Robert Pfleger, Mladen Vucicevic, Maroxx Software GmbH, Ing. Hans-Jorg Zehetner [2013] EUECJ C-390/12 (14 November 2013)

Robert Pfleger, Mladen Vucicevic, Maroxx Software GmbH, Ing. Hans-Jorg Zehetner [2013] EUECJ C-390/12 (14 November 2013)

National legislation restricting the organisation of games of chance to a limited number of licensed operators, enforced by criminal and administrative penalties, is precluded by Article 56 TFEU unless justified by overriding public interest objectives (such as consumer protection or crime prevention), pursued consistently and proportionately. The Charter applies to such derogations. Criminal liability may only extend to those who knew or ought to have known of their contribution to the breach. Automatic confiscation and destruction of gaming machines without consideration of culpability is disproportionate and precluded by EU law.

Citation
[2013] EUECJ C-390/12
Parties
Applicant: Robert Pfleger; Applicant: Autoart a.s.; Applicant: Mladen Vucicevic; Applicant: Maroxx Software GmbH; Applicant: Ing. Hans-Jörg Zehetner; Referring Court: Unabhängiger Verwaltungssenat des Landes Oberösterreich (Austria)
Jurisdiction
European Union
Judgment Date
14 November 2013
Procedural Posture
Preliminary Ruling (cjeu) / Opinion of Advocate General
Outcome
Preliminary opinion: National law precluded unless justified, consistent, and proportionate; criminal liability and penalties must be limited and proportionate; automatic confiscation/destruction without regard to culpability is precluded.
Legal Topics
Freedom to Provide Services, Games of Chance Regulation, Proportionality, Charter of Fundamental Rights, Licensing of Gaming Machines, Criminal and Administrative Penalties, Property Rights, Rule of Law, Legal Certainty
European Union Law Administrative Law Criminal Law Freedom to Provide Services Games of Chance Regulation Proportionality Charter of Fundamental Rights Licensing of Gaming Machines +4 more

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Parties

Robert Pfleger

Applicant

Autoart a.s.

Applicant

Mladen Vucicevic

Applicant

Maroxx Software GmbH

Applicant

Ing. Hans-Jörg Zehetner

Applicant

Unabhängiger Verwaltungssenat des Landes Oberösterreich (Austria)

Referring Court

Procedural Posture

Preliminary Ruling (cjeu) / Opinion of Advocate General

Legal Issues

  1. 1 Whether Austrian legislation restricting gaming machines to licensed operators in limited numbers, with criminal and administrative penalties, is compatible with Article 56 TFEU and the Charter of Fundamental Rights, particularly regarding proportionality, legal certainty, and property rights.

Ratio Decidendi

National legislation restricting the organisation of games of chance to a limited number of licensed operators, enforced by criminal and administrative penalties, is precluded by Article 56 TFEU unless justified by overriding public interest objectives (such as consumer protection or crime prevention), pursued consistently and proportionately. The Charter applies to such derogations. Criminal liability may only extend to those who knew or ought to have known of their contribution to the breach. Automatic confiscation and destruction of gaming machines without consideration of culpability is disproportionate and precluded by EU law.

Court Disposition

Preliminary opinion: National law precluded unless justified, consistent, and proportionate; criminal liability and penalties must be limited and proportionate; automatic confiscation/destruction without regard to culpability is precluded.

Orders

  • Article 56 TFEU precludes national legislation restricting games of chance to limited licensees unless justified, consistent, and proportionate; national court to determine if criteria are met.
  • Criminal liability may extend only to those who knew or ought to have known their actions contributed to the breach.