Contents
Judgment of the Court (Fifth Chamber)13 March 2025note(Reference for a preliminary ruling — Information procedure in the field of technical standards and regulations and of rules on Information Society services — Directive (EU) 2015/1535 — Article 1(1)(e) and (f) — Concepts of technical regulation and rule on services — National legislation laying down a prohibition on encouraging participation in gambling, including remote gambling — Article 5(1) — Obligation to notify the European Commission — Amendment of that legislation extending the scope of the prohibition on encouraging gambling — No notification — Consequences)In Case C‑120/24,REQUEST for a preliminary ruling under Article 267 TFEU from the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania), made by decision of 14 February 2024, received at the Court on 15 February 2024, in the proceedings‘Unigames’ UABvLošimų priežiūros tarnyba prie Lietuvos Respublikos finansų ministerijos,THE COURT (Fifth Chamber),composed of M.L. Arastey Sahún (Rapporteur), President of the Chamber, D. Gratsias, E. Regan, J. Passer and B. Smulders, Judges,Advocate General: N. Emiliou,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– ‘Unigames’ UAB, by M. Rindinas, advokatas,– the Lithuanian Government, by S. Grigonis and V. Kazlauskaitė-Švenčionienė, acting as Agents,– the Italian Government, by S. Fiorentino, acting as Agent, and by F. Meloncelli, avvocato dello Stato,– the European Commission, by M. Escobar Gómez and J. Jokubauskaitė, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following
Judgment
1This request for a preliminary ruling concerns the interpretation of Article 1(1)(f) and Article 5(1) of Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (OJ 2015 L 241, p. 1).
2The request has been made in proceedings between ‘Unigames’ UAB and the Lošimų priežiūros tarnyba prie Lietuvos Respublikos finansų ministerijos (Gambling Supervisory Authority under the Ministry of Finance of the Republic of Lithuania; ‘the Supervisory Authority’) concerning an order of the director of that authority finding that Unigames infringed the prohibition on encouraging participation in gambling and imposing a fine on it.
Legal context
European Union law
3Article 1(1) of Directive 2015/1535 states:‘For the purposes of this Directive, the following definitions apply:…(b) “service” means any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.For the purposes of this definition:(i) “at a distance” means that the service is provided without the parties being simultaneously present;(ii) “by electronic means” means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means;(iii) “at the individual request of a recipient of services” means that the service is provided through the transmission of data on individual request.An indicative list of services not covered by this definition is set out in Annex I;…(e) “rule on services” means a requirement of a general nature relating to the taking-up and pursuit of service activities within the meaning of point (b), in particular provisions concerning the service provider, the services and the recipient of services, excluding any rules which are not specifically aimed at the services defined in that point.For the purposes of this definition:(i) a rule shall be considered to be specifically aimed at Information Society services where, having regard to its statement of reasons and its operative part, the specific aim and object of all or some of its individual provisions is to regulate such services in an explicit and targeted manner;(ii) a rule shall not be considered to be specifically aimed at Information Society services if it affects such services only in an implicit or incidental manner;(f) “technical regulation” means technical specifications and other requirements or rules on services, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing, provision of a service, establishment of a service operator or use in a Member State or a major part thereof, as well as laws, regulations or administrative provisions of Member States, except those provided for in Article 7, prohibiting the manufacture, importation, marketing or use of a product or prohibiting the provision or use of a service, or establishment as a service provider.…(g) “draft technical regulation” means the text of a technical specification or other requirement or of a rule on services, including administrative provisions, formulated with the aim of enacting it or of ultimately having it enacted as a technical regulation, the text being at a stage of preparation at which substantial amendments can still be made.’
4Article 5(1) of that directive provides:‘Subject to Article 7, Member States shall immediately communicate to the [European] Commission any draft technical regulation, except where it merely transposes the full text of an international or European standard, in which case information regarding the relevant standard shall suffice; they shall also let the Commission have a statement of the grounds which make the enactment of such a technical regulation necessary, where those grounds have not already been made clear in the draft.Where appropriate, and unless it has already been sent with a prior communication, Member States shall simultaneously communicate the text of the basic legislative or regulatory provisions principally and directly concerned to the Commission, should knowledge of such text be necessary to assess the implications of the draft technical regulation.Member States shall communicate the draft technical regulation again to the Commission under the conditions set out in the first and second subparagraphs of this paragraph if they make changes to the draft that have the effect of significantly altering its scope, shortening the timetable originally envisaged for implementation, adding specifications or requirements, or making the latter more restrictive.…’
Lithuanian law
5Article 10(19) of the Lietuvos Respublikos azartinių lošimų įstatymas Nr. IX-325 (Law of the Republic of Lithuania No IX-325 on gambling) of 17 May 2001 (Žin., 2001, No 43-1495), in the version applicable to the dispute in the main proceedings, namely the version resulting from Law No XIV-337 of 20 May 2021 (TAR, 2021, No 2021-12786) (‘the Law on gambling’), provides:‘In Lithuania, it shall be prohibited to encourage participation in gambling by disseminating information or by performing acts of persuasion in any form and by any means, including special events, trial games, promotions, discounts, gifts and similar incentives operated by the gambling operator itself, for the purpose of encouraging participation in gambling or remote gambling.’
6Until the entry into force of Law No XIV-337 of 20 May 2021, Article 10(19) of the Law on gambling, as amended by Law No XII-1734 of 21 May 2015 (TAR, 2015, No 2015-8980) (‘the former Law on gambling’), provided:‘In Lithuania, it shall be prohibited to encourage participation in gambling in the following ways:(1) by granting the player the right to receive gifts from the gambling operator on an immediate basis or within a certain period following participation in gambling;(2) by operating games or competitions, trial games, lotteries and other events that encourage participation in gambling, including remote gambling, outside of gambling venues or the gambling operator’s website.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
7Unigames is a company that holds a licence authorising it to operate gambling activities. It provides remote gambling services on its website.
8During an inspection carried out by the Supervisory Authority, it found that there were a number of statements on that website which had to be regarded as infringing the prohibition on encouraging participation in gambling laid down in Article 10(19) of the Law on gambling.
9Following that inspection, on 19 May 2022, the director of that authority adopted an order in which he found that Unigames had committed several infringements and imposed a financial penalty on it (‘the order of 19 May 2022’). More specifically, it is apparent from that order, first, that, during the period from 13 October 2021 to 3 February 2022, that authority found that, on Unigames’ website, there were statements encouraging visitors to that site to participate in remote gambling, in breach of Article 10(19) of the Law on gambling. Second, on the date on which that order was adopted, that site still displayed statements which infringed the prohibition on encouraging participation in gambling laid down in that provision. Third, by that order, Unigames was issued a fine of EUR 12662, was warned of the possible suspension of the licence authorising it to operate gambling activities and was ordered to bring the infringement to an end by no later than 20 June 2022.
10Unigames brought an action before the Vilniaus apygardos administracinis teismas (Regional Administrative Court, Vilnius, Lithuania) for annulment of the order of 19 May 2022, claiming that the procedure for the adoption of Article 10(19) of the Law on gambling had been infringed.
11By judgment of 10 August 2022, that court dismissed that action, on the ground that the prohibition on encouraging participation in gambling had not been newly introduced into the Law on gambling, but was already laid down in Article 10(19) of the former Law on gambling. That court concluded that the Lithuanian authorities were therefore not under an obligation to communicate to the Commission, under Directive 2015/1535, the draft amendment to Article 10(19) of the Law on gambling before it was adopted by the national legislature. Accordingly, that court rejected as unfounded Unigames’ argument that that provision was unenforceable against it.
12Unigames brought an appeal against that judgment before the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania), which is the referring court.
13That court considers that the case before it raises questions concerning the interpretation of Directive 2015/1535.
14In the first place, the referring court is uncertain whether the rule laid down in that Article 10(19) constitutes a ‘technical regulation’ within the meaning of Article 1(1)(f) of that directive. The latter provision refers to four categories of technical regulations, including that of ‘rule on services’.
15According to the referring court, in the judgment of 4 February 2016, Ince (C‑336/14, EU:C:2016:72, paragraph 75), the Court of Justice already held that certain provisions applicable to gambling in Germany could be classified as ‘rules on services’, in so far as they concerned an ‘Information Society service’ within the meaning of that directive. Those provisions included, inter alia, the prohibition of offering gambling on the internet and of broadcasting advertisements for gambling on the internet or via telecommunications equipment.
16In that regard, the referring court points out that, in Lithuania, it is not prohibited to offer gambling on the internet, but to encourage participation in gambling, that is to say, to publish information or to perform acts encouraging participation in gambling, in any form and by any means.
17The referring court harbours doubts as to whether the rule in Article 10(19) of the Law on gambling, in so far as it concerns information published by the gambling operator on its website, meets all the conditions to be regarded as applying to a ‘service’ within the meaning of Article 1(1)(b) of Directive 2015/1535, in view of the fact that such information is published by that operator itself. According to the referring court, bearing in mind that that operator offers gambling services to visitors to its website, it is natural that that site provides relevant information about gambling and statements that encourage visitors to use those services. In those circumstances, the referring court seeks to ascertain whether the fact that it is the visitor who accesses that site with the intention of using the services in question means that those services are provided by means of a transmission of data at the request of the visitor to the website, in other words ‘at the individual request of a recipient of services’, within the meaning of that Article 1(1)(b).
18In the second place, if the answer to the first question were to confirm that Article 10(19) of the Law on gambling constitutes a ‘technical regulation’ within the meaning of Article 1(1)(f) of Directive 2015/1535, it would also be relevant to ascertain whether that rule should have been notified to the Commission pursuant to Article 5(1) of that directive.
19In that regard, the referring court states that, during the procedure that led to the adoption of Law No XIV-337 of 20 May 2021, the Commission did not receive notification of the draft amendment to Article 10(19) of the Law on gambling.
20The referring court notes that, in the context of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1998 L 204, p. 37), as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998 (OJ 1998 L 217, p. 18), which Directive 2015/1535 repealed but the provisions of which were in essence identical to those of the latter, the Court ruled, in the judgment of 20 December 2017, Falbert and Others (C‑255/16, EU:C:2017:983, paragraph 23), that, in order for new national legislation to be held to be a technical regulation having to be notified, it must not be limited to reproducing or replacing, without adding technical specifications or other new or additional requirements, existing technical regulations which have been duly notified to the Commission.
21In that regard, the referring court emphasises that the prohibition laid down in Article 10(19) of the former Law on gambling had a limited scope which, although it did not change territorially or temporally, has been substantially revised by Article 10(19) of the Law on gambling. According to that court, mere information relating to gambling published on the website of the gambling operator would not have been covered by the prohibition as set out in that former law. Therefore, in its current version, Article 10(19) of the Law on gambling restricted the use of marketing measures and thus extended the scope of the prohibition on encouraging participation in gambling.
22Referring to the judgments of 4 February 2016, Ince (C‑336/14, EU:C:2016:72, paragraph 84), and of 27 October 2016, James Elliott Construction (C‑613/14, EU:C:2016:821, paragraph 64), that court also recalls that the failure of a Member State to comply with its obligation to notify draft technical regulations in advance renders those regulations unenforceable against individuals, whether in criminal proceedings or in proceedings between individuals. Thus, it is uncertain as to the consequences to be drawn by the national authorities from the failure to comply with that obligation to notify in circumstances such as those at issue in the main proceedings, namely where the amendments made to a technical regulation were not notified to the Commission, even though the earlier version of that technical regulation had been notified.
23In those circumstances, the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1) Does a national provision such as that laid down in Article 10(19) of the [Law on gambling] constitute a “technical regulation” within the meaning of Article 1(1)(f) of [Directive 2015/1535], in so far as it relates to information about gambling published on the website of a gambling operator?(2) Must Directive 2015/1535 be interpreted as meaning that a provision of national legislation such as the [Law on gambling], the provisions of which must be notified pursuant to Article 5(1) of Directive 2015/1535 where they are regarded as “technical regulations” within the meaning of Article 1(1)(f) of that directive, is rendered unenforceable against economic operators in proceedings to establish liability for administrative offences if the amendments made to the provision, which is regarded as a technical regulation, have not been notified but the text of the law as previously adopted was notified?’
Consideration of the questions referred
The first question
Admissibility
24Without raising a formal plea that the first question is inadmissible, Unigames states, with regard to the admissibility of that question, that, in accordance with the acte clair doctrine and the acte éclairé doctrine, the referring court was not required to refer that question to the Court.
25According to Unigames, first, the Lietuvos Respublikos teisingumo ministerija (Ministry of Justice of the Republic of Lithuania) declared, during the procedure that led to the adoption of Article 10(19) of the Law on gambling, that that provision constitutes a ‘technical regulation’ within the meaning of Directive 2015/1535, and informed the Lietuvos Respublikos Seimas (Parliament of the Republic of Lithuania) of the obligation to notify the Commission of the draft amendment to that provision under that directive. Consequently, the interpretation of that provision is obvious.
26Second, an administrative court of first instance has held that Article 10(19) of the Law on gambling constitutes such a technical regulation, on the basis of the interpretation given by the Court of Justice in similar preliminary ruling cases.
27In that regard, it is settled case-law that, in proceedings under Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted by the national court concern the interpretation of EU law, the Court is, in principle, bound to give a ruling (judgment of 22 October 2024, Kolin Inşaat Turizm Sanayi ve Ticaret, C‑652/22, EU:C:2024:910, paragraph 36 and the case-law cited).
28In the present case, it should be borne in mind that those circumstances in no way prevent a national court from referring a question for a preliminary ruling to this Court, the answer to which, in the submission of one of the parties to the main proceedings, leaves no scope for reasonable doubt. Accordingly, even if that were the case, such a question does not thereby become inadmissible (see, to that effect, judgment of 9 March 2023, Vapo Atlantic, C‑604/21, EU:C:2023:175, paragraph 33 and the case-law cited).
29It follows that the first question is admissible.
Substance
30By its first question, the referring court asks, in essence, whether Article 1(1)(f) of Directive 2015/1535 must be interpreted as meaning that national legislation that lays down a prohibition on encouraging participation in remote gambling by means of the publication of information relating to gambling on the website of a gambling operator constitutes a ‘technical regulation’ within the meaning of that provision.
31In that regard, it must be borne in mind that the concept of ‘technical regulation’ covers four categories of measures, namely (i) ‘technical specifications’ within the meaning of Article 1(1)(c) of Directive 2015/1535, (ii) ‘other requirements’ as defined in Article 1(1)(d) of that directive, (iii) ‘rules on services’ referred to in Article 1(1)(e) of that directive and (iv) the ‘laws, regulations or administrative provisions of Member States … prohibiting the manufacture, importation, marketing or use of a product or prohibiting the provision or use of a service, or establishment as a service provider’ within the meaning of Article 1(1)(f) of that directive (judgment of 8 October 2020, Admiral Sportwetten and Others, C‑711/19, EU:C:2020:812, paragraph 25 and the case-law cited).
32It is apparent from the grounds of the request for a preliminary ruling that, given that the dispute in the main proceedings does not concern products, the referring court is uncertain, in particular, whether the national legislation at issue in the main proceedings falls within the category of ‘rule on services’, within the meaning of Article 1(1)(e) of Directive 2015/1535, or that of ‘laws, regulations or administrative provisions of Member States … prohibiting the provision or use of a service, or establishment as a service provider’ within the meaning of Article 1(1)(f) of that directive.
33As regards the category of ‘rules on services’, it should be noted that Article 1(1)(e) of that directive defines that concept as referring to any requirement of a general nature relating to the taking-up and pursuit of service activities within the meaning of point (b) of that Article 1(1), in particular provisions concerning the service provider, the services and the recipient of services, excluding any rules which are not specifically aimed at the services defined in that point.
34Article 1(1)(b) of that directive defines the concept of ‘service’ as any ‘Information Society service’, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.
35It is thus apparent from a combined reading of points (b) and (e) of Article 1(1) of Directive 2015/1535 that the category of ‘rule on services’ covers only rules relating to an Information Society service.
36In that regard, it must be held that remote gambling services such as those covered by the national legislation at issue in the main proceedings must be regarded as ‘Information Society services’, within the meaning of Article 1(1)(b) of that directive, such services meeting all the conditions set out in that provision, including the condition that the service must be provided ‘at the individual request of a recipient of services’.
37The provision of those remote gambling services is necessarily conditional upon actions on the part of the recipient, such as accessing the operator’s website and creating a customer account (see, by analogy, judgment of 29 February 2024, Doctipharma, C‑606/21, EU:C:2024:179, paragraph 32) or placing bets on that site.
38The considerations set out in paragraphs 36 and 37 of the present judgment are not called into question by the fact that the information on gambling published by the gambling operator on its website is not necessarily provided ‘at the individual request of a recipient of services’. That publication of information cannot, in circumstances such as those at issue in the main proceedings, be regarded as an advertising service or other service provided to recipients of the remote gambling services, but constitutes an activity that is ancillary to and inseparable from the remote gambling services concerned from which it derives all of its economic meaning (see, by analogy, judgment of 1 October 2020, A (Advertising and sale of medicinal products online), C‑649/18, EU:C:2020:764, paragraph 56). Therefore, it is only the gambling services themselves which must meet the relevant conditions in order to fall within the concept of ‘service’, within the meaning of Article 1(1)(b) of Directive 2015/1535, and the prohibition at issue in the main proceedings, which relates to such a publication of information, must, for its part, satisfy the specific criteria laid down in Article 1(1)(e) of that directive in order to be regarded as a ‘rule on’ those services, within the meaning of the latter provision.
39In the latter regard, while it is common ground that the prohibition at issue in the main proceedings constitutes ‘a requirement of a general nature’ within the meaning of Article 1(1)(e) of Directive 2015/1535, it must still be examined, first, whether it may be regarded as ‘relating to the taking-up and pursuit of service activities’, that provision stating that that is the case, in particular, with regard to provisions concerning the service provider, the services and the recipient of services.
40In that regard, it must be stated that Article 10(19) of the Law on gambling is capable of falling within the concept of a ‘rule on services’, in that it lays down a prohibition on encouraging, inter alia, participation in remote gambling and, in particular, on publishing information relating to gambling on the website of a gambling operator or performing acts encouraging participation in gambling (see, to that effect, judgment of 22 October 2020, Sportingbet and Internet Opportunity Entertainment, C‑275/19, EU:C:2020:856, paragraph 48 and the case-law cited).
41Second, as is apparent from the very wording of Article 1(1)(e) of Directive 2015/1535, in order to be classified as a ‘rule on services’, the prohibition at issue in the main proceedings must be ‘specifically’ aimed at Information Society services (see, to that effect, judgment of 12 September 2019, VG Media, C‑299/17, EU:C:2019:716, paragraph 31).
42In that regard, it follows from point (i) of the second subparagraph of Article 1(1)(e) of Directive 2015/1535 that the verification that a rule is specifically aimed at Information Society services must be carried out in the light of both the wording of that rule and the aim it pursues. Furthermore, under that provision, it is not required that ‘the specific aim and object’ of all of the rule in question be to regulate Information Society services, but it is sufficient that it pursue that aim or object by means of some of its provisions (see, to that effect, judgment of 12 September 2019, VG Media, C‑299/17, EU:C:2019:716, paragraph 32 and the case-law cited). Last, in accordance with point (ii) of the second subparagraph of Article 1(1)(e) of that directive, a rule is not to be considered to be specifically aimed at Information Society services if it affects such services only in an implicit or incidental manner.
43In the present case, as Unigames, the Lithuanian Government and the Commission emphasise in their respective written observations, it must be stated that Article 10(19) of the Law on gambling is specifically aimed at Information Society services. It is apparent from its very wording that that provision is expressly aimed at not only gambling in the traditional sense, but also remote gambling and providers of gambling services.
44Furthermore, contrary to what the Italian Government maintains in its written observations, the fact that Article 10(19) of the Law on gambling lays down a general prohibition on encouraging participation in gambling by all means, and not solely via the internet, cannot mean that that provision concerns Information Society services in an implicit or incidental manner, within the meaning of point (ii) of the second subparagraph of Article 1(1)(e) of Directive 2015/1535 (see, to that effect, judgment of 12 September 2019, VG Media, C‑299/17, EU:C:2019:716, paragraph 37 and the case-law cited).
45Consequently, it must be held that that Article 10(19) constitutes a ‘rule on services’ within the meaning of Article 1(1)(e) of Directive 2015/1535.
46That being so, in order to be classified as a ‘technical regulation’ within the meaning of Article 1(1)(f) of that directive, the national provision concerned must also correspond to the definition set out in that point (f) and thus it must be compulsory, de jure or de facto, in the case, inter alia, of the provision of the service in question or its use in a Member State or a major part of that State (see, to that effect, judgment of 3 December 2020, Star Taxi App, C‑62/19, EU:C:2020:980, paragraph 61).
47In that regard, it is apparent from the request for a preliminary ruling that Article 10(19) of the Law on gambling lays down a rule the observance of which is compulsory in the case of the provision of remote gambling services in Lithuania.
48It is the alleged infringement by Unigames of that Article 10(19), on account of the publication on its website of certain statements relating to the remote gambling activities offered by that company, that formed the basis for the order of 19 May 2022, by which the Supervisory Authority, inter alia, warned that company of the possible suspension of the licence authorising it to operate gambling activities.
49In the light of all the foregoing considerations, the answer to the first question is that Article 1(1)(f) of Directive 2015/1535 must be interpreted as meaning that national legislation that lays down a prohibition on encouraging participation in remote gambling by means of the publication of information relating to gambling on the website of a gambling operator constitutes a ‘technical regulation’ within the meaning of that provision.
The second question
50By its second question, the referring court asks, in essence, whether Article 5(1) of Directive 2015/1535 must be interpreted as meaning that, with regard to national legislation which constitutes a ‘technical regulation’, within the meaning of Article 1(1)(f) of that directive, and which has been notified to the Commission in accordance with that Article 5(1), an amendment to that legislation is unenforceable against economic operators where that amendment has not been notified.
51It follows from the first subparagraph of Article 5(1) of that directive that Member States are immediately to communicate to the Commission any draft technical regulation, except where it merely transposes the full text of an international or EU standard, and that they are also to let the Commission have a statement of the grounds which make the enactment of such a technical regulation necessary, where those grounds have not already been made clear in the draft.
52In that regard, it should be recalled that, as the referring court observes, the Court has held that, in order for new national legislation to be held to be a technical regulation having to be notified under Directive 2015/1535, it must not be limited to reproducing or replacing, without adding technical specifications or other new or additional requirements, existing technical regulations which have been duly notified to the Commission (see, to that effect, judgment of 20 December 2017, Falbert and Others, C‑255/16, EU:C:2017:983, paragraph 23 and the case-law cited).
53The Court has thus ruled that new legislation containing stricter technical specifications than those in earlier legislation that has been notified must, in turn, be notified (see, to that effect, judgment of 21 December 2023, Papier Mettler Italia, C‑86/22, EU:C:2023:1023, paragraph 50).
54Also, new legislation is subject to the notification obligation under Directive 2015/1535 inter alia where it extends the scope of the earlier legislation. On the other hand, it is not subject to that obligation where it merely refines or clarifies that earlier legislation (see, to that effect, judgment of 20 December 2017, Falbert and Others, C‑255/16, EU:C:2017:983, paragraphs 20 and 22).
55In the present case, the Lithuanian Government submits that Article 10(19) of the former Law on gambling, which had been duly notified to the Commission, already laid down a prohibition on encouraging participation in gambling, including remote gambling. According to that government, the changes made to that law are not significant, since they do not alter the rules already notified or their scope and, consequently, the conduct of which Unigames is accused would have been treated in a similar manner under the former Law on gambling.
56In that regard, it must be borne in mind that the assessment of the scope of such a legislative amendment is a question of national law falling within the jurisdiction of the referring court (see, to that effect, judgment of 20 December 2017, Falbert and Others, C‑255/16, EU:C:2017:983, paragraph 21 and the case-law cited).
57It is apparent from the request for a preliminary ruling that Article 10(19) of the Law on gambling ‘substantially revised’ the prohibition on encouraging participation in gambling. In particular, the referring court states that the conduct of which Unigames is accused on the basis of the law currently in force, consisting of the publication, on that company’s website, of information relating to the gambling activities offered by it, was not liable to be punished under the former Law on gambling. Therefore, according to the referring court, that Article 10(19) extended the scope of that prohibition.
58It thus follows from the information set out in the request for a preliminary ruling that Article 10(19) of the Law on gambling added new or additional requirements, within the meaning of the case-law referred to in paragraph 52 of the present judgment, in comparison with Article 10(19) of the former Law on gambling. It follows that, subject to any verifications which it is for the referring court to carry out, the amendment that gave rise to the law currently in force should have been notified under the first subparagraph of Article 5(1) of Directive 2015/1535.
59That conclusion is confirmed by the third subparagraph of that Article 5(1), which lays down the obligation to ‘communicate the draft technical regulation again’ where a Member State makes significant changes to such a draft that have the effect of altering its scope, shortening the timetable originally envisaged for implementation, adding specifications or requirements, or making the latter more restrictive.
60It is true that, as such, the third subparagraph of Article 5(1) of Directive 2015/1535 is not applicable to a situation such as that at issue in the main proceedings, since it relates only to the situation in which significant changes are made, during the national legislative procedure, to a draft technical regulation after that draft has been notified to the Commission (see, to that effect, judgment of 4 February 2016, Ince, C‑336/14, EU:C:2016:72, paragraph 79), and thus before that draft is definitively adopted.
61However, that third subparagraph of Article 5(1) confirms that, where, as in the present case, a significant change is made to a technical regulation already in force, and not before a draft technical regulation is definitively adopted, such a change, in particular where it has the effect of extending the scope of that technical regulation, must be notified separately (see, to that effect, judgment of 8 November 2007, Schwibbert, C‑20/05, EU:C:2007:652, paragraph 42).
62Last, according to settled case-law, a breach of the notification obligation laid down in the first subparagraph of Article 5(1) of Directive 2015/1535 constitutes a substantial procedural defect in the adoption of the technical regulations concerned and renders those technical regulations inapplicable, so that they are unenforceable against individuals. Those individuals may rely on that inapplicability before the national court, which must decline to apply a national technical regulation which has not been notified in accordance with that directive (see, to that effect, judgment of 22 October 2020, Sportingbet and Internet Opportunity Entertainment, C‑275/19, EU:C:2020:856, paragraph 53 and the case-law cited).
63In the light of all the foregoing considerations, the answer to the second question is that Article 5(1) of Directive 2015/1535 must be interpreted as meaning that, with regard to national legislation which constitutes a ‘technical regulation’, within the meaning of Article 1(1)(f) of that directive, and which has been notified to the Commission in accordance with that Article 5(1), an amendment to that legislation is unenforceable against economic operators where that amendment has not been notified and has the effect of extending the scope of that legislation, so that it constitutes a ‘technical regulation’ that is subject to the notification obligation laid down in the latter provision.
Costs
64Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
Operative part
On those grounds, the Court (Fifth Chamber) hereby rules:
1.Article 1(1)(f) of Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society servicesmust be interpreted as meaning that national legislation that lays down a prohibition on encouraging participation in remote gambling by means of the publication of information relating to gambling on the website of a gambling operator constitutes a ‘technical regulation’ within the meaning of that provision.
2.Article 5(1) of Directive 2015/1535must be interpreted as meaning that, with regard to national legislation which constitutes a ‘technical regulation’, within the meaning of Article 1(1)(f) of that directive, and which has been notified to the European Commission in accordance with that Article 5(1), an amendment to that legislation is unenforceable against economic operators where that amendment has not been notified and has the effect of extending the scope of that legislation, so that it constitutes a ‘technical regulation’ that is subject to the notification obligation laid down in the latter provision.
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