Opinion of the Advocate General — ECLI:EU:C:2003:156
Date: 2003-03-13
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment 
Freedom of establishment — Freedom to provide services — Restrictions — National 
legislation prohibiting, on pain of criminal penalty, the collection of bets without a licence 
or authorisation — Not permissible — Justification in the public interest — Com­
pliance with the principles of proportionality and non-discrimination — Investigation 
by the national courts 
(Arts 43 EC and 49 EC) 
I - 13031 
SUMMARY — CASE C-243/01 
National legislation which prohibits on 
pain of criminal penalties the pursuit of 
the activities of collecting, taking, booking 
and forwarding offers of bets, in particular 
on sporting events, without a licence or 
authorisation from the Member State con­
cerned constitutes a restriction on freedom 
of establishment and the freedom to pro­
vide services provided for in Articles 43 EC 
and 49 EC respectively, which, to be 
justified, must be based on imperative 
requirements in the general interest, be 
suitable for achieving the objective which 
they pursue and not go beyond what is 
necessary in order to attain it and be 
applied without discrimination. 
In that connection, it is for the national 
court to determine whether such legis­
lation, taking account of the detailed rules 
for its application, actually serves the aims 
which might justify it, and whether the 
restrictions it imposes are disproportionate 
in the light of those objectives. 
In particular, in so far as the authorities of 
a Member State incite and encourage con­
sumers to participate in lotteries, games of 
chance and betting to the financial benefit 
of the public purse, the authorities of that 
State cannot invoke public order concerns 
relating to the need to reduce opportunities 
for betting in order to justify measures such 
as those at issue in the main proceedings. 
Furthermore, where a criminal penalty was 
imposed on any person who from his home 
in a Member State connects by internet to a 
bookmaker established in another Member 
State the national court must consider 
whether this constitutes a disproportionate 
penalty. 
(see paras 65, 69, 72, 76, 
operative part) 
I - 13032