In the course of criminal proceedings commenced against Jochen Dickinger and Franz Ömer, the Austrian Court requested a preliminary ruling from the European Court of Justice on the interpretation of Articles 43 EC and 49 EC (Article 49 and 56 TFEU).
A reference for a preliminary ruling to the European Court of Justice (hereinafter EU Court) may be requested by courts of the European Union member states on questions raised in disputes brought before them about the interpretation of European Union law or the validity of a European Union Act. The EU Court does not decide the dispute itself but a decision rests with the national court or tribunal. The decision is similarly binding on other national courts or tribunals before which a similar issue is raised.
Mr Dickinger and Mr Ömer, who are Austrian nationals, are the founders of the multinational online games group bet-at-home.com. Criminal proceedings were brought against them alleging breach of national Austrian law. Mr Dickinger and Mr Ömer pleaded that national legislation ran against European Union legislation.
The Court concluded that EU law precludes the imposition of criminal penalties for infringement of a monopoly of operating games of chance laid down by the national law if the said legislation is not compatible with European Union law.
Furthermore, an EU country may institute monopolies with the objective of fighting crime and reducing opportunities for gambling if the legislation is based on finding that crime and fraud caused by gaming and addiction to it are a problem in the EU country concerned. The Court further concluded that the fact that an EU country has chosen a system of protection that differs from that adopted by another EU country cannot affect the assessment of the need for and proportionality of the relevant provisions.
