FOURTH SECTION

DECISION

Application no. 15480/19 MS BET SPORTWETTEN GMBH & CO. KG against Austria

The European Court of Human Rights (Fourth Section), sitting on 18 October 2022 as a Committee composed of:

Tim Eicke, President , Faris Vehabović, Pere Pastor Vilanova , judges , and Veronika Kotek, Acting Deputy Section Registrar ,

Having regard to:

the application (no. 15480/19) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 17 April 2018 by an Austrian company, MS BET Sportwetten GmbH & Co. KG (“the applicant company”), which is based in Vienna and was represented by Mr S. von Raumer and Mr M. Ilyas, lawyers practising in Berlin and Vienna respectively;

the decision to give notice of the application to the Austrian Government (“the Government”), represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the applicant company’s complaint under Article 6 § 1 of the Convention that the refusal of the domestic courts to grant its request for a preliminary ruling from the Court of Justice of the European Union (CJEU) rendered the proceedings in its case unfair.

2. On 16 March 2016 the applicant company requested a renewal of its temporary business permit as a broker for betting customers. On 14 May 2016, the Vienna Betting Act ( Wiener Wettengesetz ) came into force and replaced previous relevant statutory provisions. On 27 October 2016 the applicant company lodged a complaint with the Vienna Regional Administrative Court ( Landesverwaltungsgericht ) regarding the Vienna Municipal Authority’s ( Magistrat ) failure to decide on its request. On 8 May 2017 the Vienna Regional Administrative Court dismissed the applicant company’s request for a renewal of its business permit. It held that the applicant company had failed to amend its request in accordance with the Vienna Betting Act.

3. In appeals to the Constitutional Court ( Verfassungsgerichtshof ) and to the Supreme Administrative Court ( Verwaltungsgerichtshof ), the applicant company asked each court to seek a preliminary ruling from the CJEU on the question of the compatibility of the Vienna Betting Act with European Union (EU) law. On 21 September 2017 the Constitutional Court declined to deal with the applicant company’s appeal. On 5 September 2018 the Supreme Administrative Court rejected the applicant company’s appeal. Neither the Constitutional Court nor the Supreme Administrative Court gave any specific reasons on the subject of the request to seek a preliminary ruling from the CJEU.

4. The applicant company complained in particular that the domestic courts had not sought a preliminary ruling from the CJEU and had not dealt with its arguments in that regard.

THE COURT’S ASSESSMENT

5. It is not disputed between the parties, and the Court sees no reason to hold otherwise, that Article 6 of the Convention is applicable to the present case.

6. The general principles governing the assessment of whether domestic courts have an obligation under the Convention to seek a preliminary ruling from the CJEU and whether they have duly reasoned their decision not to seek a preliminary ruling have been summarised in Ullens de Schooten and Rezabek v. Belgium (nos. 3989/07 and 38353/07, §§ 54‑62, 20 September 2011), Harisch v. Germany (no. 50053/16, §§ 33-36, 11 April 2019) and Sanofi Pasteur v. France (no. 25137/16, §§ 68-70, 13 February 2020).

7 . In accordance with these principles, the Convention does not guarantee, as such, the right to have a case referred by a domestic court to the CJEU for a preliminary ruling. A domestic court’s refusal to grant a referral may, however, infringe the fairness of proceedings within the meaning of Article 6 § 1 of the Convention where the refusal proves to have been arbitrary, for instance where it was not duly reasoned (see Harisch , cited above, § 33). In the specific context of the third paragraph of Article 234 of the Treaty establishing the European Community (Article 267 of the Treaty on the Functioning of the European Union), this means that where national courts against whose decisions there is no remedy under national law refuse to refer to the CJEU a preliminary question on the interpretation of EU law that has been raised before them, they are obliged to give reasons for their refusal in the light of the exceptions provided for in the case-law of the CJEU. They will thus be required, in accordance with the latter’s Cilfit case-law, to indicate the reasons why they have found that the question is irrelevant, that the EU law provision in question has already been interpreted by the CJEU, or that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt (see Ullens de Schooten and Rezabek , cited above, § 62, and Sanofi Pasteur , cited above, § 67).

8. The obligation for domestic courts to provide reasons for their judgments and decisions serves to enable the parties to understand the judicial decision that has been given, which is a vital safeguard against arbitrariness, and to demonstrate to the parties that they have been heard (see Harisch , cited above, § 33).

9. It is acceptable for the national superior courts to dismiss a complaint by mere reference to the relevant legal provisions governing such complaints if the matter raises no fundamentally important legal issue, or by simply endorsing the reasons for the lower court’s decision (ibid., § 35).

10. The Court must therefore examine whether the reasoning in the Constitutional Court’s decision of 21 September 2017 and in the Supreme Administrative Court’s decision of 5 September 2018 enabled the applicant company to understand the refusal to seek a preliminary ruling from the CJEU in its case.

11. In its complaint to the Constitutional Court, the applicant company argued, as regards EU law, that the contested decision had violated its right to an effective remedy and to a fair trial, which derived from Article 47 of the EU Charter of Fundamental Rights. It also contended that the Vienna Betting Act violated the right to free movement of services under EU law as it made the brokerage of bets subject to licensing, which violated the transparency and complementarity requirements and the principle of proportionality resulting from CJEU case law.

The Constitutional Court based its decision not to deal with the applicant company’s appeal on the grounds that the alleged violation of its rights resulted, at most, from a misapplication of ordinary law and raised no issues of constitutional law. Since, under domestic law, the Constitutional Court only deals with issues of constitutional law, it provided comprehensible reasons why it did not examine the merits of the applicant company’s appeal any further. For that reason, it is self-evident that the Constitutional Court did not seek a preliminary ruling from the CJEU on the issues in question, which, in its view, did not fall within its jurisdiction.

12. In its appeal ( außerordentliche Revision ) to the Supreme Administrative Court, the applicant company raised various questions concerning EU law. Regarding the admissibility of its appeal, however, the applicant company only contended that the legal reasoning of the Regional Administrative Court had deprived it of its right to an effective remedy under Article 47 of the EU Charter of Fundamental Rights.

The Supreme Administrative Court responded that in accordance with domestic law, an appeal to the Supreme Administrative Court was only admissible if it required the resolution of a legal question of fundamental importance. That was the case if the contested decision deviated from the Supreme Administrative Court’s case-law, or if its case-law was lacking or if the legal question at issue had previously been answered inconsistently. Whether a legal question of fundamental importance was at stake had to be assessed solely on the basis of the appellant’s statement of grounds for the admissibility of the appeal. Since the applicant company, in that section of its appeal, only hinted at a violation of EU law, but neither specified an unresolved issue of EU law nor explained why this issue required clarification by the CJEU, it appears sufficient that the Supreme Administrative Court merely explained why a legal question of fundamental importance had not been raised, thus rendering the appeal inadmissible. It follows that the recipient of the decision was enabled to infer from this why the Supreme Administrative Court had not examined the appeal on the merits any further and thus not sought a preliminary ruling from the CJEU.

13. Under these circumstances, the Court cannot agree with the applicant company’s contention that the domestic proceedings were unfair within the meaning of the Court’s case-law. It is evident from the above that the domestic courts, in essence, found that the questions the applicant company wished to submit for a preliminary ruling were not relevant because, in the case of the Constitutional Court, they had not raised matters of constitutional law, and, in the case of the Supreme Administrative Court, the applicant company had failed to show a legal question of fundamental importance. The domestic courts thus gave reasons in the light of the CJEU’s Cilfit case-law (see paragraph 7 above) which enabled the applicant company to understand their decisions, and thus observed the procedural guarantees under Article 6 § 1 of the Convention. The Court does not need to examine whether the decisions of the Constitutional Court and the Supreme Administrative Court were correct as it is not for the Court to examine any errors that might have been committed by the domestic courts in interpreting or applying the relevant law (see Ullens de Schooten and Rezabek , cited above, § 61). In conclusion, no sign of arbitrariness can be detected in the Constitutional Court’s decision of 21 September 2017 and the Supreme Administrative Court’s decision of 5 September 2018, both rejecting the applicant company’s request for a preliminary ruling from the CJEU. The application is therefore manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 17 November 2022.

Veronika Kotek Tim Eicke Acting Deputy Registrar President