Judges N Piçarra, D Šváby, S Rodin (Rapporteur), K Jürimäe
Advocate General M Szpunar
The claimant operated a gambling establishment in a town in the Czech Republic approximately 25km from the German border until its licence was withdrawn following the introduction of legislation, in the from of a municipal decree, forbidding the supply of gambling services within a certain part of the town, unless the supplier was listed in the Annex to that decree. The claimant brought proceedings against the Czech Ministry of Finance arguing that the legislation was incompatible with EU law, since it restricted its freedom to provide services contrary to article 56 of the FEU Treaty. The claimant’s action was dismissed on the ground that article 56 did not apply to the claimant. The claimant appealed on the ground, inter alia, that the fact that some of its customers were nationals of other member states meant that article 56 was applicable. On the claimant’s appeal, the Supreme Administrative Court was uncertain whether article 56 of the FEU Treaty was subject to a de minimis rule, in the sense that the freedom to provide services was only triggered if a certain number of service recipients benefitted from a service. The court, accordingly, stayed the proceedings and referred to the Court of Justice of the European Union for a preliminary ruling the question, in essence, whether article 56 applied to the claimant’s situation.
On the reference—
Held, a mere assertion by a service provider that some of its customers came from a member state other than that in which it was established was not sufficient to establish the existence of a cross-border situation capable of falling within the scope of article 56 of the FEU Treaty and, 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 had to demonstrate that that assertion was well founded. A de minimis rule should not be introduced in the field of the freedom to provide services, since circumstances such as the number of foreign customers who had 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, had no bearing on the applicability of article 56. However, the national legislation in issue, which restricted the right to operate games of chance or gambling to certain places, was capable of constituting a barrier to the freedom to provide services which was caught by article 56. Since, in the present case, the existence of foreign customers was not purely hypothetical, article 56 applied, subject to the compatibility of the national legislation in issue with that article. Accordingly, article 56 of the FEU Treaty applied to the situation of a company providing gambling services which was forced to stop trading due to national legislation forbidding the supply of such services within a certain part of the town in which the provider was located, where some of its customers came from another member state (judgment, paras 25–27, 30–35, operative part).
M Smolek, O Serdula, J Vláčil and T Machovičová, agents, for the Czech Government.
MZ Fehér, G Koós and Zs Wagner, agents, for the Hungarian Government.
JM Hoogveld and MK Bulterman, agents, for the Netherlands Government.
L Armati, P Němečková and K Walkerová, agents, for the European Commission.