a situation such as the one at issue in the main proceedings.

34However, that finding is without prejudice to the potential compatibility of the national legislation at issue in the main proceedings with that article. The Court has not been asked whether that article precludes such legislation and does not have any relevant information enabling it to provide guidance to the referring court in that regard.

35In the light of those findings, the answer to the questions asked by the referring court is that Article 56 TFEU must be interpreted as meaning that it applies to the situation of a company established in a Member State which has lost its licence to operate games of chance following the entry into force, in that Member State, of legislation determining the places in which it is permitted to organise such games, which is applicable without distinction to all service providers operating in that Member State, regardless of whether those services are provided to nationals of that Member State or to those of other Member States, where some of its customers come from a Member State other than the Member State in which it is established.

Costs

36Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fourth Chamber) hereby rules:

Article 56 TFEU must be interpreted as meaning that it applies to the situation of a company established in a Member State which has lost its licence to operate games of chance following the entry into force, in that Member State, of legislation determining the places in which it is permitted to organise such games, which is applicable without distinction to all service providers operating in that Member State, regardless of whether those services are provided to nationals of that Member State or to those of other Member States, where some of its customers come from a Member State other than the Member State in which it is established.

[Signatures]

* * *

(*1) Language of the case: Czech.