On the fact, FC activities shall be considered as an establishment for the purpose of
Art.49 as according to Gebhard. It is clear that FC set-up of agencies, branches or
subsidiaries in another member states of Austria and it is likely to be “on a stable and
continuous basis rather than on temporary basis, however Austria law may contrary
to EU law on the prohibition of installing slot machines without the official permit
(“licence”). Since slot machines is said to be kind of gambling game in question and
it is likely to be illegal, but it does not escape the application of Art.49. However, very
often it may be justified.
Whilst licence requirement could have infringed Art.49, Austria may be able to justify
the restriction under list of derogations available under Art.51 or Art.52. The
application of these two articles is rather similar with how such exceptions are
applied in the context of free movement of persons. The relevant ground of
exemption on the fact would be on public policy, public security, public health
(Art.52). Public policy narrowly constructed, so it may not be easy to rely on this
ground. Having said that, since the measure is a non-discriminatory one, FC can rely
on the case of Segar.
Given that licence requirement is non-discrimination measure as it will be assumed
to concern both Austria and residence in another member states, Austria may rely on
the principle establish in Sager v Dennemeyer. In Sager, court stated that “The
freedom to provide services may be limited only by rules which are justified by
imperative reasons relating to the public interest and which apply to all persons and
undertakings pursuing an activity in the State of destination in so far as that interest
is not protected by rules to which the person providing the service is subject in the
State in which he is established. In particular, these requirements must be
objectively necessary in order to ensure compliance with professional rules and must
not exceed what is necessary to attain these objectives.”
Austria may seek to justify such licence requirement on the basis of consumer
protection. Austria may reason that if gambling kind of slot machine is made it easy
to operate without licence, then it will not only increase criminal activities but it also
endangers individuals and families as they could become addicted to gambling and
betting especially children as they love playing slot machines, it may therefore argue
that it intends to prevent such behaviour in order to maintain order in the Austria
society (Schindler, Anomar). Further by imposing such licencing requirement may
also discourage the number of operated in country (Commission v Netherlands).
However, such measures will only be justified if they are proportional, thus Austria
need to satisfy the requirements of suitability and necessity. The licencing
requirement likely to be not proportionate to the aim of protecting consumer, as if the
consumer protection is serious concern of the member state, member states should
have total abandon it. Therefore, argument on this ground is not hold water, member
states could alternatively run a campaign or impose certain requirement for them to
educate the citizen.
However, as in the case of Bwin, although the measure seems to be clearly
disproportionate, the Court held instead that is was proportionate emphasising that
Art.49 as according to Gebhard. It is clear that FC set-up of agencies, branches or
subsidiaries in another member states of Austria and it is likely to be “on a stable and
continuous basis rather than on temporary basis, however Austria law may contrary
to EU law on the prohibition of installing slot machines without the official permit
(“licence”). Since slot machines is said to be kind of gambling game in question and
it is likely to be illegal, but it does not escape the application of Art.49. However, very
often it may be justified.
Whilst licence requirement could have infringed Art.49, Austria may be able to justify
the restriction under list of derogations available under Art.51 or Art.52. The
application of these two articles is rather similar with how such exceptions are
applied in the context of free movement of persons. The relevant ground of
exemption on the fact would be on public policy, public security, public health
(Art.52). Public policy narrowly constructed, so it may not be easy to rely on this
ground. Having said that, since the measure is a non-discriminatory one, FC can rely
on the case of Segar.
Given that licence requirement is non-discrimination measure as it will be assumed
to concern both Austria and residence in another member states, Austria may rely on
the principle establish in Sager v Dennemeyer. In Sager, court stated that “The
freedom to provide services may be limited only by rules which are justified by
imperative reasons relating to the public interest and which apply to all persons and
undertakings pursuing an activity in the State of destination in so far as that interest
is not protected by rules to which the person providing the service is subject in the
State in which he is established. In particular, these requirements must be
objectively necessary in order to ensure compliance with professional rules and must
not exceed what is necessary to attain these objectives.”
Austria may seek to justify such licence requirement on the basis of consumer
protection. Austria may reason that if gambling kind of slot machine is made it easy
to operate without licence, then it will not only increase criminal activities but it also
endangers individuals and families as they could become addicted to gambling and
betting especially children as they love playing slot machines, it may therefore argue
that it intends to prevent such behaviour in order to maintain order in the Austria
society (Schindler, Anomar). Further by imposing such licencing requirement may
also discourage the number of operated in country (Commission v Netherlands).
However, such measures will only be justified if they are proportional, thus Austria
need to satisfy the requirements of suitability and necessity. The licencing
requirement likely to be not proportionate to the aim of protecting consumer, as if the
consumer protection is serious concern of the member state, member states should
have total abandon it. Therefore, argument on this ground is not hold water, member
states could alternatively run a campaign or impose certain requirement for them to
educate the citizen.
However, as in the case of Bwin, although the measure seems to be clearly
disproportionate, the Court held instead that is was proportionate emphasising that
