Information;Judgment — ECLI:EU:C:2023:219
Date: 2023-03-16
Language of the case: Italian
Court formation: Ninth Chamber
Subject matter: Competition;Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Italy

Summary C-517/20 – 1 
Case C-517/20 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
13 October 2020 
Referring court:  
Tribunale di Ascoli Piceno (Italy) 
Date of the decision to refer: 
29 September 2020 
Criminal proceedings against: 
OL 
  
Subject matter of the main proceedings 
Criminal proceedings brought against OL for failure to comply with the Italian 
legislation governing the activity of collecting bets. 
Subject matter and legal basis of the request 
Pursuant to the second paragraph of Article 267 TFEU, the interpretation is sought 
of Directive 2014/24/EU, the principles of freedom of establishment, non-
discrimination and safeguarding of competition, and of Articles 49, 56 and 106 
TFEU, in order to determine whether they preclude national legislation that 
provides for a general extension ‘sine die’ – in the absence of a new invitation to 
tender for licences for the pursuit of betting and gaming activities which the State 
should have launched in order to comply with the case-law of the Court of 
Justice – for operators who have already obtained a licence as a result of previous 
invitations to tender or because of the regularisation, given that those licences had 
been due to expire in June 2016. 
Questions referred for a preliminary ruling 
1. Do the principles of freedom of establishment, non-discrimination and 
safeguarding of competition laid down in Articles 49, 56 and 106 TFEU, and 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-517/20 
 
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the precept of reasonableness implicit therein, preclude national legislation 
which, as a result of a national provision or act having the force of law, has 
the effect of extending existing licences and other collection rights, issued 
by means of invitations to tender or a regularisation procedure (without a 
tender), the normal deadline for which had already been set for June 2016? 
2. Do Articles 49, 56 and 106 TFEU preclude national legislation which, by 
means of the direct-award mechanism, implemented via an extension, not 
preceded by an invitation to tender, unduly seals off a national market? 
3. Do Articles 49, 56 and 106 TFEU preclude national legislation which, in the 
absence of a new tendering procedure, recognises all licences already 
declared unlawful by successive rulings of the Court of Justice of the 
European Union as valid in the national market, thereby preventing the entry 
of new foreign operators? 
Provisions of European Union law relied on 
Directive 2014/24/EU of the European Parliament and of the Council of 
26 February 2014 on public procurement and repealing Directive 2004/18/EC 
Articles 49, 56 and 106 TFEU  
Freedom of establishment 
Principles of equal treatment, non-discrimination and safeguarding of competition 
Provisions of national law relied on 
Article 1(643) of Legge del 23 dicembre 2014, n. 190 – Disposizioni per la 
formazione del bilancio annuale e pluriennale dello Stato (Law No 190 of 
23 December 2014 – Rules for establishing the annual and multiannual State 
budget) (‘Legge stabilità per il 2015’ (‘2015 Stability Law’)) 
Article 1(926) of Legge del 28 dicembre 2015, n. 208 – Disposizioni per la 
formazione del bilancio annuale e pluriennale dello Stato (Law No 208 of 
28 December 2015 – Rules for establishing the annual and multiannual State 
budget) (‘Legge stabilità per il 2016’ (‘2016 Stability Law’)) 
Circolare dell’Agenzia delle Dogane e dei Monopoli del 9 giugno 2016 (Circular 
of the Italian Customs and Monopolies Agency of 9 June 2016) 
Article 88 of Regio Decreto 18 giugno 1931, n. 773, Testo Unico delle Leggi di 
Pubblica Sicurezza (Royal Decree No 773 of 18 June 1931 approving a single text 
of the laws on public security) 
OL 
 
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Article 4 of Legge 13 dicembre 1989, n. 401 – Interventi nel settore del giuoco e 
delle scommesse clandestini e tutela della correttezza nello svolgimento di 
manifestazioni sportive (Law No 401 of 13 December 1989 on gaming, 
clandestine betting and the lawful organisation of sporting events 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 21 September 2016, criminal proceedings were brought before the referring 
court against OL – the owner of a data transmission centre (‘DTC’) – who was 
charged with pursuing an organised activity for the collection of bets on behalf of 
a foreign operator (the Austrian company Ulisse GmbH) without the necessary 
licence and police authorisation required in Italy. 
2 Counsel for OL contended that the accused person should be acquitted, raising 
doubts as to whether the applicable national legislation on the granting of licences 
for the operation of gaming or betting activities is compatible with EU law, both 
with regard to the principles governing public procurement under Directive 
2014/24/EU, and with regard to the freedom of establishment, free movement of 
services, safeguarding of competition and non-discrimination. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
3 In order to provide the reasons for its request for a preliminary ruling, the 
referring court begins with a reconstruction of legislative and case-law 
developments in the matter. 
4 In Italy, the organising of games of chance, including the online collection of bets 
taken by any person in Italy or abroad, is reserved in principle for the State. A 
licence must be obtained from the State before police authorisation is then applied 
for. 
5 Under Article 4(4-bis) of Law No 401/1989, it is an offence to engage in such 
activities in the absence of the abovementioned licences. This is therefore a 
‘blank’ criminal-law provision, since the constituent elements of the offence 
depend on the licensing regulations applicable ‘ratione temporis’.  
The 1999, 2006 and 2012 invitations to tender and EU and national case-law 
6 The three invitations to tender for the award of such licences held to date by the 
Italian Government, in 1999 (‘the 329 Agenzie Ippiche Storiche tender’), in 2006 
(‘the Bersani invitation to tender’) and in 2012 (‘the Monti invitation to tender’), 
respectively, were declared contrary to several principles of EU law, in particular 
in the judgments of the Court of Justice of 6 November 2003, Gambelli and 
Others (Case C-243/01); of 6 March 2007, Placanica and Others (Case 
C-338/04); and of 16 February 2012, Costa and Cifone (Joined Cases C-72/10 and 
C-77/10). 
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7 First, with regard to the 1999 invitation to tender, the Court of Justice held that the 
criminal-law provision contained in Article 4 of Law No 401/1989 amounted to a 
restriction on the freedom of establishment and the freedom to provide services, 
but that it was for the national court to determine whether, taking account of the 
detailed rules for its application, it actually served the aims which might justify it, 
and whether the restrictions it imposed were disproportionate in the light of those 
aims (judgment of 6 November 2003, Gambelli and Others, Case C-243/01). 
8 Subsequently, the Corte di Cassazione (Court of Cassation, Italy) confirmed that 
that criminal-law provision was not incompatible with the principles of EU law, as 
its aim was to exercise control on grounds of public policy, which justified a 
restriction of those principles. 
9 The Court of Justice later found that, by limiting access to the organising of bets 
to licence holders only, the Italian legislation was effectively pursuing an 
economic interest rather than seeking to safeguard public policy. Nevertheless, the 
Court formally left it to the national court to determine whether the national 
licensing system contributed to public-policy objectives (judgment of 6 March 
2007, Placanica and Others, Case C-338/04). 
10 Abandoning its previously adopted position, the Court of Cassation has since 
upheld the principle that criminal penalties cannot be imposed on persons who 
have pursued, without authorisation, the activity of collecting bets, where it is 
established that such persons were acting on behalf of companies which, in the 
Member State in which they are established, lawfully pursue that activity, having 
obtained the necessary authorisation, even if they are not licensed in Italy because 
they did not or could not participate in the relevant invitation to tender in view of 
the restrictions imposed by the law in force. 
11 Second, with regard to the ‘Bersani invitation to tender’ provided for by decreto 
legge 4 luglio 2006, n. 223 (Decree-Law No 223 of 4 July 2006 (converted by 
legge 4 agosto 2006, n. 248 (Law No 248 of 4 August 2006)), in order to open up 
the market to new operators by means of a new invitation to tender for the award 
of licences, the Court of Justice found that that invitation to tender infringed EU 
law, in so far as it protected the commercial position of existing operators by 
imposing a minimum distance between the establishments of new licence holders 
and those of existing operators (judgment of 16 February 2012, Costa and Cifone, 
Joined Cases C-72/10 and C-77/10; similarly, judgment of 12 September 2013, 
Biasci and Others, Joined Cases C-660/11 and C-8/12). 
The Court of Cassation in turn confirmed that the betting and gaming sector was 
overregulated in Italy, creating objective and subjective barriers to the pursuit of 
such activity, and that the rules were liable to hinder the full implementation of 
the principles enshrined in EU law in the matter of freedom of establishment and 
protection of competition. Such a restriction, however, is justified on grounds of 
public policy provided that it is proportionate, transparent and does not 
discriminate against entities from other Member States. 
OL 
 
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12 Third, decreto legge 2 marzo 2012, n. 16 (Decree-Law No 16 of 2 March 2012), 
converted into legge n. 44/2012 (Law No 44/2012), provided for a new invitation 
to tender for licensing purposes (‘the Monti invitation to tender’). This allowed 
the participation of persons who pursue the activity of collecting bets in one of the 
Member States of the European Economic Area where they have their registered 
office or principal place of business, on the basis of permits issued in accordance 
with the legal provisions in force in the relevant Member State, and who meet the 
integrity, reliability and financial criteria defined by the Italian Customs and 
Monopolies Agency. 
13 Following that invitation to tender, 2 000 licences, expiring on 1 July 2016, were 
obtained by Lottomatica, Snai, Cogetech, Hbg, Sisal, Codere, Cirsa, Matica and B 
Plus Gioco Legale Limited. 
The regularisation 
14 The Italian legislature, by means of Article 1(643) of the 2015 Stability Law and 
Article 1(926) of the 2016 Stability Law, introduced a regularisation arrangement 
under which establishments which, as at 30 October 2014, collected bets on behalf 
of foreign bookmakers without having an Italian licence or police authorisation 
could regularise their activities, provided that: 
– they agreed to full tax regularisation by paying the single tax due; 
– they provided the Italian Customs and Monopolies Agency with the details of 
the owner of the DTC linked to the applicant bookmaker by completing a 
special form (‘Annex C’), which would be treated as an application for police 
authorisation. 
15 The operators applying for such regularisation would be entitled to pursue gaming 
or betting activities until the deadline of 30 June 2016. 
Failure to launch a new invitation to tender and the general extension ‘sine die’ 
16 Article 1(932) of Law No 208/2015 required all licences for the collection of bets 
on sporting events to be awarded by means of a new invitation to tender to be 
launched on 1 May 2016. 
17 However, the invitation to tender was not launched at the time planned. 
Consequently, on 9 June 2016, the Italian Customs and Monopolies Agency 
issued a circular authorising the continuation ‘sine die’ of the activity of collecting 
bets by all parties already authorised (following previous national invitations to 
tender or as a result of the regularisation). 
The position of the accused person OL 
18 The DTC owned by OL is linked to the Austrian operator Ulisse GmbH. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-517/20 
 
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19 Ulisse GmbH is validly incorporated and authorised to exercise gaming or betting 
activities under Austrian law. It is taxed and audited by the Austrian Government. 
Therefore, that company believes that it meets all the requirements for financial 
stability, reliability, professionalism and public safety provided for under EU 
legislation and case-law and the legislation of the Member States, including Italy, 
as mentioned earlier. 
20 In letters dated 30 November 2016 and 6 February 2017 sent to the Italian 
Customs and Monopolies Agency, Ulisse GmbH, declaring that it wished to 
exercise its freedom of establishment, requested to be allowed to pursue its 
activities in the Italian domestic market. 
In those letters, it pointed out that all the licences existing in 2016 (including those 
resulting from the regularisation procedure under Law No 190/2014 and Law 
No 208/2015) had expired, ope legis and without exception, on 30 June 2016. It 
also claimed to have been seriously disadvantaged by the failure of the competent 
Italian authorities to issue an invitation to tender for the award of new licences for 
the pursuit of gaming or betting activities, which, under Article 1(932) of Law 
No 208/2015, was mandatory and should have taken place from 1 May 2016 
onwards. 
21 The Italian Customs and Monopolies Agency responded by refusing to allow 
Ulisse GmbH to become established and pursue its activity in Italy. It justified its 
decision on the grounds that this option was reserved exclusively for operators 
who had already obtained a licence following a public invitation to tender or as a 
result of the regularisation procedure, and whose licence was still valid due to the 
general extension introduced by the Circular of 9 June 2016. 
22 As a result of that refusal, OL finds itself – unfairly, in the opinion of the 
defence – facing prosecution, charged with having operated its DTC without a 
licence and without the relevant police authorisation required in Italy. 
The questions referred for a preliminary ruling 
23 The referring court accepts the arguments of the defence and finds that the actions 
of the Italian Customs and Monopolies Agency appear discriminatory against the 
Austrian operator Ulisse GmbH and potentially detrimental to the freedom of 
establishment, the safeguarding of competition and the rules on public 
procurement. 
24 First, the referring court has doubts as to the compatibility of EU law with the 
general extension ‘sine die’ of the pursuit of gaming and betting activities granted 
to operators who had been authorised to operate until the deadline of 30 June 
2016. The Italian Customs and Monopolies Agency had granted that extension 
after acknowledging the failure to launch the invitation to tender for new licences, 
which the Italian State ought to have launched in order to comply with the case-
OL 
 
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law of the Court of Justice and with EU law. Those doubts are submitted to the 
Court by means of the first question referred for a preliminary ruling. 
25 In addition, with regard to operators licensed under previous invitations to tender, 
which the Court of Justice has held, in the abovementioned judgments, to be 
incompatible with EU law, such an extension amounts to the direct award of a 
service, contrary to the principles on public procurement set out in Directive 
2014/24/EU. Those doubts are the subject of the second question referred for a 
preliminary ruling. 
26 Lastly, the requirements referred to in the abovementioned circular on the 
contested extension, particularly those of a fiscal and employment nature, do not 
constitute overriding reasons in the general interest justifying the restriction of a 
fundamental freedom guaranteed by the Treaty, such as the freedom of 
establishment of new foreign operators. Those doubts are expressed by the third 
question referred for a preliminary ruling.