27.8.2011

Official Journal of the European Union

C 252/2

(Case C-212/08) (<span class="super">1</span>)

(Scheme giving exclusive rights to manage off-course betting on horseracing - Article 49 EC - Restriction on the freedom to provide services - Overriding reasons in the public interest - Objectives of combating gambling addiction and fraudulent and criminal activities and of contributing to rural development - Proportionality - Restrictive measure to be aimed at reducing opportunities for gambling and limiting gambling activities in a consistent and systematic manner - Operator pursuing a dynamic commercial policy - Measured advertising policy - Assessment of the restriction on marketing by traditional channels and by the internet)

2011/C 252/02

Language of the case: French

Referring court

Parties to the main proceedings

Applicant: Zeturf Ltd

Defendant: Premier ministre

Re:

Reference for a preliminary ruling — Conseil d’État — Interpretation of Articles 49 EC and 50 EC — Permissibility of a scheme giving exclusive management of off-course betting on horseracing to a sole non-profit-making operator which even so pursues a dynamic commercial policy — Requirement to take into account only online betting on horseracing or the whole sector of betting on horseracing, of any type

Operative part of the judgment

Article 49 EC must be interpreted as follows:

(a)A Member State that is seeking to ensure a particularly high level of consumer protection in the gambling sector may be justified in taking the view that it is only by granting exclusive rights to a single body, subject to strict control by the public authorities, that it can tackle the risks connected with that sector and pursue the objective of preventing incitement to squander money on gambling and of combating addiction to gambling with sufficient effectiveness;

(b)It is for the national court to determine whether:

the national authorities genuinely sought, at the material time, to ensure such a particularly high level of protection and whether, having regard to the level of protection sought, the establishment of a monopoly could actually be considered necessary, and

the State controls to which the activities of the body benefiting from the exclusive rights are, in principle, subject are actually implemented in the consistent and systematic pursuit of the objectives assigned to that body;

(c)In order to be consistent with the objectives of combating criminality and reducing gambling opportunities, national legislation establishing a gambling monopoly must:

be based on a finding that criminal and fraudulent activities linked to gaming and gambling addiction are a problem in the territory of the Member State concerned, which the expansion of authorised and regulated activities would be capable of solving, and

allow only advertising that is measured and strictly limited to what is necessary in order to channel consumers towards controlled gaming networks.

In order to assess the restriction on the freedom to provide services by a system that has established exclusive rights to organise horse-race betting, it is for the national courts to take account of all the substitutable channels of marketing for that betting, unless the consequence of using the internet is to increase the risks linked to games of chance beyond those that exist in relation to games marketed through traditional channels. Where the national legislation applies in the same way to the offering of horse-race betting online and to such betting through traditional channels, the restriction on the freedom to provide services should be assessed from the point of view of the restrictions placed on the entire sector concerned.

(<span class="super">1</span>) OJ C 197, 2.8.2008.