62011CO0368_EN
Subject of the case
Operative part
Subject of the case
Re:
Reference for a preliminary ruling — Tribunale di Santa Maria Capua Vetere — Freedom of movement of persons — Freedom to provide services — Activity of collecting bets — Domestic legislation making the exercise of that activity conditional upon the obtaining of authorisation and a public security permit — Protection afforded to persons obtaining authorisations and permits by means of award procedures that unlawfully excluded other operators from the same sector — Whether compatible with Articles 43 EC and 49 EC (now Articles 49 and 56 TFEU).
Operative part
Operative part
1. Articles 43 EC and 49 EC and the principles of equal treatment and effectiveness must be interpreted as precluding a Member State which, in breach of European Union law, has excluded a category of operators from the award of licences for undertaking an economic activity and seeks to remedy that breach by putting out to tender a significant number of new licences, from protecting the market positions acquired by the pre-existing operators, by providing, inter alia, for minimum distances between the establishments of new licence holders and those of pre-existing operators.
2. Articles 43 EC and 49 EC must be interpreted as precluding penalties for engaging in the organised activity of collecting bets without a licence or police authorisation from being imposed on persons linked to an operator that was excluded from an earlier tendering procedure in breach of Union law, even after the new call for tenders intended to remedy that breach of Union law, in so far as that call for tenders and the subsequent award of new licences have not in fact remedied the unlawful exclusion of that operator from the earlier call for tenders.
3. It follows from Articles 43 EC and 49 EC, the principle of equal treatment, the obligation of transparency and the principle of legal certainty that the conditions and detailed rules of a call for tenders such as that at issue in the main proceedings and, in particular, the provisions concerning the withdrawal of licences granted at the end of that tendering procedure, such as those laid down in Article 23(2)(a) and (3) of the model contract between the Independent Authority for the Administration of State Monopolies and the successful tenderer for the licence for betting on events other than horse-races, must be drawn up clearly, precisely and unambiguously, a matter which it is for the referring court to verify.