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CJEU Case C-98/14 /Judgment

Berlington Hungary Tanácsadó és Szolgáltató kft and Others v Magyar Állam
Policy area
Taxation
Deciding body type
Court of Justice of the European Union
Deciding body
Court (First Chamber)
Type
Decision
Decision date
11/06/2015
ECLI (European case law identifier)
ECLI:EU:C:2015:386

Carta de los Derechos Fundamentales de la Unión Europea

Title II: Freedoms

Article 17 - Right to property

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  • CJEU Case C-98/14 /Judgment

    Key facts of the case:

    Reference for a preliminary ruling — Freedom to provide services — Games of chance — National taxes on the operation of slot machines in amusement arcades — National legislation prohibiting the operation of slot machines outside casinos — Principles of legal certainty and of the protection of legitimate expectations — Directive 98/34/EC — Obligation to notify draft technical regulations to the Commission — Member State liability for damage caused by legislation contrary to EU law.

    Outcome of the case:

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

    1. National legislation such as that at issue in the main proceedings, which, without providing for a transitional period, introduces a five-fold increase in the flat-rate tax to be paid on slot machines operated in amusement arcades and, in addition, introduces a proportional tax on that activity, constitutes a restriction on the freedom to provide services guaranteed by Article 56 TFEU provided that it is liable to prohibit, impede or render less attractive the exercise of the freedom to provide the services of operating slot machines in amusement arcades, this being a matter which it is for the national court to determine.
    2. National legislation such as that at issue in the main proceedings, which, without providing for either a transitional period or compensation for operators of amusement arcades, prohibits the operation of slot machines outside casinos constitutes a restriction on the freedom to provide services guaranteed by Article 56 TFEU.
    3. Restrictions on the freedom to provide services which may result from national legislation such as that at issue in the main proceedings can only be justified by overriding reasons in the public interest if the national court finds, after an overall assessment of the circumstances surrounding the adoption and implementation of that legislation: that it actually pursues, primarily, objectives relating to the protection of consumers against gambling addiction and the prevention of criminal and fraudulent activities linked to gambling; the mere fact that a restriction on gambling activities incidentally benefits, through an increase in tax revenue, the budget of the Member State concerned, does not prevent that restriction from being considered actually to be pursuing, primarily, those objectives; that it pursues those goals consistently and systematically, and that it meets the requirements arising from general principles of EU law, in particular the principles of legal certainty and the protection of legitimate expectations and the right to property.
    4. Article 1(11) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, as amended by Council Directive 2006/96/EC of 20 November 2006, must be interpreted as meaning that: the provisions of national legislation that introduce a five-fold increase in the flat-rate tax to be paid on slot machines operated in amusement arcades and, in addition, introduce a proportional tax on that activity, do not constitute ‘technical rules’ within the meaning of that provision, and that the provisions of national legislation that prohibit the operation of slot machines outside casinos constitute ‘technical rules’ within the meaning of that provision, the drafts of which must be communicated in accordance with the first subparagraph of Article 8(1) of that directive.
    5. Article 56 TFEU is intended to confer rights on individuals, in such a way that its infringement by a Member State, including as a result of its legislative activity, gives rise to a right of individuals to obtain from that Member State compensation for the damage suffered as a result of that infringement, provided that that infringement is sufficiently serious and there is a direct causal link between that infringement and the damage sustained, this being a matter which it is for the national court to determine.
    6. Articles 8 and 9 of Directive 98/34, as amended by Directive 2006/96, are not intended to confer rights on individuals, in such a way that their infringement by a Member State gives rise to a right of individuals to obtain from that Member State compensation for the damage suffered as a result of that infringement on the basis of EU law.
    7. The fact that national legislation such as that at issue in the main proceedings concerns an area falling within the competence of the Member States does not affect the answers to the questions raised by the referring court.
  • Paragraphs referring to EU Charter

    74) Moreover, it should be noted that, where a Member State relies on overriding requirements in the public interest in order to justify rules which are liable to obstruct the exercise of the freedom to provide services, such justification must also be interpreted in the light of the general principles of EU law, in particular the fundamental rights now guaranteed by the Charter of Fundamental Rights of the European Union (‘the Charter’). Thus, the national rules in question can fall under the exceptions provided for only if they are compatible with the fundamental rights the observance of which is ensured by the Court (see, to that effect, judgments in ERT, C‑260/89, EU:C:1991:254, paragraph 43; Familiapress, C‑368/95, EU:C:1997:325, paragraph 24, and Ålands Vindkraft, C‑573/12, EU:C:2014:2037, paragraph 125).

    75) In the present case, the applicants in the main proceedings argue that the legislation at issue infringes, first, the principles of legal certainty and the protection of legitimate expectations and, secondly, the right to property enshrined in Article 17 of the Charter.

    ...

    89) The applicants in the main proceedings also allege that national legislation such as that at issue in those proceedings infringes the right to property of amusement arcade operators, enshrined in Article 17 of the Charter.

    90) In that regard, it should be noted that national legislation that is restrictive from the point of view of Article 56 TFEU is also capable of limiting the right to property enshrined in Article 17 of the Charter. Likewise, the Court has already held that an unjustified or disproportionate restriction of the freedom to provide services under Article 56 TFEU is also not permitted under Article 52(1) of the Charter, in relation to Article 17 thereof (Pfleger and Others, C‑390/12, EU:C:2014:281, paragraphs 57 and 59).

    91) It follows that, in the present case, the examination, carried out in paragraphs 56 to 73 of the present judgment, of the restriction represented by legislation such as that at issue in the main proceedings from the point of view of Article 56 TFEU also covers possible limitations of the exercise of the right to property guaranteed by Article 17 of the Charter, so that a separate examination is not necessary (see, to that effect, Pfleger and Others, C‑390/12, EU:C:2014:281, paragraph 60).

    ...

    74) Moreover, it should be noted that, where a Member State relies on overriding requirements in the public interest in order to justify rules which are liable to obstruct the exercise of the freedom to provide services, such justification must also be interpreted in the light of the general principles of EU law, in particular the fundamental rights now guaranteed by the Charter of Fundamental Rights of the European Union (‘the Charter’). Thus, the national rules in question can fall under the exceptions provided for only if they are compatible with the fundamental rights the observance of which is ensured by the Court (see, to that effect, judgments in ERT, C‑260/89, EU:C:1991:254, paragraph 43; Familiapress, C‑368/95, EU:C:1997:325, paragraph 24, and Ålands Vindkraft, C‑573/12, EU:C:2014:2037, paragraph 125).

    75) In the present case, the applicants in the main proceedings argue that the legislation at issue infringes, first, the principles of legal certainty and the protection of legitimate expectations and, secondly, the right to property enshrined in Article 17 of the Charter.

    ...

    89) The applicants in the main proceedings also allege that national legislation such as that at issue in those proceedings infringes the right to property of amusement arcade operators, enshrined in Article 17 of the Charter.

    90) In that regard, it should be noted that national legislation that is restrictive from the point of view of Article 56 TFEU is also capable of limiting the right to property enshrined in Article 17 of the Charter. Likewise, the Court has already held that an unjustified or disproportionate restriction of the freedom to provide services under Article 56 TFEU is also not permitted under Article 52(1) of the Charter, in relation to Article 17 thereof (Pfleger and Others, C‑390/12, EU:C:2014:281, paragraphs 57 and 59).

    91) It follows that, in the present case, the examination, carried out in paragraphs 56 to 73 of the present judgment, of the restriction represented by legislation such as that at issue in the main proceedings from the point of view of Article 56 TFEU also covers possible limitations of the exercise of the right to property guaranteed by Article 17 of the Charter, so that a separate examination is not necessary (see, to that effect, Pfleger and Others, C‑390/12, EU:C:2014:281, paragraph 60).

    ...