Engelmann (Freedom to provide services) French Text [2010] EUECJ C-64/08 (23 February 2010)

Engelmann (Freedom to provide services) French Text [2010] EUECJ C-64/08 (23 February 2010)

National legislation reserving gambling concessions to companies with seat in the national territory constitutes direct discrimination contrary to Article 43 EC and cannot be justified by the need for effective state control. Exclusion of non-nationals from concession tenders is also contrary to Articles 43 and 49 EC. A 15-year concession period is not in itself contrary to EU law if proportionate. The existence of advertising by concession holders does not necessarily render the system incoherent, but the national court must verify if such advertising is consistent with the stated regulatory aims and does not primarily serve fiscal interests.

Parties
Prosecutor: Staatsanwaltschaft Linz; Defendant: Ernst Engelmann
Jurisdiction
European Union
Judgment Date
23 February 2010
Procedural Posture
Preliminary Ruling (demande De Décision Préjudicielle) / Opinion of Advocate General
Outcome
Opinion proposes that the Court answer the questions as follows: (1) Article 43 EC precludes national rules reserving gambling concessions to companies with seat in the national territory; (2) Advertising by concession holders does not per se render the system incoherent, but the national court must assess...
Legal Topics
Gambling Regulation, State Monopoly, Discrimination, Proportionality, Transparency in Public Concessions
EU Law Freedom of Establishment Freedom to Provide Services Gambling Regulation State Monopoly Discrimination Proportionality Transparency in Public Concessions

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Parties

Staatsanwaltschaft Linz

Prosecutor

Ernst Engelmann

Defendant

Procedural Posture

Preliminary Ruling (demande De Décision Préjudicielle) / Opinion of Advocate General

Legal Issues

  1. 1 Whether national legislation reserving gambling concessions to companies with seat in the national territory is compatible with Article 43 EC (freedom of establishment)
  2. 2 Whether a national monopoly on gambling is compatible with Articles 43 and 49 EC in the absence of a coherent and systematic policy
  3. 3 Whether exclusion of non-nationals from concession tenders and a 15-year concession period are compatible with EU law

Ratio Decidendi

National legislation reserving gambling concessions to companies with seat in the national territory constitutes direct discrimination contrary to Article 43 EC and cannot be justified by the need for effective state control. Exclusion of non-nationals from concession tenders is also contrary to Articles 43 and 49 EC. A 15-year concession period is not in itself contrary to EU law if proportionate. The existence of advertising by concession holders does not necessarily render the system incoherent, but the national court must verify if such advertising is consistent with the stated regulatory aims and does not primarily serve fiscal interests.

Court Disposition

Opinion proposes that the Court answer the questions as follows: (1) Article 43 EC precludes national rules reserving gambling concessions to companies with seat in the national territory; (2) Advertising by concession holders does not per se render the system incoherent, but the national court must assess...