Information;Order — ECLI:EU:C:2022:53
Date: 2022-01-10
Language of the case: Italian
Court formation: Ninth Chamber
Subject matter: Competition;Agreements, decisions and concerted practices;Right of establishment;Principles, objectives and tasks of the Treaties;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Italy

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:  
17 September 2020 
Referring court:  
Tribunale di Parma (Italy) 
Date of the decision to refer:  
8 November 2019 
Criminal proceedings against:  
ZI 
TQ 
  
Subject matter of the action in the main proceedings 
Criminal proceedings brought against ZI and TQ 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 on public procurement, the principles of freedom of 
establishment, non-discrimination and safeguarding of competition, and of 
Articles 49, 52, 56 and 106 TFEU, in order to determine whether they preclude 
rules of national law involving:  
– an extremely tight deadline for the completion of administrative and tax 
formalities in order to qualify for the ‘regularisation’ provided for operators 
pursuing the activity of collecting bets on behalf of foreign bookmakers 
without the necessary licences and authorisations;  
– 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 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-437/20 
 
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operators who have already obtained a licence as a result of previous 
invitations to tender or because of the regularisation. 
Questions referred 
(1) Does the EU law enshrined in the provisions of Directive 2014/24/EU on 
procurement and also applicable to the ‘betting and gaming’ sector preclude the 
extension of licences already awarded under previous invitations to tender 
declared unlawful by the Court of Justice of the European Union, granted by the 
Italian legislature through the Agenzia delle Dogane e dei Monopoli (Italian 
Customs and Monopolies Agency) by means of Circolare 9 giugno 2016 (Circular 
of 9 June 2016)? 
(2) Do the principles of freedom of establishment, non-discrimination and 
safeguarding of competition laid down in Articles 49, 56 and 106 TFEU preclude 
national legislation which – in the absence of any tendering procedure and by 
means of the direct-award mechanism, implemented via an endogenous 
administrative organisational measure – seals off a national market with an 
extension ‘sine die’ of previous licences issued by means of invitations to tender, 
the normal deadline for the expiry of which had already been set for 30 June 
2016? 
(3) Do the rights enshrined in Articles 49, 52 and 106 TFEU preclude 
Article 1(926) and (932) of Legge 208/2015 (Law 208/2015) by reason of the 
wholly inadequate and thus unjustifiably restrictive time limits imposed for the 
fulfilment of the administrative and financial obligations resulting from the 
application submitted by the company Phoenix International Ltd for 900 licences? 
(4) Do Articles 49, 56 and 106 TFEU preclude national legislation amended by 
the Circular of 9 June 2016 which, by failing to set a firm deadline, recognises all 
licences – including those 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 or the emergence and expansion of 
existing operators such as Phoenix International Ltd? 
(5) Do the principles of equality, equal treatment and non-discrimination set out 
in Articles 2 and 3 TEU and in Article 10 TFEU preclude the admission, after the 
deadline of 30 June 2016 set by legge di stabilità n. 208/2015 (Stability Law 
No 208/2015), of only three new centres, while excluding the remaining 847? 
Provisions of EU law cited 
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 
ZI AND TQ  
 
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Articles 49, 52, 56 and 57 TFEU – freedom to provide services and right of 
establishment within the European Union 
Principles of equal treatment, non-discrimination and safeguarding of competition 
Provisions of national law cited 
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 (Law No 208 of 
28 December 2015) – Rules for establishing the annual and multiannual State 
budget (‘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) 
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) 
Outline of the facts and the main proceedings 
1 On 12 January 2016, criminal proceedings were brought before the referring court 
(Tribunale di Parma) (District Court, Parma, Italy) against ZI and TQ – the owner 
and employee, respectively, of a data transmission centre (‘DTC’) – who were 
charged with pursuing an organised activity for the collection of bets on behalf of 
a foreign operator without the necessary licence and police authorisation required 
in Italy. 
2 Counsel for ZI and TQ contended that the accused persons 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.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-437/20 
 
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Succinct presentation of the reasons for 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, 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 (Joined Cases C-338/04, C-359/04 and C-360/04); and of 
16 February 2012, Costa and Cifone (Joined Cases C-72/10 and C-77/10). 
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 aims which might justify it, and 
whether the restrictions which 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 of Justice 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, Joined Cases C-338/04, C-359/04 and 
C-360/04).  
ZI AND TQ  
 
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10 Abandoning its previously adopted position, the Corte di Cassazione 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 Corte di Cassazione 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. 
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 licences issued in accordance 
with the legal provisions in force in the relevant 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, partly in order to address the shortcomings of the Monti 
invitation to tender pointed out by the Court of Justice, introduced, by means of 
legge n. 190/2014 (Law No 190/2014) (the ‘2015 Stability Law’), Article 1(643), 
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and legge n. 208/2015 (Law No 208/2015) (the ‘2016 Stability Law’), 
Article 1(926), a regularisation arrangement under which establishments which, as 
of 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 made a payment on account of EUR 10 000 for each DTC for which the 
regularisation was requested, payable by 31 January 2016; 
– they provided the Italian Customs and Monopolies Agency with the personal 
and business 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 1 July 2016, and any notices of 
assessment and penalty notices previously issued would be cancelled. 
Failure to launch a new invitation to tender and the general extension ‘sine die’ 
16 The date of 1 July 2016, according to the system proposed by the legislature, 
should have represented a ‘watershed’ between a system partly incompatible with 
EU law and a new system in which access to the market would be in accordance 
with EU law. 
17 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, on the basis of an ‘open, competitive and non-
discriminatory procedure’. 
18 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 addressed to all licence holders and network owners authorising, 
in the interests of public policy, tax revenue and continued employment, 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 
amnesty). 
The position of the accused persons ZI and TQ 
19 The DTC of which ZI and TQ are, respectively, owner and employee is linked to 
the Maltese operator Phoenix International Ltd. 
ZI AND TQ  
 
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20 Phoenix International Ltd applied for regularisation. However, by the deadline of 
31 January 2016, it had only been able to make the payments and declarations 
referred to in Annex C for 50 of the 900 DTCs that needed to be regularised. 
21 Having been unable to regularise the remaining 850 DTCs, on 31 January 2016 it 
requested and obtained from the Italian Customs and Monopolies Agency a period 
of 60 days in which to do so. On 31 March 2016, Phoenix International Ltd 
submitted the Annexes C containing the details of the remaining 850 DTCs, but 
without making the corresponding payments necessary to qualify for 
regularisation. A few months later (around mid-June 2016), the company arranged 
payment for three DTCs, which were added to the list of the 50 already 
authorised. Ultimately, therefore, 847 DTCs did not secure regularisation. 
22 The accused persons argue before the referring court that the regularisation 
procedure was actually a barrier to accessing the market, since the Italian Customs 
and Monopolies Agency did not issue the implementing provisions laid down in 
Article 1(926) of Law No 208 of 28 December 2015 until 15 January 2016, and 
yet, despite this, it did not change the deadline by which the formalities had to be 
completed, which the law had set for 31 January 2016. Therefore, Phoenix 
International Ltd had only 15 days in which to complete the procedure for the 900 
DTCs linked to it, and succeeded in doing so for only a handful of them. 
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 
Maltese operator Phoenix International Ltd and potentially detrimental to the 
freedom of establishment, the safeguarding of competition and the rules on public 
procurement, for two reasons. 
24 First, due to the tight deadline for participating in the 2016 regularisation, which is 
the subject of the third and fifth questions referred for a preliminary ruling. 
25 Such a deadline is incompatible with EU law, and in particular with the guidance 
contained in various judgments of the Court of Justice as to the non-
discriminatory nature that any procedure for extending existing licences must have 
(see, inter alia, judgment of 13 September 2007, C-260/04, Commission v Italy, 
paragraph 29). 
26 Second, due to the general extension ‘sine die’ of the pursuit of betting and 
gaming activities granted to operators who had been authorised – following 
previous national invitations to tender or by participating in the regularisation – 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 State ought to have launched in 
order to comply with the case-law of the Court of Justice and with EU law, which 
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is the subject of the first, second and fourth questions referred for a preliminary 
ruling.  
27 With regard to operators licensed under previous invitations to tender, which the 
Court of Justice has held to be incompatible with EU law in the abovementioned 
judgments, 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. 
28 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.