Case C-36/02

Omega Spielhallen- und Automatenaufstellungs-GmbH

v

Oberbürgermeisterin der Bundesstadt Bonn

(Reference for a preliminary ruling from the Bundesverwaltungsgericht)

(Freedom to provide services – Free movement of goods – Restrictions – Public policy – Human dignity – Protection of fundamental values laid down by the national constitution – ‘Playing at killing’)

Summary of the Judgment

1. Freedom to provide services – Restrictions – Justification on grounds of public policy – Need for and proportionality of the measures – Existence of different systems of protection in other Member States – Not relevant

(Arts 46 EC and 49 EC)

2. Freedom to provide services – Restrictions – National legislation prohibiting the commercial exploitation of games simulating acts of homicide – Justification – Protection of public policy – Respect for human dignity as a general principle of law

(Arts 46 EC and 49 EC)

1. Whilst measures which restrict the freedom to provide services may be justified on public policy grounds only if they are necessary for the protection of the interests which they are intended to guarantee and only in so far as those objectives cannot be attained by less restrictive measures, it is not indispensable in that respect for the restrictive measure issued by the authorities of a Member State to correspond to a conception shared by all Member States as regards the precise way in which the fundamental right or legitimate interest in question is to be protected. Thus the need for, and proportionality of, the provisions adopted are not excluded merely because one Member State has chosen a system of protection different from that adopted by another State.

(see paras 36-38)

2. Community law does not preclude an economic activity consisting of the commercial exploitation of games simulating acts of homicide from being made subject to a national prohibition measure adopted on grounds of protecting public policy by reason of the fact that that activity is an affront to human dignity.

That measure cannot be regarded as one imposing an unjustified restriction on the freedom to provide services. In the first place, the protection of fundamental rights, it being stated that the Community legal order undeniably strives to ensure respect for human dignity as a general principle of law, constitutes a legitimate interest capable in principle of justifying a restriction on the obligations imposed by Community law, even by virtue of a fundamental freedom guaranteed by the Treaty such as the freedom to provide services. Secondly, the measure in question corresponds to the level of protection of human dignity which the national constitution intended to ensure in the territory of the Member State concerned and does not go beyond what is necessary to achieve the objective pursued.

(see paras 34-35, 39-41, operative part)

JUDGMENT OF THE COURT (First Chamber) 14 October 2004 (1)

(Freedom to provide services – Free movement of goods – Restrictions – Public policy – Human dignity – Protection of fundamental values laid down in the national constitution – ‘Playing at killing’)

In Case C-36/02,REFERENCE for a preliminary ruling under Article 234 EC,from the Bundesverwaltungsgericht (Germany), made by decision of 24 October 2001, received at the Court on 12 February 2002, in proceedings between:

v

THE COURT (First Chamber),,

composed of P. Jann, President of the Chamber, A. Rosas (Rapporteur), R. Silva de Lapuerta, K. Lenaerts and S. von Bahr, Judges, and

Advocate General: C. Stix-Hackl,

having regard to the written procedure and further to the hearing on 4 February 2004,after considering the observations submitted on behalf of:

after hearing the Opinion of the Advocate General at the sitting on 18 March 2004,

gives the following

‘The police authorities may take measures necessary to avert a risk to public order or safety in an individual case’.

‘Is it compatible with the provisions on freedom to provide services and the free movement of goods contained in the Treaty establishing the European Community for a particular commercial activity – in this case the operation of a so-called “laserdrome” involving simulated killing action – to be prohibited under national law because it offends against the values enshrined in the constitution?’

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

Signatures.