ANGEL VERSETTI

The Omega Case in the Context of the EU Law

Omega v. Bonn Police1 case raised the issue of compatibility of a local police order issued in

Germany against a private company with European Community Law, involving the issue of

subsidiarity, as well as other principles of EU Law such as human dignity and proportionality.

Omega was a German company opened on 01/08/1994 aiming at commercialization of

a UK-manufactured laser-gun game in an installation known as Laserdrome(3). Since it

involved players targeting each other, parts of community identified Laserdrome as “playing

at killing” people (4), which resulted in the police issuing an order against Omega on

14/09/1994 prohibiting its games under threat of fine of 10’000 DM per game (5). The order

claimed Omega simulated homicide, thus constituting danger to public order and fundamental

values of public opinion (7). By 27/09/2000, having exhausted all 3 appeals in lower courts

(District Authority, Administrative Court and Higher Bundesland [Federal State] Court) (8),

Omega appealed to the highest administrative court of Germany (FAC) alleging that the order

infringed Community Law (in particular Article 49 EC on freedom to provide services) (9).

FAC stated that fictitious violence for entertainment purposes amounted to violation of

human dignity, a key principle of the German Constitution (12) and thus on under national

law the appeal must be dismissed (10). FAC also acknowledged that the police order breached

Article 49 EC (freedom to provide services) and possibly Article 28 EC (free movement of

goods) (13). FAC thus referred the case to the ECJ asking if prohibiting particular services

and goods (in this case laser-guns and Laserdrome installation) under national law due to their

offense against the constitutional values, was compatible with the provisions of Articles 28

and 49 of the EC Treaty (17).

The principle of subsidiarity is enshrined in Article 5 of the Treaty of EU, requiring

action from the EC institutions only if national action is insufficient in accomplishing the

objectives of the proposed action. Subsidiarity thus was inherent in the ECJ’s reasoning of

1
Omega Spielhallen-und Automatenaustellungs GmbH v Oberbürgermeisterin der Bundesstadt Bonn, ECJ, 2004
 ANGEL VERSETTI

this case, as Omega alleged that German state interfered in economic freedoms of the EC

market. Furthermore, Omega questioned the German courts’ adherence to the principle of

proportionality established by the EC Treaty, since identical services were legally provided in

the UK, another Member State, yet prohibited in Germany (14). The Omega case thus

exposed a conflict between two legal systems co-existing in the EU.

Subsidiarity, whilst threatening authority of Member States’ individual legal systems,

at the same time also depends on their legal traditions, and the ECJ’s ruling to the Omega case

confirms this: a national prohibition measure on an economic activity on grounds of

protecting public policy and human dignity is not precluded by the Community Law (41).

Thus in the legal reasoning of the Omega case, a strong argument is made for

subsidiarity in consideration of laws and legal measures that affect the values of the society of

an EU Member State. However, the ECJ’s final ruling seeks to establish its own authority in

all matters related to the internal market, despite the acknowledged ability of the German

courts (or any other EU-member state’s courts) to sufficiently achieve the objectives of the

actions proposed in the case, the protection of human dignity. Thus the reasoning in Omega

case provides a basis for an argument in defence of the principle of subsidiarity while

subordinating the same argument to the final authority of the ECJ.

EU Law, through the principle of subsidiarity attempts to protect legal parties under

both national and EU legal systems. However, in this two-tier system, divisions of

competences between the EU and individual Member States are unclear and the jurisdictions

of different courts overlap, resulting in courts’ rivalry for authority. The Omega Case exposes

the structural complexity and inefficiency of the EU legal system: unclear areas of courts’

influence, conflicts between legal systems of EU Member States, rivalry between national

courts and supra-national legal institutions of the EU. Instead of attempting to address these

inefficiencies, the ECJ’s decision exacerbates them by reasserting its supreme authority to

rule on all matters related to the European Community’s domestic economic interactions.