Order of the Court (Eighth Chamber) of 16 February 2012 — Ministero dell’Interno, Questura di Caltanissetta v Massimiliano Rizzo

(Case C‑107/11)

Article 104(3), first subparagraph, of the Rules of Procedure — Freedom of establishment — Freedom to provide services — Betting and gaming — Collection of bets on sporting events — Licence required — Action to be taken following an infringement of European Union law in the awarding of licences — Award of 16 300 additional licences — Principle of equal treatment and the obligation of transparency — Principle of legal certainty — Protection of holders of earlier licences — National legislation — Mandatory minimum distances between betting outlets — Whether permissible — Cross-border activities analogous to those engaged in under the licence — Prohibited by national legislation — Whether permissible

1. Freedom to provide services — Freedom of establishment — Restrictions — Gambling — National legislation prohibiting, on pain of criminal penalties, the collecting of bets without a licence or authorisation — Licence or authorisation refused in breach of Union law (Arts 43 EC and 49 EC) (see para. 7, operative part 1)

2. Freedom to provide services — Freedom of establishment — Restrictions — Gambling — National legislation prohibiting the collecting of bets without a licence or police authorisation — Operator excluded from the call for tenders for the award of such licences, in breach of Union law (Arts 43 EC and 49 EC) (see para. 8, operative part 2)

3. Freedom to provide services — Freedom of establishment — Gambling — National legislation prohibiting, on pain of criminal penalties, the collecting of bets without a licence or authorisation — Conditions for the withdrawal of licences granted at the end of a tendering procedure (Arts 43 EC and 49 EC) (see para. 9, operative part 3)

Re:

Reference for a preliminary ruling — Consiglio di Giustizia Amministrativa per la Regione siciliana — 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 Arts 49 and 56 TFEU).

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.