Austrian legislation has created a monopoly in relation to gambling, which means that the right to organise and operate games of chance is reserved to the Austrian state.
Casino games marketed over the internet are treated as lotteries and accordingly subject to the concession rules governing lotteries which permit only one concession, covering all such games, to be in force at any one time. The holder of the concession must be a capital company established in Austria and come under the supervision of the Austrian authorities. At present, the holder of the sole concession until 2012 is Österreichische Lotterien GmbH.
The organisation of games of chance without a concession is a criminal offence. Jochen Dickinger and Franz Ömer, both Austrians, are the founders of the multinational online games group bet-at-home.com. Members of that group include a number of Maltese subsidiaries which offer games of chance and sporting bets on the internet at the website www.bet-at- home.com and which hold Maltese licences for these activities.
The website is accessible in several languages, including German. The Maltese subsidiaries used, until December 2007 at least, a server in Linz, Austria, made available to them by Bet-at-home.com Entertainment GmbH, of which Dickinger and Ömer were directors, which also maintained the website and the software needed for the games and provided customer support.
Criminal proceedings were brought against Dickinger and Ömer in their capacity as directors of Bet-at-home.com Entertainment GmbH, alleging infringements of the Austrian law on games of chance. The Bezirksgericht Linz (District Court, Linz), the court before which those proceedings were brought, is uncertain whether the Austrian rules are compatible with EU law - and, in particular, with the freedom of establishment and the freedom to provide services - and accordingly decided to refer a number of questions to the Court of Justice for a preliminary ruling.
In its judgment, the court notes that, according to its case law, a monopoly on games of chance constitutes a restriction of the freedom to provide services but that such a restriction may nevertheless be justified by overriding reasons in the public interest, such as the objective of ensuring a particularly high level of consumer protection.
