Judgment — ECLI:EU:C:2012:80
Date: 2012-02-16
Language of the case: Italian
Court formation: Fourth Chamber
Subject matter: Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

summary, therefore, it is appropriate to state that national legislation which expressly and effectively entrenches a general tendency ‘to protect holders of licences issued at an earlier period on the basis of a procedure that unlawfully excluded some operators’ could constitute an unjustified restriction of the freedoms enshrined in the Treaty. In the case of Italy, in particular, the provision concerned (Article 38(2) and 4(l) of the Bersani Decree) is worded somewhat cryptically. The determination of its scope falls exclusively to the Italian court, which is the only court with jurisdiction to interpret national law. 59. In addition, in the absence of further details provided by the referring court, it is necessary to examine separately in the cases under consideration the rules on minimum distances and the grounds for withdrawal, which could be specific expressions of the alleged general tendency to protect pre-existing licence holders. 3. The rules on minimum distances imposed on new licence holders 60. The Corte Suprema di Cassazione also questions whether provisions which ‘in fact ensure the maintenance of market positions acquired on the basis of a procedure that unlawfully excluded certain operators’ are compatible with EU law, referring by way of example to the fact that the provisions prohibit new licensees from locating their outlets within less than a specified distance from those already in existence. 61. The Bersani Decree imposed a system of minimum distances between betting and gaming outlets, which was repealed by Decree-Law No 149 of 25 September 2008. (32) In accordance with Article 38(2)(f) and (g) of the Bersani Decree, public gaming points had to be located at a minimum distance from ‘those in respect of which a licence has already been awarded’. (33) In the case of outlets where the marketing of betting is ancillary, that provision added that those distances had to be observed ‘without prejudice to outlets where, as at 30 June 2006, sports-based pool bets were collected’. (34) 62. As justification for the measure, the Italian Government claims that it is aimed at ensuring the uniform distribution of betting outlets throughout the national territory in order to prevent the doubly harmful outcome which the accumulation of betting establishments in certain locations might have for consumers: for those who live close to such locations, exposure to excess supply; for those who live in the most ‘poorly supplied’ areas, the risk of opting for clandestine betting or gaming. The Italian Government therefore refers indirectly to a twofold public interest objective: (i) the fight against gambling addiction and (ii) the fight against criminality and fraud in the sector. 63. As already stated, it is hardly convincing to plead the fight against gambling addiction in relation to Italy, which has a ‘policy of expanding activity in the betting and gaming sector’. (35) In my opinion, it is not possible to apply by analogy the reasoning in Blanco Pérez and Chao Gómez, (36) in which the Court held that certain rules on minimum distances between pharmacies were compatible with Article 49 TFEU because they were justified by imperative requirements relating to the protection of public health. (37) Although the arguments of the Italian Government appear to be based on a number of points from that judgment, (38) it is not appropriate here to rely on overriding reasons in the public interest relating to public health (in particular, the fight against gambling addiction), for the reasons set out above. 64. There remains the justification based on the fight against criminal and fraudulent activities in the betting and gaming sector, which — as I have already stated — also constitutes a public interest objective capable of justifying restrictions of the freedoms laid down in the Treaty. To my mind, however, the system of minimum distances between betting outlets has little connection with that objective. 65. Although the existence of a sufficiently wide, attractive and well-publicised supply of lawful betting and gaming opportunities is capable of contributing to the fight against criminality in the sector, the uniform distribution of that supply throughout the national territory does not, from the point of view of proportionality, appear to constitute an essential mechanism for the prevention of fraud and unlawful activities in the sector. 66. While it is true that, in the absence of compulsory rules on minimum distances, there is a likelihood that a significant proportion of outlets will be concentrated in the most populated or the most commercially active areas of national territory, it is appropriate to treat with a certain amount of scepticism the claim that that situation would lead a significant number of gamblers who reside in areas where there is limited or even no supply to opt for unlawful operators. Conversely, the uniform distribution, from a territorial point of view, of the lawful supply of betting and gaming does not appear to be a sufficient means of preventing certain gamblers from having recourse to unlawful operators. 67. It should be recalled that the rules on minimum distances were imposed exclusively on new licence holders in relation to pre-existing licence holders, which tends to confirm the view, expressed in the question referred, that the rules on minimum distances may be aimed at maintaining the ‘market positions’ of pre-existing licence holders, by guaranteeing them, in practice, a certain competitive advantage over those which did not have access to the market until the 2006 tendering procedures and which might be obliged to establish themselves in less commercially attractive locations than those occupied by pre-existing licence holders. That raises doubts as to whether the measure is consistent with the objective of combating criminality invoked by the Italian Government. 68. As was made clear in Attanasio Group, (39) which concerned the Italian rules on minimum distances between roadside service stations, by hindering the market access of new operators, a measure of that kind ‘appears instead to favour the position of operators already present on Italian territory, without consumers obtaining any real benefits’. In short, the measure appears to pursue a purely economic objective which, as already indicated, may not, under any circumstances, constitute an overriding reason in the public interest, within the meaning of the case‑law. (40) 69. In summary, Articles 49 TFEU and 53 TFEU preclude national legislation which in fact ensures the maintenance of market positions acquired under a procedure which unlawfully excluded certain operators; in particular, they preclude the prohibition on new licensees locating their outlets within less than a specified distance from those already in existence. 4. The rules on the withdrawal of licences a) Withdrawal because of the marketing, ‘on Italian territory or by means of data transfer sites located outside the national territory’, games analogous to public games or games which are prohibited (Article 23(3) of the model contract with licence holders) 70. Lastly, the Corte Suprema di Cassazione asks the Court whether the Italian rules on the withdrawal of betting or gaming licences (which also entails forfeiture of the guarantee) are lawful, referring specifically to ‘the case in which the licensee directly or indirectly carries on cross-border gaming activities analogous to those under the licence’. 71. It is possible to infer that, in that way, the Italian court is referring to the ground for withdrawal provided for under Article 23(3) of the model contract intended to govern future licences. In accordance with that provision, a licence is to be withdrawn ‘where the licensee markets, either itself or through a company linked to it — whatever the nature of that link — on Italian territory or by means of data transmission sites located outside Italian territory, games analogous to public games or to other games operated by the AAMS, or games which are prohibited under Italian law’. 72. Although, in accordance with case‑law, it is exclusively for the referring court to determine, in the cases before it, the correct interpretation of national law, (41) the grey areas in both the wording of the provision at issue and, in that regard, in the orders for reference themselves oblige me to envisage two possible alternative interpretations of Article 23(3). (42) i) First possibility: withdrawal as a result of cross-border activity 73. According to the first possible interpretation, by referring to the marketing of certain games ‘by means of data transmission sites located outside Italian territory’, the provision is intended to preclude all cross-border betting and gaming, in particular the activities engaged in by Stanley through its DTCs. 74. That is the interpretation which appears to be favoured by Mr Costa, Mr Cifone and the Corte Suprema de Cassazione, and it is also the interpretation which may be inferred from a large number of judgments from national courts. (43) Such an interpretation is also supported by the correspondence between the AAMS and Stanley at the time of the 2006 calls for tenders. 75. Thus, when asked by Stanley whether ‘the activity which Stanley carries on directly or indirectly through the DTCs affiliated to it, [was] considered by the AAMS to infringe the principles and the provisions set out in the tender documents (in particular, Article 23 of the model contract)’, the AAMS replied, by letter of 6 October 2006, that participation in the tendering procedures was conditional on the cessation, in Italy, of cross-border activities. The AAMS stated in particular that the new system would make it possible for successful tenderers ‘to create sales networks which, according to an independent assessment, could also extend nationwide’, and explained that those networks ‘obviously tended to replace any old networks and, in those circumstances, the provisions under Article 23 of the model contract constitute[d] appropriate protection of the investments made by those licence holders’. 76. In addition to the fact that that reply is extremely vague, the impression that Stanley’s business model (which involves a cross-border activity using data transfer), or at least its current network of distributors, did not satisfy the conditions for the grant of the new licences had the effect of dissuading it from participating in the tendering procedures. 77. If the Corte Suprema di Cassazione considers that, under Article 23(3) of the model contract, a licence will automatically be withdrawn simply because the betting or gaming activity concerned is operated on a cross-border basis, it must find that the measure constitutes a restriction of the freedom of establishment and the freedom to provide services, to which I must add that the justification based on the fight against fraud and criminality in the sector seems to me to be extremely contrived. 78. Certainly, in Liga Portuguesa, the Court afforded Member States considerable latitude in relation to games of chance offered over the internet. (44) However, that reasoning cannot be transposed to this case, in which, if the present hypothesis is correct, it is not the control of gaming over the internet which is at issue but rather the prohibition of all cross-border activity in the betting and gaming sector. In the cases before the referring court, in particular, the legislation at issue might impede an activity which, albeit cross-border in nature, does not amount to internet gambling in the strict sense because it also involves the physical presence of a representative of the undertaking on Italian territory. 79. In principle, therefore, the activity at issue here does not display the main characteristic of internet gambling, on which the Court based all its reasoning in Liga Portuguesa: in other words, ‘the lack of direct contact between consumer and operator’. Not all cross-border activity necessarily precludes such contact; in so far as it is possible to guarantee such physical, direct contact with an intermediary or representative of the undertaking, the specific risks of internet gambling referred to do not arise here and cannot, therefore, justify the measure in question. 80. In addition, it should be borne in mind that, in Liga Portuguesa, all that reasoning was directed at putting an end to the requirement of mutual recognition of gaming licences. (45) Mutual recognition was accordingly excluded in relation to the internet gambling sector in Liga Portuguesa, and generally, in very clear terms, in relation to the entire betting and gaming sector in Stoß. (46) 81. In the cases currently under consideration, however, if that first interpretation were accepted, the restriction imposed would go much further than requiring foreign operators to undergo checks by national authorities in order to engage in a betting or gaming activity. Purely and simply, such operators would be prohibited from participating in the betting and gaming market solely because their principal place of establishment is in another Member State and the legal transaction concluded with customers is cross-border in nature, despite the fact that it would be possible to carry out a police check on any representatives who were permanently present on national territory. 82. In summary, I believe that national legislation which in fact precludes all cross-border activity in the betting and gaming sector, regardless of the form in which that activity is undertaken and, in particular, in cases where there is the possibility of direct contact between consumer and operator and where physical checks for police purposes can be made of an undertaking’s intermediaries who are present on national territory, is contrary to Articles 49 TFEU and 56 TFEU. ii) Second possibility: withdrawal of a licence because of offering unauthorised betting or gaming 83. An alternative interpretation of Article 23(3) of the model contract is that the provision is intended, above all, to prohibit a variety of types of gaming, regardless of whether they are offered on a cross-border basis (‘by means of data transmission sites located outside Italian territory’) or directly ‘on Italian territory’. More specifically, under Article 23(3), games the offer of which results in the withdrawal of a licence are ‘games analogous to public games or to other games operated by the AAMS, or games which are prohibited in Italy’. First and foremost, attention should be drawn to the considerable imprecision of that wording, in contrast to the seriousness of its consequences. 84. The Commission and Mr Costa have provided information which enables some light to be shed on this matter. Both have referred to the existence of a catalogue or list of games drawn up and updated weekly by the AAMS, which delimits the operational scope of licences with the result that licence holders may offer only the games which are on that list, while the offer of games which are not on the list triggers withdrawal of a licence. (47) I will therefore attempt, in proposing an answer to the question from the referring court, to take that information into consideration. 85. In Stoβ, the Court acknowledged that, given the significant differences which the various types of games of chance can exhibit, national legislation which makes certain types of games subject to stricter rules, or even prohibits certain types while authorising others, may be compatible with the Treaty. (48) In any event, it will of course be necessary for the measure in question to be non-discriminatory and to contribute in a coherent, systematic and proportionate manner to the achievement of the public interest objective at which it is aimed: in this case, the fight against fraud and the spread of illicit gaming. 86. As regards the cases under consideration, it should be pointed out that, in principle, the list may be adapted to the needs of operators. Licence holders may ask the AAMS to place certain games on the list, although apparently such a decision lies within the discretion of the authority. 87. The administrative decision to place a particular game on the list undeniably constitutes a prior administrative authorisation which restricts the freedoms laid down in the Treaty but which, in accordance with case‑law, may be justified provided that it is based on objective, non-discriminatory criteria and is open to a judicial remedy. (49) The parties agreed at the hearing that there is a right of appeal against the decision of the AAMS, but it is not possible to conclude clearly from the documents submitted whether the decision of the AAMS on the range of authorised games is actually based on objective criteria which the persons concerned are aware of in advance. 88. There is another point in addition to the foregoing which may be inferred from an examination of the documents provided by the parties and which, in any event, is — like all the other facts — for the referring court to check. I refer to the information that the games excluded from the AAMS list are mainly games which are offered by foreign operators and which may constitute the most ‘attractive’ part of their offer, distinguishing it from that of national operators. If the truth of those allegations is confirmed, there may be a finding in these cases of indirect discrimination which is difficult to justify by reference to the purported objectives. 89. In short, I believe that a system under which it is only permissible to offer the types of game which feature in a catalogue or a list, and under which the offer of any other types of game is penalised by the withdrawal of a licence, may be justified only if that system is based on objective, non-discriminatory criteria which are known in advance and if the administrative decisions relating to the drawing up of the list are open to challenge before the courts. b) Withdrawal because of the adoption of interim protective measures or the initiation of criminal proceedings against licence holders, their representatives or their directors (Article 23(2) of the model contract) 90. Although this point is not expressly raised in the question referred, (50) Mr Costa and Mr Cifone have referred in their pleadings to another case triggering the withdrawal of a licence which is also provided for in the model contract, specifically in Article 23(2). Under that provision, the AAMS will decide that a licence is to be withdrawn where, in relation to ‘licensees, their legal representatives or directors, interim protective measures have been adopted or a decision has been taken to remit a matter to the court with jurisdiction to decide on the substance, in connection with any of the offences referred to in Law No 55 of 19 March 1990 or any other offence liable to breach the relationship of trust with the AAMS, or in the case of serious or repeated infringements of the rules in force governing public gaming, including failure on the part of third parties which the licensee has entrusted with the supply of services ancillary to the distance collection of sports bets to comply with the legislation in force’. 91. Mr Costa and Mr Cifone have stated that, in practice, the introduction of that ground for withdrawal was a barrier to Stanley’s participation in the 2006 tendering procedures, since many of its Italian representatives were facing criminal charges at that time, which was prior to the Placanica judgment, hence prior to the decisions to discontinue the criminal proceedings which were then underway against them. 92. In the light of the foregoing, Mr Costa and Mr Cifone submit that that withdrawal provision (which entails forfeiture of the guarantee) constitutes a restriction on the freedom to provide services and the freedom of establishment which is contrary to the Treaty. (51) 93. A measure intended to prevent that type of activity from being engaged in by persons who may be of doubtful character appears in principle to be an adequate instrument for attaining the objective of combating fraud and illicit betting and gaming, and the fact that Article 23(6) of the model contract provides that the person concerned has the right to seek compensation for subsequent damage where withdrawal of the licence is later revealed to be unfounded is a not inconsiderable element of proportionality. (52) Irrespective of that, this ground for the withdrawal of a licence (which, surprisingly, is invented by a contractual document) could raise a number of problems from the point of view of proportionality. 94. The first problem is the apparently premature nature of the withdrawal decision, which is triggered by the initiation of any criminal proceedings and, therefore, before any finding of guilt. Article 23(2) of the model contract refers to the adoption of interim protective measures and to the decision to remit the matter to the court with jurisdiction to decide on the substance (53) as factors which determine the withdrawal of a licence. In that regard, I believe that the fact that the decision concerning withdrawal is adopted before there is a court judgment finding the person concerned guilty as charged is not a factor which determines the unlawfulness of the measure, which could be regarded as proportionate given that the adoption of interim protective measures and the opening of criminal proceedings are, under Italian law, decisions based on evidence capable of giving rise to reasonable doubt as to the good character of the persons concerned. It should be borne in mind, moreover, that Article 23(6) provides for the possibility of reparation. 95. More worthy of consideration is the second problem, which relates to the excessively broad definition in Article 23(2) of the model contract of the criminal offences in relation to which decisions resulting in the withdrawal of a licence must be adopted. That provision refers, first of all, to the ‘offences referred to in Law No 55 of 19 March 1990’, (54) a case which is sufficiently delimited and justified in the light of the seriousness of the offences concerned (offences relating mainly to mafia activity). Next, however, the provision refers in much more general terms to ‘offences liable to breach the relationship of trust with the AAMS’. Unless the referring court considers that the latter phrase is a sufficiently clear description of the types of offence to which that provision refers, Article 23(2) of the model contract may, in this particular regard, be vitiated by a lack of proportionality, because it could authorise the Italian public authorities to adopt a decision with such serious consequences as the withdrawal of a betting or gaming licence in situations which are entirely unrelated to the management of gaming and betting. 96. In summary, I believe that a provision under which a betting or gaming licence is to be withdrawn where, in relation to licensees, their representatives or directors, interim protective measures have been adopted or a decision has been taken to remit a matter to the court with jurisdiction to decide on the substance, is not contrary to Articles 49 TFEU and 56 TFEU, provided that this ground for withdrawal is delimited by reference to criminal offences related to betting or gaming activities and those offences are clearly defined. VII – Conclusion 97. Accordingly, I propose that the Court of Justice should reply as follows to the question referred for a preliminary ruling by the Corte Suprema di Cassazione: In relation to the freedom of establishment and the freedom to provide services in the sports betting sector, Articles 49 TFEU and 56 TFEU must be interpreted as meaning that, in the context of a State monopoly and a system of licences and authorisations: (a) they preclude national legislation which expressly and effectively entrenches clear protection for the holders of licences granted at an earlier time on the basis of a procedure under which some operators were unlawfully excluded. It is for the national court to determine whether the national legislation includes a provision with that meaning and scope; (b) they preclude national legislation which in fact ensures the maintenance of market positions acquired on the basis of a procedure under which some operators were unlawfully excluded; in particular, they preclude a prohibition on new licensees locating their outlets within less than a specified distance from those already in existence; (c) they preclude national legislation under which a gaming licence is to be withdrawn where the licensee engages in cross-border gaming activities, irrespective of the form in which those activities are pursued, and even though there is the possibility of direct contact between consumer and operator and where physical checks for police purposes can be made of an undertaking’s intermediaries who are present on national territory; (d) they do not preclude national legislation under which it is permissible to offer only the types of game which feature in a catalogue or on a list, and under which the offer of any other types of game is penalised by the withdrawal of a licence, provided that the administrative decisions relating to the drawing up of the list are based on objective, non-discriminatory criteria which are known in advance and provided that they are open to challenge before the courts; (e) they do not preclude national legislation under which a betting or gaming licence is to be withdrawn where, in relation to the licensees, their representative or directors and in the context of specific criminal proceedings, interim protective measures have been adopted or a decision has been taken to remit a matter to the court with jurisdiction to decide on the substance, provided that that ground for withdrawal is delimited by reference to criminal offences related to gaming activities and those offences are clearly defined. 1 – Original language: Spanish. 2 – Case C‑67/98 [1999] ECR I‑7289. 3 – Case C‑243/01 [2003] ECR I‑13031 (‘Gambelli’). 4 – Joined Cases C‑338/04, C‑359/04 and C‑360/04 [2007] ECR I‑1891 (‘Placanica’). 5 – For a summary of that Italian case‑law, see Ruotolo, G.M., ‘Il regime italiano del gambling all’esame della Corte di giustizia: rien ne va plus’, Diritto pubblico comparato ed europeo. III (2007), p. 1399. See also the commentaries on Placanica by Gnes, M. in Giornale di Diritto Amministrativo, No 8/2007, p. 833, and Schiano, R. in Revue du Droit de l’Union Européenne, 2/2007, p. 461. 6 – GURI No 18 of 11 August 2006. 7 – Replacing Article 1(287) of Law No 311 of 30 December 2004 (Finance Law 2005). 8 – Replacing Article 1(498) of Law No 311 of 30 December 2004. 9 – Testo Unico delle Leggi di Pubblica Sicurezza, as amended by Law No 388 of 23 December 2000. 10 – As amended by Law No 388 of 23 December 2000. 11 – Ordinary supplement to GURI No 305 of 31 December 2002. 12 – GURI No 111 of 14 May 2005. 13 – Action No 10869/2006. 14 – Case C‑379/98 PreussenElektra [2001] ECR I‑2099, paragraph 38; Case C‑169/07 Hartlauer [2009] ECR I‑1721, paragraph 24; and Joined Cases C‑316/07, C‑358/07 to C‑360/07, C‑409/07 and C‑410/07 Stoβ and Others [2010] ECR I‑8069 (‘Stoβ’), paragraph 51. 15 – Orders in Case C‑157/92 Banchero [1993] ECR I‑1085, paragraph 4; Case C‑167/94 Grau Gomis and Others [1995] ECR I‑1023, paragraph 8; and Case C‑45/08 Spector Photo Group and Van Raemdonck [2009] ECR I‑12073, paragraph 26. 16 – See, inter alia, Case C‑55/94 Gebhard [1995] ECR I‑4165, paragraph 37, and Case C‑76/90 Säger [1991] ECR I‑4221, paragraph 12. 17 – See, inter alia, Gambelli, paragraphs 65 and 67. 18 – Case C‑275/92 [1994] ECR I‑1039. 19 – Schindler, paragraphs 60 and 61. See, to the same effect, Case C‑124/97 Läärä and Others [1999] ECR I‑6067, paragraph 13; Zenatti, paragraphs 14 and 15; Gambelli, paragraph 63; Placanica, paragraph 47; Case C‑42/07 Liga Portuguesa de Futebol Profissional and Bwin International [2009] ECR I‑7633 (‘Liga Portuguesa’), paragraph 57; and Stoβ, paragraphs 76 and 77. 20 – Placanica, paragraph 48. 21 – See, inter alia, Placanica, paragraph 46. 22 – Paragraph 54. By contrast with Gambelli, in which the Court left the assessment of the real objectives of the legislation at issue to the Italian court, in Placanica the Court chose to carry out that assessment itself, in the light of the information provided by the Corte Suprema di Cassazione and the Italian Government. 23 – That decision was taken before Placanica, albeit — as will be seen below — in line with the possible courses of action put forward in that judgment. 24 – Placanica, paragraph 55. In accordance with paragraph 63 of Liga Portuguesa, ‘the fight against crime may constitute an overriding reason in the public interest that is capable of justifying restrictions in respect of operators authorised to offer services in the games-of-chance sector. Games of chance involve a high risk of crime or fraud, given the scale of the earnings and the potential winnings on offer to gamblers’. 25 – Placanica, paragraph 49, and Stoß, paragraph 93. 26 – Gambelli, paragraph 59, and Placanica, paragraph 42. 27 – Liga Portuguesa, paragraphs 63 and 70. 28 – Even though it is a measure which is applicable without distinction, it would impede or make less attractive the exercise of those freedoms by citizens of the Union, thereby affecting intra-Community trade and access to the market for undertakings from other Member States. To that effect, see Case C‑442/02 CaixaBank France [2004] ECR I‑8961, paragraph 11; Case C‑299/02 Commission v Netherlands [2002] ECR I‑9761, paragraph 15; and Case C-518/06 Commission v Italy [2009] ECR I‑3491, paragraph 64. 29 – It is well known that, according to case‑law, purely economic objectives cannot constitute an overriding reason in the public interest for those purposes. To that effect, see Case C‑400/08 Commission v Spain [2011] ECR I‑1915, paragraphs 74 and 95. 30 – Paragraph 63 of Placanica concerns the consequences of the unlawful exclusion of a certain number of operators from the 1999 tendering procedures, stating expressly that, ‘[i]n that connection, appropriate courses of action could be the revocation and redistribution of the old licences or the award by public tender of an adequate number of new licences’. 31 – Placanica, paragraph 63. See also, to that effect, the judgments cited therein: Case C‑453/99 Courage and Crehan [2001] ECR I‑6297, paragraph 29, and Joined Cases C‑329/04 and C‑422/04 i-21 Germany and Arcor [2006] ECR I‑8559, paragraph 57. 32 – Converted into Law No 184 of 19 November 2008 on urgent measures to comply with Community obligations in relation to betting and gaming (GURI No 276 of 25 November 2008). 33 – The distance varies according to the number of inhabitants in the locality and depending on whether the marketing of betting and gaming is the outlet’s main activity or an ancillary activity. 34 – Article 38(4)(f) and (g) laid down similar provisions for outlets for bets on horse racing. 35 – Placanica, paragraph 54. 36 – Joined Cases C‑570/07 and C‑571/07 [2010] ECR I‑4629. 37 – Blanco Pérez and Chao Gómez, paragraph 90 and the case‑law cited. 38 – See, for example, Blanco Pérez and Chao Gómez, paragraph 64. 39 – Case C‑384/08 [2010] ECR I‑2055. 40 – Attanasio Group, paragraphs 53 to 56. 41 – Joined Cases C‑188/10 and C‑189/10 Melki and Abdeli [2010] ECR I‑5667, paragraph 49. 42 – The Court adopted a similar approach in Melki. Faced with a problem concerning the interpretation of national law, the Court provided the national court with two alternative solutions: the starting point for the first was an interpretation of the provision at issue along the lines suggested by the national court, while the second interpretation was based on national case‑law which took a different approach and which, the Court argued, might accord with EU law (Melki, paragraph 50). 43 – As I have already indicated, these are referred to in Mr Costa’s pleadings. 44 – Liga Portuguesa, paragraph 70. 45 – Liga Portuguesa, paragraph 69. 46 – Paragraphs 111 and 112. 47 – That mechanism is governed by Article 5 of Decree No 111 of 1 March 2006. 48 – Stoß, paragraphs 95 and 96. 49 – Case C‑205/99 Analirand Others [2001] ECR I‑1271, paragraph 38; Case C‑389/05 Commission v France [2008] ECR I‑5337, paragraph 94; Case C-169/07 Hartlauer [2009] ECR I‑1721, paragraph 64; Case C‑203/08 Sporting Exchange [2010] ECR I4695, paragraphs 49 and 50; and Case C‑46/08 Carmen Media Group [2010] ECR I‑3973, paragraphs 86 and 87. 50 – Which refers in general terms, however, to ‘cases in which the licence may be withdrawn’. 51 – Mr Costa and Mr Cifone take the view that that ground for withdrawal was in fact a ground for exclusion from the tendering procedures, an assertion which the Italian Government has disputed. In my opinion, that point is irrelevant for the purposes of examining the substance of the cases under consideration because, on any view, the fact that some of Stanley’s Italian representatives were facing criminal charges at the time of the new tendering procedures appears to have influenced its decision not to participate in those procedures (in any case, the licences would have been withdrawn almost immediately). 52 It is nevertheless necessary to qualify that remark as a consequence of the fact that, after the present Opinion had been delivered, Mr Cifone’s representative forwarded to the Court the full version of Article 23 of the model contract, of which only a partial version had been available to the Court earlier. In the light of the full version of that provision, it is possible that the right to reparation referred to in Article 23(6) of the model contract is conferred solely on the AAMS and not, as initially suggested, to the licensee. The proper construction of that provision is, in any event, a matter for the national court. 53 – That decision is adopted at the end of the preliminary investigation of the case, when the criminal proceedings proper begin. For a description to those stages of criminal procedure in Italy, see Case C‑105/03 Pupino [2005] ECR I‑5285, paragraphs 13 and 14. 54 – New measures for the prevention of Mafia-type criminality and other serious dangers to society.