• In Case C-36/02 Omega Spielhallen [2004], the Court of Justice of the European Union (CJEU) determined that a prohibition of laser tag (or the setting up of a ‘laserdrome’) was justified and thus not contrary to Community law.

Facts of the case

  • The applicant company, Omega, were served a notice prohibiting them from setting up a ‘laserdrome’ by the authorities in Germany.
  • At the proposed laserdrome, customers would play ‘laser tag’, whereby they would target each other with lasers which looked like guns. The German authorities prohibited this, on the basis that it was contrary to public policy, and moreover the German Federal Administrative Court held that banning the game was compatible with the German ‘Basic Law’ article 1 (1) on ‘human dignity’.
  • The national court referred the issue to the CJEU to determine whether this was an impingement to the free movement of services and thus in contravention of Article 56 Treaty on the Functioning of the European Union.

Issues in Case C-36/02 Omega Spielhallen [2004]:

  • The fundamental issue in the case was whether European Community law precluded Member States from prohibiting games which simulated acts of homicide on grounds of protecting public policy

Held by the CJEU:

  • Community law does not preclude an economic activity consisting of games simulating acts of homicide from being prohibited by Member States on the grounds of protecting public policy and more specifically human dignity, however, in order to rely on such an argument, there needs to be no less intrusive measures able to be used.
  • The CJEU also held that Community law will ensure that individual Member States have a margin for discretion when it comes to public policy, as inevitably each Member State will have different values and ideas of public policy.

The CJEU specifically stated:

  • [34] “The Community legal order undeniably strives to ensure respect for human dignity as a general principle of law. There can therefore be no doubt that the objective of protecting human dignity is compatible with Community law, it being immaterial in that respect that, in Germany, the principle of respect for human dignity has a particular status as an independent fundamental right” [I-9653]
  • [35] “Since the Community and Member States are required to respect fundamental rights, the protection of those rights is a legitimate interest which, in principle, justifies a restriction of the obligations imposed by Community law, even under fundamental freedom guaranteed by the treaty, such as the freedom to provide services and goods” [I-9653]
  • [36] “However, 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 insofar as those objectives cannot be attained by less restrictive measures” [I-9653]

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