Opinion of the Advocate General — ECLI:EU:C:2022:290
Date: 2022-04-07
Language of the case: Italian
Subject matter: Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-475/20 – 1 
Case C-475/20 
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: 
28 September 2020 
Referring court: 
Consiglio di Stato (Council of State, Italy) 
Date of the decision to refer: 
16 July 2020 
Appellant: 
Admiral Gaming Network Srl 
Respondents: 
Agenzia delle Dogane e dei Monopoli 
Ministero dell’Economia and delle Finanze 
Presidente del Consiglio dei Ministri 
      
Subject matter of the main proceedings 
Appeal proceedings against a judgment of the Tribunale amministrativo regionale 
Lazio (Regional Administrative Court, Lazio, Italy) (‘the court of first instance’) 
dismissing an action seeking annulment of an administrative measure which, in 
implementing a statutory provision, reduced the fee payable to an economic 
operator that carries on the activities of gaming using entertainment and recreation 
machines under a licence issued by the State. 
Subject matter and legal basis of the reference 
Pursuant to the second paragraph of Article 267 TFEU, interpretation is sought of 
the provisions of the TFEU on freedom of establishment and freedom to provide 
services, and of the principle of the protection of legitimate expectations, in order 
that it may be ascertained whether they preclude national legislation which, in 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-475/20 
 
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order to increase State revenue, reduces the fee agreed to in a licensing agreement 
concluded between the State and an economic operator that carries on the 
activities of gaming using entertainment and recreation machines during the term 
of that licence. 
Questions referred for a preliminary ruling 
1. Is the introduction of a provision, such as that contained in Article 1(649) of 
Law No 190/2014, which reduces commission and fees only in respect of a 
specific and limited category of operator, namely operators of games played 
on gaming machines, and not in respect of all operators in the gaming sector, 
compatible with the exercise of the freedom of establishment guaranteed by 
Article 49 TFEU and with the exercise of the freedom to provide services 
guaranteed by Article 56 TFEU? 
2. Is the introduction of a provision such as the abovementioned provision 
contained in Article 1(649) of Law No 190/2014, which for economic 
reasons alone reduced the fee agreed to in a licensing agreement concluded 
between a company and an Italian State authority during the term of that 
agreement, compatible with the EU-law principle of the protection of 
legitimate expectations? 
Provisions of EU law relied on 
Article 49 TFEU – freedom of establishment within the European Union 
Article 56 TFEU – freedom to provide services 
Principle of protection of legitimate expectations 
Provisions of national law relied on 
Article 1(649) of legge del 23 dicembre 2014, n. 190 – Disposizioni per la 
formazione del bilancio annuale e pluriennale dello Stato (‘Legge di stabilità per il 
2015’) (Law No 190 of 23 December 2014 – Rules for establishing the annual and 
multiannual State budget (2015 Stability Law) (‘Law No 190/2014’)), and 
subsequent amendments and additions thereto, in particular 
Article 1(920) and (921) of legge del 28 dicembre 2015, n. 208 – Disposizioni per 
la formazione del bilancio annuale e pluriennale dello Stato (‘Legge di stabilità 
per il 2016’) (Law No 208 of 28 December 2015 – Rules for establishing the 
annual and multiannual State budget (2016 Stability Law)) 
ADMIRAL GAMING NETWORK 
 
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Succinct presentation of the facts and procedure in the main proceedings 
1 In Italy, the organisation of games of skill and pool betting, participation in which 
requires payment to be made and in which a cash prize may be won, is reserved 
for the State. The State has entrusted the management of this sector to the Agenzia 
delle dogane e dei monopoli (Customs and Monopolies Agency, Italy; ‘the 
ADM’). 
2 Entertainment and recreation machines must be connected to an electronic 
network set up by the administration, clearly for monitoring purposes. Network 
licence holders are selected by public tendering procedure; they manage the 
network and the machines connected to it in return for a fee. 
3 The revenue derived from the exercise of gaming activities must flow to the tax 
authorities, except for a percentage of the amounts collected on behalf of the 
State, which licence holders are allowed to withhold as fees for their service (in 
other words, commission). For license holders who carry on the activities of 
gaming using entertainment and recreation machines, several changes have been 
made to the fee system which are relevant in the present case. 
4 In the past, the calculation of those fees was determined on the basis of the 
contract notice and the licensing agreement concluded between the State and the 
licence holder. In essence, the following were deducted from the overall stakes: 
(a) players’ winnings; (b) the amounts due to other industry operators (managers 
and operators of gaming machines) under private-law contracts concluded with 
those industry operators by the licence holder; (c) the licence fee due to the ADM; 
(d) a substitute tax corresponding to a statutory percentage of the winnings and 
referred to as the PREU (prelievo erariale unico) (single levy). The amounts 
deducted represented the licence holder’s fee. 
5 The legislature subsequently intervened through Article 1(649) of Law 
No 190/2014, reducing the State resources for fees for licence holders and entities 
involved in the management and collection of bets using entertainment and 
recreation machines by EUR 500 million per annum, starting from 2015. 
6 By virtue of that law, from 1 January 2015: (a) industry operators are to pay 
licence holders the entire amount of the bets collected using those machines, net 
of the winnings paid; (b) licence holders, in exercising the public functions 
assigned to them, in addition to the amount paid ordinarily to the State by way of 
taxes and other charges due under the applicable legislation and on the basis of 
licensing agreements, are to pay EUR 500 million annually, by April and October 
each year, in proportion to the number of machines registered to each of them as 
at 31 December 2014. 
7 Under those new rules, the head of the ADM introduced a measure, adopted by 
15 January 2015, identifying the number of machines registered to each licence 
holder and quantifying the additional amounts due to the tax authorities. 
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8 By the measure of 15 January 2015, the ADM thus estimated the number of 
machines registered to each licence holder for 2015 and quantified the amounts 
owed by those licence holders. 
9 The company Admiral Gaming Network Srl is a licence holder for games played 
using entertainment and recreation machines. Considering that the measure 
significantly affected its profit margin, it contested that measure, alleging that the 
statutory provision implemented by the measure was unlawful from the point of 
view of national constitutional law and EU law. 
10 The court of first instance referred the matter to the Corte costituzionale 
(Constitutional Court, Italy). 
11 During the constitutional proceedings, the legislature intervened by amending the 
legislation in question through Article 1(920) and (921) of Law No 208/2015, to 
the effect that: (a) the levy, which was due each year from 2015, was instead 
confined to that year only, becoming a ‘one-off’ measure; (b) the requirement to 
pay the additional amount applied to all industry operators, and no longer to 
licence holders alone. 
12 The Constitutional Court therefore referred the case back to the court of first 
instance so that it might re-examine the relevance of the issue of constitutionality 
following that legislative amendment. 
13 The court of first instance dismissed the action, ruling that the intervention of the 
legislature had resolved all legal defects from the point of view of national 
constitutional law and EU law. 
14 Admiral Gaming Network Srl brought an appeal against that decision before the 
referring court, arguing that those defects remained unchanged. 
15 The referring court decided to refer of its own motion the questions regarding the 
compatibility of the rules of EU law with the national legislation in question for a 
preliminary ruling, for the reasons summarised below. 
Succinct presentation of the reasons for the reference 
16 The referring court observes that the amendment provided for in Law 
No 208/2015 means that the appellant company must incur the levy, even as a 
‘one-off’ charge, for the amount determined by the contested measure of 
15 January 2015, with retroactive effect, since the levy introduced and imposed in 
2015 applies to income earned in 2014. 
17 In the first place, in the opinion of the referring court, this amounts to a restriction 
on the freedom of establishment and the freedom to provide services guaranteed 
by Articles 49 and 56 TFEU, since the levy renders the licenced activity carried 
on by that company less attractive. In that regard, reference is made to the case-
ADMIRAL GAMING NETWORK 
 
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law of the Court of Justice, according to which any measures, and in particular 
measures that affect the activity already carried on by a government licence holder 
in such a way as to prevent it from obtaining a return on its investment, that have 
the effect of prohibiting, impeding or even simply rendering less attractive the 
exercise of those freedoms may amount to restrictions on those freedoms 
(judgments of 11 June 2015, Berlington Hungary [and Others], C-98/14, and of 
20 December 2017, Global Starnet, C-322/16). 
18 Moreover, the referring court observes that, again according to the case-law of the 
Court of Justice, those restrictions must be justified by overriding reasons in the 
public interest, but that such reasons do not include the fact that the Member State 
simply needs to increase its tax revenue, unless this attains other, different 
objectives (judgments of 16 July 1998, ICI, [C-264/96]; of 7 September 2004, 
Manninen, C-319/02; and of 11 June 2015, Berlington Hungary [and Others], 
C-98/14). 
19 In that regard, the referring court has doubts as to whether the legislation at issue 
is based on overriding reasons in the public interest, since it appears to be inspired 
solely by an economic need to increase the State’s revenue (as is, moreover, 
explicitly stated in the basic rule, namely Article 1(649) of Law No 190/2014). 
20 More specifically, the referring court recalls that the judgment of the Court of 
Justice of 20 December 2017 in Global Starnet (C-322/16) found that previous 
intervention by the national legislature regarding the same licencing agreements 
was consistent with EU law. That intervention had altered the term of existing 
licences and required additional guarantees of financial capacity and regularity of 
conduct from licence holders. The measures in question undoubtedly imposed a 
financial burden on licence holders, but they were judged to have aims consistent 
with overriding reasons in the public interest – that is to say, they were intended to 
improve the profitability and financial soundness of licence holders and enhance 
their respectability and reliability, thereby preventing criminals from infiltrating 
the sector. However, the referring court takes the view that none of those reasons 
can be relied on for a simple financial levy such as the one at issue in the present 
proceedings. 
21 In the second place, the measure under examination also appears to have been 
adopted contrary to the principle of the protection of legitimate expectations, 
which, while not precluding unfavourable changes in legal relations, requires them 
to be foreseeable by a prudent trader (judgment of 8 June 1977, Merkur, C-97/76). 
22 In this respect, in the opinion of the referring court, the legislation in question has 
an unforeseeable effect on existing licensing agreements, degrading their financial 
terms and thus altering the cost/benefit calculation carried out by the licence 
holder at the time of concluding the licensing agreement with the State. 
23 In the third place, the referring court observes that the doubts as to the 
incompatibility of EU law with the legislation at issue are not called into question 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-475/20 
 
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by the ‘one-off’ nature conferred on the measure by Article 1(920) and (921) of 
Law No 208/2015. Indeed, there is nothing to prevent the legislature from 
subsequently intervening to re-propose an identical measure, which a ruling by the 
Court of Justice could, depending on the outcome, endorse or prevent. Moreover, 
the scale of the measure under examination, even assuming it to be extraordinary 
and not likely to be repeated, still remains considerable. 
24 In the fourth place, the referring court observes that the questions referred for a 
preliminary ruling raised here are relevant because, should EU law preclude the 
national legislation at issue, the referring court would have to uphold the appeal.